J.D. Vashani vs State of Gujarat

Jayant M. Patel, J.—The present appeal is directed against the order dated 12.3.2010 passed by the learned Single Judge of this Court in Special Civil Application No. 13665 of 2009, whereby the learned Single Judge has dismissed the petition.

The short facts of the case appears to be that on 23.5.1995, charge-sheet was issued to the appellant. Thereafter, Departmental Inquiry was initiated and in the meantime, the petitioner reached the age of superannuation. The disciplinary proceedings were continued and vide order dated 16.9.2008, penalty of cut in pension of Rs. 500/- per month for five years was imposed. As per the appellant, there was identical charge in the criminal case and in the said criminal case, he was acquitted by the learned Sessions Judge in Criminal Appeal No. 2241 of 1994. However, the said order of acquittal was not considered by the disciplinary authority while imposing punishment. The appellant preferred Special Civil Application No. 1120 of 2008, challenging the action of the disciplinary authority for imposition of punishment. This Court, vide order dated 26.2.2009, set aside the order of the disciplinary authority and directed the disciplinary authority to reconsider the matter after taking into account the order of acquittal of the criminal Court. The appellant, based on the order passed by this Court in SCA No. 1120 of 2008, made representation, including on the aspect of acquittal. The date was fixed initially by respondent No. 1-Secretary of the Panchayat Department, but as per the appellant, he could not remain present on account of the ill-health and thereafter, DDO-respondent No. 2 had called upon the appellant to remain present. The appellant remained present, made submissions and thereafter, DDO-respondent No. 2 herein passed the order dated 7.5.2009 at Annexure-M to the Special Civil Application, whereby he found that there is no case for reconsideration of the penalty imposed. Under these circumstances, the appellant preferred the petition being SCA No. 13665 of 2009 before this Court. The learned Single Judge found that the view taken by the disciplinary authority was just and proper and, therefore, did not interfere with the impugned order before him and dismissed the petition. Under these circumstances, the present appeal before the Division Bench of this Court.

We have heard Mr. Supehia, learned Counsel for the appellant, Mr. Banaji, learned AGP for respondent No. 1 and Mr. Vijay Patel, learned Counsel for respondent No. 2.

It is undisputed position that in the order dated 26.2.2009 passed by this Court in SCA No. 1120 of 2009, following direction was issued:-

"The impugned order passed by the disciplinary authority dated 16.9.2008 is hereby quashed and set aside and the matter is remanded to the disciplinary authority for considering the question of imposition of punishment/penalty in accordance with law and on merits after considering the effect of the order of acquittal passed by the competent criminal Court."

If the aforesaid direction is considered with the impugned order dated 7.5.2009, it is apparent that there is no consideration of the judgment of the criminal Court in appeal for acquittal of the appellant, nor such consideration is by the disciplinary authority, which was State Government i.e. Secretary, Panchayat Department. As such, the order has been passed by the DDO, who was not the competent authority to decide the question of reconsideration or modification of the penalty imposed, since DDO was not competent authority to impose punishment. The perusal of the first order for imposition of punishment dated 16th September, 2008 shows that such order has been passed by the Secretary of Panchayat Department of the State Government. Therefore, when this Court remanded the matter, the question of reconsideration was to be finalized by the Secretary of the Panchayat Department-respondent No. 1 herein and not DDO-respondent No. 2 herein.

However, Mr. Patel, learned Counsel appearing for respondent No. 2, attempted to contend that once the hearing was fixed before the Secretary of the Panchayat Department, but as the appellant did not remain present, the matter was relegated to DDO and he has taken decision.

In our view, when the competent authority was the Secretary of the Panchayat Department i.e. State Government, as such the issue of hearing also could not be delegated to DDO. Further, even if DDO was to give some comments, he ought to have forwarded the same to the Secretary of the Panchayat Department and he of his own could not finalize the aspect of reconsideration.

We would have further considered the aspect of appropriate action, but at this stage, Mr. Banaji, learned AGP declared before this Court that the Secretary of the Panchayat Department shall reconsider the matter in light of the direction already issued earlier in SCA No. 1120 of 2009 and shall pass appropriate orders in accordance with law on or before 30.11.2014.

Hence, we direct respondent No. 1-Secretary of the Panchayat Department to abide by the declaration made before this Court and to pass appropriate orders on or before 30.11.2014.

In view of the above, in any case, the order of the learned Single Judge cannot be sustained. Hence, the same is quashed and set aside. The impugned order dated 7.5.2009-Annexure-M to the petition is also quashed and set aside. Respondent No. 1 is directed to reconsider the matter in light of the observations made in the present order and the declaration made before this Court and appropriate orders shall be passed on or before 30.11.2014.

The appeal is allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs.