H K DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for a writ of mandamus quashing and setting aside the impugned order dated 19.5.1986 annexure-V page 114 of the petition passed by the respondent No. 2 and directing the respondents to pay to the petitioner his full salary and allowance for the period of suspension from 4.3.78 to 15.2.79 which was without any basis, treating the said period as duty for all purposes and directing that the leave as may be admissible to the petitioner should be granted to him for the period of his absence from 28.10.1977 to 3.3.1978. The facts giving rise to the present petition, in short, are as under:

(2.) The petitioner was working as Office Superintendent under the Director of Agriculture, Ahmedabnad. A separate Directorate known as Soil and Water Management Directorate was established with effect from 12.10.76 by the Government. All the existing posts of Cl.I, II, III and IV were transferred under the control of the new Directorate. In addition, all the staff members working in "E" Branch of the Directorate of Agriculture,AHmedabad were also placed under the control of the said new Directorate. It was the contention of the petitioner that he didnot belong to the above category of staff and was not liable to be transferred to the Directorate of Soil and Water Management and yet, ye came to be transferred in May, 1977 to the said new establishment at Palanpur which action was challenged by the petitioner and in the said litigation, interim relief against the transfer order was passed by this Court. Ultimately, said order of transfer was withdrawn by the Government and the matter was directed to be decided by the Secretary, Agriculture Forest and Coop. Deptt. and hence the petition being special civil application NO. 1161 of 1977 was withdrawn by the petitioner.

(3.) It is the case of the petitioner that in pursuance to the above directions, the petitioner was given hearing by the Secretary on 14.10.1977 but the decision thereon was not conveyed to the petitioner. It is the case of the petitioner that in June, 1977, the Director of Soil and Water Management had been given the additional charge of the Director of Agriculture, said Director who was holding the additional charge of the Directorate of Agriculture passed the order of transfer of the petitioner to the office of Divisional Soil COnservation Officer, Palanpur without conveying to the petitioner the decision of the Secretary of the Agriculture Department. Against the said transfer, the petitioner had made representation but has not joined the transferred station. Thereafter, the petitioner was placed under suspension with effect from 4.3.1978 in contemplation of proposed departmental inquiry inter alia for his not obeying the order of transfer and was served with charge sheet on 18.3.1978 from which the petitioner came to know about the decision of the Secretary in his case which was never communicated to him. It is the further case of the petitioner that by Government Resolution dated 12.4.1978, separate Directorate of Soil and Water Management came to be abolished and it was merged with the Directorate of Agriculture i.e. the Department in which the petitioner was working. The petitioner, therefore, informed the authorities that he was willing to join at Palanpur since the basic objection raised by the petitioner against his transfer was not existing any longer while pointing out that he was not paid any subsistence allowance during the period of his suspension. The petitioner was accordingly allowed to resume the duties and was posted at the original transferred place by order dated 7.2.1979 subject to the final decision which may be taken against him in the departmental inquiry which was pending against him and also subject to the condition that the order of regularization of the period of his suspension will be passed after the result of the said departmental inquiry. The petitioner accordingly resumed the duties w.e.f.16.2.1979. Upon resumption, the petitioner applied for commuted leave on medical ground from 28.10.77 to 3.3.78 i.e. till the date of suspension which was rejected on the ground that he had not applied for leave at proper time and thereafter, the petitioner was served with second show cause notice in the departmental inquiry to show cause as to why the penalties mentioned in clause (1) to (3) i.e. minor penalty of rule 6 should not be imposed on him and why the period of his absence from 28.10.1977 to 3.3.1978 and the period from 4.3.78 to 15.2.1979 should not be treated as a period without pay which was replied by the petitioner on 14.5.1979 and thereafter, order of penalty was passed on 28.6.1979 whereby the period of his absence for the aforesaid period was treated as without pay and his absence during the period of suspension also was treated without pay and penalty of stoppage of one annual increments was passed with future effect. The petitioner retired from service on 1.9.1979. The petitioner approached the Civil Services Tribunal by filing appeal no. 204 of 1980 challenging the order of penalty which was allowed and the order of penalty dated 28.6.1979 was set aside by the tribunal on 25.9.1981. Thereafter, departmental inquiry was revived against the petitioner vide order dated 20.10.1983 passed by the Director of Agriculture, Gujarat State, Ahmedabad and the enquiry was entrusted to the Special Inquiry Officer after 11 moths, on 4.9.1984. It is the case of the petitioner that the said inquiry was withdrawn on 21.12.1985. It is the further case of the petitioner that though the inquiry was dropped, the petitioner was again served with the show cause notice to show cause as to why the period of his absence for the aforesaid period should not be treated as leave without pay and to show cause as to why the period of his suspension should not be treated as leave admissible which was replied by the petitioner on 31.1.1986. Thus, in this petition, in sum and substance, it is the grievance of the petitioner that since the departmental inquiry revived against him pursuant to the order dated 20.10.1983 was dropped on 20.12.1985, subsequent show cause notice dated 21.12.1985 was misconceived and no punishment could be imposed upon him. The petitioner has, therefore, filed the present petition challenging the action of the respondents and has prayed for the reliefs as stated above. This petition was admitted by this Court on 15.7.1978.