HARISH M MANKODI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition has been filed for declaration that the impugned order dated 19-7-1993 compulsory retiring the petitioner from service is illegal, unjust and arbitrary and for a direction to the respondent to treat the petitioner in continuous service of the respondent for all purposes as if the impugned order was not passed against the petitioner.

(2.) The petitioner was selected through the Gujarat Public Service Commission (GPSC) in the year 1963 as an Assistant Section Officer and thereafter he was promoted as Section Officer, Class-II post and he worked on the said post in the Irrigation Department known as Narmada Water Resources Department, till 15-10-1955. Thereafter, vide transfer order transferred and shifted to the Health and Family Welfare Department as Assistant Section Officer with effect from 16-10-1986. Later on, he was promoted as Section Officer and continued to work in that department. It is also stated that the petitioner has rendered continuous 31 years government service and had a clean and unblemished record. The petitioner received memorandum dated 8-4-1986 calling upon him to explain as to why he continued to retain six files from 15-10-1985 when he left the charge from the Irrigation Department to another department till 22-1-1986 as he was serving in the Health and Family Welfare Department. The petitioner requested for inspection of all the original files as well as the said six files before filing his reply. But no such inspection was given and the department insisted for the explanation from the petitioner and therefore by the letter dated 8-8-1986 the petitioner submitted his explanation stating that he had not retained any file at his residence. The petitioner has also denied that those six files were collected from his residence on 22-1-1986. The charge sheet was issued by the Irrigation Department and served on the petitioner in the Health and Family Welfare Department. The petitioner submitted his reply to the charge sheet on 17-2-1987. It is also stated that the statement of Mr. P.J. Shukla, Assistant Section Officer, was recorded on 28-8-1986 i.e. after the preliminary inquiry was made and the explanation was sought from the petitioner by the order dated 8-4-1986 alleging that the said files were collected from the residence of the petitioner. One Shri P.M. Acharya was working as Deputy Secretary in the Irrigation Department who decided to hold an inquiry against the petitioner in the capacity of the Deputy Secretary and said Mr. Acharya was entrusted with as an Inquiry Officer contemplated against the petitioner. During the inquiry, the statement of Shri P.J. Shukla, Assistant Section Officer, was recorded on 12-5-1990 wherein he has stated that he had collected six files from the residence of the petitioner on 22-1-1986. One Shri R.C. Vadodiya, Section Officer was also examined as witness on 29-5-1990 who has stated that Mr. Shukla, informed him that he had collected six files from the residence of the petitioner and that he was not personally present and/or had not gone to the residence of the petitioner. Mr. Acharya, Inquiry Officer submitted his report on 15-9-1990 holding that the charges levelled against the petitioner were proved. It is also stated therein that there was no allegation about reason or intention of the petitioner in retaining six files as he was not required to decide any issue and therefore he came to the conclusion that the charge of negligence or dereliction of duty was proved against the petitioner. Thereafter, on 19-7-1990 the resolution was passed by the State Government imposing punishment of compulsory retirement.

(3.) The contention of the learned counsel for the petitioner is that the order of compulsory retirement from service is illegal, arbitrary and contrary to law as the same has been passed on extraneous and irrelevant consideration. The charges levelled against the petitioner have not been proved at all and no reasonable person could have arrived at a conclusion that there was evidence connecting the petitioner in respect of the charges levelled against him. There is no evidence except the bare statement of Shri P.J. Shukla to show that the files were taken by the petitioner at his residence. There is also no evidence to connect the petitioner with the charge that the petitioner retained the files at his residence. It is also stated that there is no evidence about any financial loss caused to the Government and there is no justification to assume for coming to the conclusion that the Government has suffered financial loss because of absence of six files for the period of three months and one week particularly when the dispute against M/s.. Vadodara Transport Company about the breach of tender contract was pending since 1980. The disciplinary authority could not have concluded that the Government could not recover a large amount of Rs.7,44,377.00 from the Carting Contractor because of the files having remained with the petitioner for a period of three months. The matter as to whether any loss was caused to the Government or not in the year 1980 is in respect of the suit which is pending in the court of law. As such, no question arises that due to retention of the file by the petitioner at his residence for about three months in the year 1986 huge financial loss has been caused to the Government. It was wholly improper and unjust on the part of the respondent to hold that there was serious misconduct on the part of the petitioner and major penalty was required to be imposed upon the petitioner. It is also submitted that the petitioner was not supplied necessary documents though demanded by him right from beginning. The petitioner made an applications on 7-5-1986, 8-8-1986 and 7-2-1986 and later on after the inquiry was over on 15-9-1990 and 21-11-1990 and the petitioner was not permitted to inspect the files which were purported to have been taken from the residence of the petitioner. The petitioner requested for inspection of those files. But he was not permitted to do so. The department during the pendency of the departmental proceedings the petitioner was not supplied copies of the files which are said to have been taken by Mr. Shukla from the petitioner's residence. As such, nonsupply of the relevant material documents vitiate the whole departmental proceedings. No corroborative or supporting evidence was produced or filed by the department concerned to show that Shri Shukla had visited residence of the petitioner and had collected six files from his residence and his statement is unreliable and he could not have gone for the second time without any order from the department concerned and could not have collected the papers on his own accord without preparing any panchanama. There is no other evidence to show that Shri Shukla had actually gone and collected the files from the residence of the petitioner. The impugned order is based on the surmises and conjectures drawn by the respondents totally irrelevant consideration. The order of penalty was passed without affording any reasonable opportunity to the petitioner and in violation of principles of natural justice. The decision of the Government with regard to penalty of compulsory retirement of the petitioner from service is patently disproportionate to the charge levelled against the petitioner and the authority was required to consider gravity of the charge, nature of the consequences and whether the fault was such as has resulted in serious detriment to the public interest.