IMPORTANT POINTS
(1) The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing.
(2) The denial of opportunity to hearing was per se violative of The principles of natural justice.

N.V.ANJARIA, J.

1. The question which arises for consideration is whether the delinquent-employee is entitled to a notice by the disciplinary authority when the disciplinary authority disagreeing with the exoneration of the delinquent by the inquiry officer, records tentative finding of guiot, or whether the disciplinary authority could straightway proceed by issuing the notice for imposition of penalty.

2. The petitioner has prayed for setting aside of order of penalty dated 28th March, 2005 passed by the disciplinary authority in Departmental InquiryNo.03 of 2001 as well as the appellate order dated 31st March, 2011 passed by the second respondent in Departmental Appeal No.05. It is further prayed to set aside order dated 30th January, 2012 of the second respondent whereby prayer of the petitioner to reopen the departmental appeal was rejected. The petitioner has further prayed to set aside order of suspension dated 29th March, 2001 and pay to him the salary and intervening increments during the suspension period. It is prayed to reduce the penalty of withholding of two increments with cumulative effect, to withholding of one increment without cumulative effect.

2.1 An alternative prayer is made seeking a direction to remand the Departmental Inquiry to the first respondent for disposal thereof in accordance with law from the stage where the inquiry was vitiated.

3. The petitioner had been serving as English Stenographer, Grade II, and thereafter had been serving as Private Secretary (English Stenographer, Grade I) under the District Court, Rajkot. The petitioner faced departmental inquiry. Respondent No.1 was the Disciplinary Authority whereas respondent No.2 was the Appellate Authority. The charges levelled against the petitioner were related to an incident which, according to the petitioner, took place on 14th August, 2001 when one Mr. Zala, co-employee and the colleague who was working as Gujarati Stenographer, demanded from the petitioner copy of the merit list for the children of the court employees prepared for the purpose of prize distribution programme. The petitioner refused as the same was required to be kept confidential. The incident resulted into heated altercation and also into physical attack on the petitioner by said co-employee The complaint and cross-complaint were filed. The said co-employee as well as the petitioner were subjected to departmental inquiry under Rule 9(2) of the Gujarat Civil Services(Discipline and Appeal) Rules, 1971.

3.1 The memorandum of article of charges dated 29th August, 2001 given to the petitioner alleged commission of misconduct of unbecoming of a government servant by acting in quarrelsome way, using indecent language, offensive words and behaviour against the said co-employee and that a criminal case was also registered by the said co-employee against the petitioner. With allegations about such acts of misconduct while on duty, the petitioner was given as how cause notice calling upon him as to any of the charge levelled if proved, should not be considered sufficient for imposing any of the penalties specified in the Gujarat Civil Services (Conduct, Discipline and Appeal) Rules, 1971.

3.2 The petitioner filed statement of defence on 27th Noevmber, 2001. It appears that the petitioner addressed an application-cum-representation dated 13th March, 2002 to the first respondent-disciplinary authority in which he appears to have raised objection and grievance about appointment of inquiry officer. At the end of the departmental inquiry, the inquiry officer submitted his report dated 26th March, 2004.The charges against the petitioner were found to have not been proved and from all the four charges, the petitioner was exonerated. The inquiry officer recorded his findings, extracting the relevant part, as under.

“25. Looking to the above entire evidence, it clearly appears that it has been established that on the day of the incident, i.e. 14-8-2001, a list with regards to prize distr