Allowed

Dharampal Subhashchandra Jakhad v. State of Gujarat

Gujarat HC25 Feb 2019SCA/6087/2017

Case brief

AI extract

What is this about?

The High Court allowed a Special Civil Application seeking to quash dismissal orders from service. Applying the precedent set in Mahendrasinh Gayaprasad Mali, the court ordered the petitioner to be treated as voluntarily retired instead of dismissed. The court granted entitlement to full pension and benefits from the date of the order but denied arrears for the interim period.

What did the court decide?

The petitioner is to be treated as voluntarily retired in lieu of dismissal, entitled to full pension from the date of this order, but not entitled to arrears for the intervening period.

Dharampal Subhashchandra Jakhad Vs State of… — Pension and Retirement Benefits | Gujarat HC (2019)

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C/SCA/6087/2017 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 6087 of 2017

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DHARAMPAL SUBHASHCHANDRA JAKHAD

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Versus

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STATE OF GUJARAT & 2 other(s)

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Appearance:

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MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1 MR. K.M.ANTANI, ASSISTANT GOVERNMENT PLEADER(1) for the Respondent(s) No. 1

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NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3

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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA

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Date : 25/02/2019

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ORAL ORDER

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In the facts and circumstances of the case and having regard to the consent and request of the parties appearing through their respective learned advocates, the petition was taken up for final consideration today.

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1.1 Rule returnable forthwith. Learned Assistant Government Pleader Mr. K. M. Antani waives service of Rule on behalf of respondents.

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1.2 Heard learned advocate Mr. S. B. Gohil for the petitioner and learned Assistant Government Pleader for the respondents.

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The petitioner has prayed to set aside the order of dismissal dated 3.3.2012. He has further prayed to quash the order passed by

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Page 1 of 6

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C/SCA/6087/2017 ORDER

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the Appellate Authority dated 19.10.2012 as well as the order of the Revisional Authority dated 18.4.2013. It is next prayed to reinstate the petitioner in service with all consequential benefits including backwages with interest.

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2.1 In the alternative, the petitioner seeks the same directions as per order dated 25.11.2016 passed in Special Civil Application No. 12372 of 2012.

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The facts in nutshell are that the petitioner was appointed on 1.2.1983 as Police Constable in State Reserved Police Force, Group No.12, Gandhinagar, and he served as such till he was dismissed from service by order dated 3.3.2012 passed by the respondent No.3. A charge sheet was served upon the petitioner by the respondent no.3 for holding a departmental inquiry into the charge inter alia that at the time of appointment, he had produced false leaving certificate. An inquiry officer was appointed to hold the departmental inquiry, who as per his report found the charge proved against the petitioner. A show cause notice dated 17.3.2011 was issued to the petitioner calling upon him for imposing a penalty of dismissal. By order dated 3.3.2012, the petitioner came to be dismissed from service. Against this order of dismissal, the petitioner filed an appeal before the Deputy Inspector General of Police, Armed units, Gandhinagar. By order dated 19.10.2012, the appeal of the petitioner was rejected. Thereafter, the petitioner filed Revision Application before the Director General and I.G.P.. By order dated 18.4.2013, the revision application has been rejected. Hence, this petition.

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Page 2 of 6

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C/SCA/6087/2017 ORDER

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learned advocates appearing for the parties are ad-idem that the present petition is one left out from the group of petitions decided in Mahendrasinh Gayaprasad Mali vs. State of Gujarat being Special Civil Application No. 2224 of 201 2 and allied petitions, which included the aforementioned Special Civil Application 12372 of 2012 decided as per judgment dated 13.7.2018. The facts were similar and the issue involved was identical and the petitioners were subjected to inquiry for penal charges resulting into the impugned order of dismissal confirmed upto the stage of revision. It was therefore requested to the court that the present petition may be disposed of in the same lines as per the directions in Mahendrasinh Gayaprasad Mali (supra).

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In Mahendrasinh Gayaprasad Mali (supra), the court after considering the controversy, observed and held as under,

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“The complaint on the basis of which inquiry has proceeded is anonymous. In pursuance to the advertisement for filing up approximately 1600 posts of constables, the petitioners have approached the respondents authority. They submitted applications along with the necessary documents including School Leaving Certificates as well as birth certificates. At the time of selection, the original certificates of qualification as well as date of birth were taken by the respondents. Out of these 1600 constables, the issue seems to have been raised in Group XII. It is not in dispute that officials of the respondents who were required to maintain record of the petitioners have come out with a plea that, they have lost the certificates. These certificates were produced by the petitioners in the year 1983 and were part of service record. Surprisingly, all these petitioners are residents of other States. No such

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Page 3 of 6

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C/SCA/6087/2017 ORDER

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suspicion has been raised regarding appointments of remaining 14001500 constables who are stated to be from the State of Gujarat. On one hand, these certificates are claimed to have been lost by the Employer and coincidently, at that very moment, an anonymous application is received by the employer that let these certificates be again asked from the concerned constables. The authority seems to have not taken into consideration the fact that these constables have come from other States and had left their homes 20/30 years ago. Most of these constables seem to be from the States of U.P. and Bihar etc. It is known fact that schools and village panchayats of these States are not well equipped to maintain the record in a proper way. This is particularly so when places where such records are kept gets generally washed away during floods and rains. The respondents have asked the petitioners to produce record which might be more than 40 years old. If old service record of the petitioners could not be maintained by State of Gujarat for 20/30 years, how do one expect undeveloped States like U.P. and Bihar could maintain such records.”

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(para-16)

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“The inquiry officer was required to conduct inquiry at the Head Quarter of the respondents, however, he seems to have conducted ex-parte inquiry at the places where schools of these constables were situated. The petitioners have not been afforded sufficient opportunity to crossexamine the witnesses who have been examined by the respondents. In some of the cases, even the record is found correct, however, services of these petitioners are terminated.”

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(para-17)

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“The appellate authority seems to have adopted different yard-sticks while dealing with the different people for the same allegations. As pointed out by the learned senior counsel, one constable namely Sardarsing Sohansing Ahir, who was recruited with the petitioners and have put in 19 years of service. The appellate authority quashed and set

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Page 4 of 6

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C/SCA/6087/2017 ORDER

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aside the order of dismissal for the reasons that he has put in 19 years of service. The case of the petitioners is even more stronger because at the time of dismissal, these petitioners have put in 27-28 years of service.”

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(para-18)

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“Original certificates produced by the petitioners are stated to have been lost by the respondents. The petitioners have been asked to produce duplicate certificates or certified copies of the original certificates which have been lost. This Court is of the considered opinion that the petitioners cannot be asked to create evidence against themselves. Action of the respondents is also against the Bombay Police Manual. The respondents were required to follow the Bombay Police Manual which is still a good law even after publication of Gujarat Police Manual which does not contain any provision about the disciplinary action against S.R.P. Personnels. Besides, Rule 47(4) of the Bombay State Reserve Police Force Rules, 1959, makes the Bombay Police Manual applicable to the State Reserve Police Force.”

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(para-19)

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“During the course of arguments, learned counsel for the petitioners has agreed in principle that, in case, the main prayer of the petitioners for reinstatement cannot be granted, then substitute the order of dismissal with voluntary retirement.”

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(para-20)

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“Admittedly, all the petitioners have spent best part of their life in service of the respondents. They have worked for about 30 years when they have been dismissed from service. By now, most of them might have reached to the age of superannuation and might have found alternative job though such jobs are difficult to get at fag end of the life. However, keeping in view the circumstances of these cases, the order of dismissal can be substituted with the order of voluntary retirement.”

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(para-21)

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Page 5 of 6

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C/SCA/6087/2017 ORDER

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5.1 It was finally directed thus,

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“As a result of foregoing discussions, these petitions are partly allowed. Petitioners are ordered to be treated as voluntary retired in place of dismissal. The petitioners will be treated to have retired from service. They will be entitled to pension and other pensionary benefits from that date, but they will not be paid any arrears for the aforementioned period i.e. from the date of retirement till the decision by this Court. However, they will be entitled to full pension after this date i.e. decision of this Court. Rule is made absolute to the aforesaid extent in all these petitions.” (para-22)

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5.2 Applying the reasons and observations extracted above, the present petition deserves to be disposed of in the same lines.

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As a result, the petitioner is ordered to be treated as voluntarily retired in place of dismissal. The petitioner will be treated to have retired from service accordingly and will be entitled to pension and other pensionary benefits from such date but he will not be entitled for any arrears for the period from the date of retirement till the date of present petition is decided. However, it is clarified that the petitioner will be entitled to full pension after the date of present order.

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The petition stands allowed accordingly.

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Rule is made absolute in the aforesaid terms.

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(N.V.ANJARIA, J)

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C.M. JOSHI

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Dharampal Subhashchandra Jakhad v. State of Gujarat

Case brief

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Dharampal Subhashchandra Jakhad v. State of Gujarat

Case brief

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