Allowed

Patel Ramchandra Keshavlal v. the Dist.Development Officer

Gujarat HC10 Dec 2018SCA/24641/2006

Case brief

AI extract

What is this about?

The High Court quashed a disciplinary order passed over 31 months after the original penalty, violating time limits under Rules 23 and 25. The Court also directed the authorities to calculate and pay the petitioner's pending retirement dues and pension within three months.

What did the court decide?

Quashed the impugned order dated 12.10.2006 and directed the respondents to calculate and pay the petitioner's retirement dues and pension within three months.

Patel Ramchandra Keshavlal Vs the… — Pension and Retirement Benefits | Gujarat HC (2018)

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C/SCA/24641/2006 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 24641 of 2006

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE A.J. SHASTRI Sd/-

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1	Whether Reporters of Local Papers may be allowed to see the judgment ?	No
2	To be referred to the Reporter or not ?	No
3	Whether their Lordships wish to see the fair copy of the judgment ?	No
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	No

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PATEL RAMCHANDRA KESHAVLAL

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Versus

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THE DIST.DEVELOPMENT OFFICER

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=============================================== Appearance :

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MR BIPIN P JASANI(360) for the PETITIONER(s) No. 1 MR MANISH J PATEL(2131) for the RESPONDENT(s) No. 1,2 RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1,2

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CORAM : HONOURABLE MR.JUSTICE A.J. SHASTRI

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Date : 10/12/2018

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ORAL JUDGMENT

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[1] The present petition under Article 226 of the Constitution of India is filed for the purpose of following reliefs:

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“6.(A) YOUR LORDSHIPS may be pleased to issue an appropriate writ, order or direction by quashing and setting aside the impugned order dated 12.10.2006 as per Annexure-A passed by the respondent No.1 as violative of Articles 14 and 16 of the Constitution of India and against the

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Page 1 of 7

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C/SCA/24641/2006 JUDGMENT

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principle of naturel justice and further be pleased to direct the respondents to consider the case of the petitioner for future and further promotion;

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(B) YOUR LORDSHIPS may be pleased to issue an appropriate writ, order or direction by staying the impugned order dated 12.10.2006 as per Annexure-A passed by the respondent No.1 from further implementation, operation and execution and further be pleased to stay the ensuing departmental inquiry, pending admission, hearing and final disposal of the present petition;

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(C) YOUR LORDSHIPS may be pleased to issue appropriate writ or direction, directing the respondents not to withhold the future and further promotion of the petitioner and place the detailed report under which circumstances the petitioner has not been promoted on the next promotion post, pending admission, hearing and final disposal of the present petition;

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(D) To grant such other and further relief/s as the Hon’ble Court may deem fit in the facts and circumstances of the case.”

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[2] The case of the petitioner that petitioner was working as Talati-cum-Mantri who was originally appointed on 15.05.1970 in respondent Sabarkantha District Panchayat and has passed of more than a period of 36 years sincere service. The petitioner has attained the superannuation on 30.06.2008. During the entire service career for a period of 36 years, the service tenure has remained blotless and his next promotion was to that of Circle Inspector. However, during the passage of time, on account of certain so called irregularities with a view to deprive the petitioner from his promotional avenues, a process was initiated against the petitioner which has culminated into an order of penalty dated 06.03.2004 passed by respondent No.2 whereby the punishment inflected upon was stoppage of two annual increments without future effect and the said punishment, according to the petitioner, has already been implemented and exhausted.

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Page 2 of 7

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C/SCA/24641/2006 JUDGMENT

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[2.1] However, it is further the case of petitioner that surprisingly after almost a period of 31 months, the respondent No.1 on his own motion has issued an order on 12.10.2006 in exercise of powers under the provisions of Rule 23 and Rule 25 of the Gujarat Panchayat Service (Discipline and Appeal) Rules 1997 (hereinafter referred to as the “Rule”) and has passed an order to take this concluded matter into revision and start a fresh inquiry against the petitioner. In response to that the petitioner has been served with a consequential notice dated 06.11.2006 calling upon the petitioner to remain present on 30.11.2006 on preliminary hearing. It is at that stage, the present petitioner has approached this Court by invoking extraordinary jurisdiction of this Court by way of present petition.

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[3] On perusal of the record, it appears that vide order dated 29.11.2006, the Court has issued notice returnable and in the meantime, ad-interim relief in terms of paragraph 6(B) is granted till next date. However, it has been reported that even after the said order of interim relief throughout till date the interim protection is continued. With these backgrounds, the present petition has come up for consideration before this Court today.

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[4] Mr.Bipin P.Jasani, learned advocate appearing for the petitioner has submitted that with a view to deprive the petitioner from promotional avenues as a part of systematic design, a suo moto powers have been exercised after almost a period of 31 months though the earlier penalty has already been exhausted and implemented in true letter and spirit. Therefore, after having exhausted, the said penalty order dated 06.03.2004 it is not open for respondent authority to invoke the jurisdiction under Rule 23 and Rule 25 of the Rules. It has further been

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C/SCA/24641/2006 JUDGMENT

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submitted that even while passing an order under Rule 23 as required under Rule 25, there is no explanation nor condonation of delay in any form which has also violated Rule 25 ex facie . It has further been submitted by learned advocate for the petitioner that the petitioner is having all throughout a service career of more than 36 years and on account of this pendency of petition though the petitioner has attained the age of superannuation is merely getting provisional pension and all retirement dues are still awaiting. As a result of this, since there is an ex facie violation of Rule 23 and Rule 25, the petition in terms of interim order may kindly be allowed, as has been requested.

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[5] To meet with the stand taken by learned advocate for the petitioner, Mr.Manish J.Patel, learned advocate appearing on behalf of respondents No.1 and 2-authorities has also tried to make an attempt to oppose the petition by asserting that there was a serious irregularity and it was always open for the authorities to resort to the provision contained under Rule 23 and Rule 25 permitting the authority to initiate the proceedings, even after the delayed period, and therefore, has requested that there are no irregularities of any nature in initiating process afresh against the petitioner. However, while countering the stand of the petitioner, learned advocate candidly could not cross the effect of Rule 23 and Rule 25 and has left the matter to the discretion of the Court.

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[6] Having heard learned advocates appearing for the parties and having gone through the material on record, before dealing with the submissions of learned advocate Mr.Jasani, the Court would like to incorporate Rule 23 and Rule 25, which reads as under:

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C/SCA/24641/2006 JUDGMENT

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“23. The authority to which an appeal against an order imposing any of the penalties specified in Rule 6 lies may, of its own motion or otherwise, call for the record of any proceeding under these rules and review any order passed in such a case and, may, after consultation with the Board where such consultation is necessary pass such orders as it deems fit as if the Panchayat servant had preferred an appeal against orders:

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Provided that no action under this rule shall be taken after the expiry of a period of more than six months from the date of such order.”

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25. Save as otherwise expressly provided in these rules, the authority competent under these rules to make any order, may, for good and sufficient reasons or if sufficient cause is shown, extend the time specified in these rules for anything required to be done under these rules or condone any delay.”

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[7] Rule 23 is empowering the authority to initiate disciplinary proceedings by taking review of the earlier orders which have been passed. However, proviso to that Rule clearly spelts out that no action shall be taken after lapse of more than six months in any case. Now, here is a case in which the impugned order undisputedly is passed on 06.03.2004, whereas, the respondent No.1 has passed an order merely on a office note dated 10.10.2006 and after more than a period of 31 months, has initiated and passed an order on 12.10.2006 which is ex facie violating the mandate of the statute. On this count alone, it appears to this Court that the authority has acted contrary to the mandate of the statute and these Rules are undisputedly having statutory effect.

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[7.1] It is a settled position of law by catena of decision that the statutory provision must be given full effect. As a result of this, the Court is of the opinion that spirit of Rule 23 is not maintained by the authority which has constrained this Court to set aside the impugned action.

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C/SCA/24641/2006 JUDGMENT

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[8] Apart from this, it is also visible from the next provision which is in line, is Rule 25 in which, powers are vested in the authority to relax the time limit and condone the delay. However, the very purpose and the effect of this power is pre supposing an application of mind as well as the specific order with reasonings which are completing missing in the present case. As a result of this, a case is made by the learned advocate for the petitioner, and the relief prayed for deserves to be granted.

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[9] Apart from this, an additional factor which is also visible from the record is that from the order dated 06.03.2004, the penalty which has already been effected and implemented, it can be seen that there is no personal benefit of the petitioner in any case. On the contrary, however, process has been carried out after getting necessary approval from the immediate authority, even some part of this has been approved by the Taluka Development Officer as well and there is a categorical finding in the order of penalty that merely it may be an act of administrative lapse and a categorical conclusion is that there is no financial irregularities of any nature and no personal interest is received by the present petitioner. If that be so, the true construction of Rule 25 has to be given full effect; in considered opinion of this Court. As a result of this, the order impugned is hereby quashed and set aside with no order as to costs.

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[10] However, while parting with the order, the Court found that the petitioner has by now retired on 30.06.2008, and therefore, is merely getting provisional pension. If that be so, the Court directs the respondents-authorities to calculate the payable

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C/SCA/24641/2006 JUDGMENT

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amount of retirement dues and the pension, etc., and pay the same to the petitioner within a period of three months from the date of receipt of the writ of this Court.

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[11] With these observations petition stands allowed. Rule is made absolute to the aforesaid extent.

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Sd/- (A.J.SHASTRI ,J.)

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dharmendra

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Patel Ramchandra Keshavlal v. the Dist.Development Officer

Case brief

What is this about?

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Patel Ramchandra Keshavlal v. the Dist.Development Officer

Case brief

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