STATE OF GUJARAT Vs. D M KHRISTI

JUDGEMENT

(1.) INVOKING Clause 15 of the Letters Patent, Commissioner of Transport has appealed against order dated 28.03.2000 of learned single Judge of this Court in SCA No.1503 of 2000. That petition was filed by the appellant to challenge order dated 29.11.1999 of Gujarat Civil Services Tribunal in Appeal No.467 of 1998, whereby order dated 19.09.1998 to remove the respondent from service as senior clerk in the office of Regional Transport Officer was set aside. The respondent was charged with serious acts of misconduct in obtaining and producing a fraudulent driving licence of his own and in demanding bribe and accepting illegal gratification. Taking a serious view of lack of integrity and of behaviour not befitting a government servant, on the basis of facts established at a departmental inquiry, the Transport Commissioner had issued order of immediate removal of the respondent from service. While making that order, the Commissioner had considered the defences taken by the respondent at the inquiry held under the Gujarat (Discipline and Appeal) Rules, 1971 and the findings recorded in the Inquiry Report dated 27.03.1998. Having considered the evidence led during inquiry in light of the defence taken by the respondent and his written statement, the Commissioner had come to the conclusion that both the charges levelled against the respondent were proved and the person guilty of such misconduct could not be continued in service.

(2.) WHEN the aforesaid order of Tribunal was challenged before this Court in SCA No.1503 of 2000, learned single Judge quoted a few material paragraphs from the impugned order of the Tribunal and concluded that all the points raised in the petition involved appreciation of facts, which exercise was already undertaken by the Tribunal; and hence the Court found no reason to interfere with the order of Tribunal. Being aggrieved by that order, the appellants have preferred this appeal, mainly on the grounds that the judgment of the Tribunal was perverse and re-appreciation of evidence by the Tribunal was without jurisdiction. It was submitted by the appellants that there was cogent evidence and material on record supporting the findings of Inquiry Officer and justifying the order removing the respondent from service. There was no procedural irregularity and no prejudice was caused to the respondent by the alleged non-supply of documents. Under such circumstances, learned single Judge was required to apply his mind and quash the order of Tribunal impugned before him, according to the submission.

(3.) THE above view is buttressed by decision dated 16.10.2006 of the Apex Court in Collector, Rajkot and others v. Bavabhai Karshanbhai Patel and another, in Special Leave to Appeal (Civil) No.3449/2006, wherein an appeal was preferred by Collector of Rajkot on the express direction given by the Ministry of Revenue; and the Supreme Court expressed the view that, when an illegality was committed, it was open to the Collector to challenge the same to protect the interest of the State. THErefore, both the learned single Judge and the Division Bench of this Court were not correct in saying that the Collector cannot challenge the order passed by the Secretary to the State Government. After the judgment being reserved (CAV), learned counsel for the respondent has submitted written arguments to elaborate the issue of maintainability of the appeal as also locus standi of the appellant in the main petition. However, in view of the fact that the original petition of the appellant did invoke both Articles 226 and 227 of the Constitution to pray for a writ of certiorari and the learned single Judge has not exclusively exercised the powers under Article 227, the appeal is entertained on merit. THE judgment of another learned single Judge in SCA No.9957 of 2000, dated 14.11.2008, relied upon by the respondent cannot have any effect in view of the categorical pronouncement of law on the subject by the Apex Court as seen hereinabove.