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2019 Supreme(Guj) 1048
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
G.M. Gohil Deputy Executive Engineer Bharuch - Petitioner
Versus
Gujarat Housing Board & Others - Respondents
Special Civil Application No. 2442 of 2004
Decided On : 02-05-2019
For the Petitioner: Ms. Harshal N. Pandya.
For the Respondent: Mr. Vishrut Jani, A.G.P., Mr. Y.N. Ravani.
Point of Law
By virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice
Headnote:
Constitution of India, Article 311(2) – Writ petition has initially challenged the show-cause notice dated 05.02.2004 issued by the Housing Commissioner. This Court vide interim order dated 24.02.2004 granted the stay against further inquiry – Held, Inquiry proceedings reveal that the same are conducted in the biased manner ignoring the defence of the petitioner in the form of report of M/s.Khambhati & Associates appointed by the respondent-Board and the statement of the defence witnesses cited by the petitioner – No explanation is also tendered for submission of final report on 21.01.2004, after the last inquiry officer was appointed – Impugned order of removal is required to be quashed and set aside. Since the petitioner has retired on reaching the age of superannuation during the pendency of the petition and he was also continued in service because of the interim orders of this Court and he is also paid the provisional pension. He would be entitled to retiral benefit – Petition allowed (Paras 15,16 and 17)
Facts of the Case:
The petitioner was serving as a Deputy Executive Engineer from the year 1983 to 1987 and he was in-charge of Housing Sub-Division at Nadidad. On 09.07.1992, the Block No.6 of flats of group of the aforesaid Housing Division collapsed. The respondent-Board issued a chargesheet to the petitioner dated 12.01.1995 for the alleged irregularities, which are said to have came to the notice of the authorities of the respondent-Board pursuant to the collapse of one Block of flats at Kapadvanj. The petitioner denied the charges and thereafter, he was subjected to detailed departmental inquiry. The inquiry officer submitted his report on 21.01.2004 holding the charges proved against the petitioner
Finding of the Court:
Inquiry proceedings reveal that the same are conducted in the biased manner ignoring the defence of the petitioner in the form of report of M/s.Khambhati & Associates appointed by the respondent-Board and the statement of the defence witnesses cited by the petitioner – No explanation is also tendered for submission of final report on 21.01.2004, after the last inquiry officer was appointed – Impugned order of removal is required to be quashed and set aside. Since the petitioner has retired on reaching the age of superannuation during the pendency of the petition and he was also continued in service because of the interim orders of this Court and he is also paid the provisional pension. He would be entitled to retiral benefit
Result: Petition allowed
JUDGMENT :
A.S. SUPEHIA, J.
1. In the present writ petition, the petitioner has challenged the order of removal passed by the respondent-Gujarat Housing Board(respondent-Board) as well the inquiry report dated 21.01.2004.
2. The petitioner, in the captioned writ petition has initially challenged the show-cause notice dated 05.02.2004 issued by the Housing Commissioner. This Court vide interim order dated 24.02.2004 granted the stay against further inquiry. However, it appears that the same was modified vide order dated 16.12.2004 and the respondent-Board was directed to proceed with the departmental inquiry. After the aforesaid order, the petitioner submitted his reply dated 30.12.2004 to the show-cause notice dated 05.02.2004. Thereafter, the petitioner was removed from the service, which was placed on record by way of Civil Application No.5290 of 2005. By the order dated 20.07.2005, this Court disposed of the Civil Application No.5290 of 2005 by issuing direction restraining the respondents from implementing the decision of removal and further it was ordered to pay provisional pension. Thereafter, the petitioner reached the age of superannuation on 30.07.2005. Thus, throughout the proceedings, the impugned order of removal has remained stayed.
3. The brief facts of the case are as under :
3.1 The petitioner was serving as a Deputy Executive Engineer from the year 1983 to 1987 and he was in-charge of Housing Sub-Division at Nadidad. On 09.07.1992, the Block No.6 of flats of group of the aforesaid Housing Division collapsed. The respondent-Board issued a chargesheet to the petitioner dated 12.01.1995 for the alleged irregularities, which are said to have came to the notice of the authorities of the respondent-Board pursuant to the collapse of one Block of flats at Kapadvanj. The petitioner denied the charges and thereafter, he was subjected to detailed departmental inquiry. The inquiry officer submitted his report on 21.01.2004 holding the charges proved against the petitioner. Thereafter, the show-cause notice was issued on 05.02.2004, which was challenged by him in the captioned writ petition as referred hereinabove.
4. Learned advocate Mr. Joshi for learned advocate Ms. Harshal Pandya for the petitioner has submitted that the inquiry officer has acted in a biased manner and hence, the entire departmental proceedings are required to be set aside.
4.1 He has invited attention of this Court to the observations made by the inquiry officer in his report and has submitted that the defence witnesses who were produced by the petitioner in the proceedings, their evidence/deposition was totally ignored on the ground that they have supported the case of the petitioner.
4.2 Learned advocate Mr. Joshi has further submitted that the State Government had entrusted the inspection to one consulting engineer namely, M/s.Khambhati & Associates, who prepared a report on 27.04.1994, which was in favour of the petitioner, is totally ignored by the inquiry officer. He has submitted that though the detailed report was available, the same was not produced by the respondent-Board and despite the request of the petitioner, such report of M/s.Khambhati & Associates was not produced and ultimately, the same was produced by the petitioner. He has submitted that the aforesaid report is totally ignored, which he had produced in his defence before the inquiry officer and inquiry officer had relied upon the report of Quality Control and Inspection Unit dated 20.06.1993, which shows bias against the petitioner.
4.3 He has further submitted that a close scrutiny of the report dated 27.04.1994 reveals that the petitioner cannot be faulted with the weak construction of the flats, which had collapsed. He has submitted that the report mainly shows that there was spurious cement used in the construction and the petitioner, at the relevant time, had also invited attention of such cement to the concerned authorities. However, such request as well as the report prepared, at t
