SHANITBHAI AMBALAL PATEL Vs. DHOLKA NAGARPALIKA

JUDGEMENT

(1.) Heard learned advocate Mr. M.B.Gandhi for petitioner and learned advocate Mr.Paresh Upadhyay appearing on behalf of respondent.

(2.) The brief facts of the present petition are as under.

(3.) It is necessary to note at this stage that chargesheet though served to the petitioner was replied by him without any inquiry in respect of chargesheet. Till the date of receiving the reply from the petitioner, the Administrator of the respondent Nagarpalika has come to the conclusion that on the basis of documentary evidence the reply submitted by the petitioner is not accepted. As to on what reason or ground the reply has not been accepted is not mentioned in the said letter which is at page 85. What would be the effect of not accepting the reply prior to the stage of inquiry is a different question which is required to be considered. It may suggest the predetermined mind of the Administrator of the respondent Nagarpalika because while taking the decision not to accept the reply, no inquiry was held against the petitioner. The request to engage an Advocate has been rejected. As per page 88, an order has been passed on 1.7.1999 for the payment of suspension allowance to the petitioner. The important document is at page 90, which is an inquiry report of Mamlatdar dated 8.10.1999, who was inquiry officer. The inquiry officer has given finding in respect to each charge. It is necessary to note at this stage that no witnesses have been examined by the presenting officer on behalf of the respondent Nagarpalika before the inquiry office to prove the charge against the petitioner. The whole report of inquiry is based on documents which have been scrutinised by the inquiry officer on the basis of documents and replies which were submitted by the petitioner. Except that, there is no other discussion about any evidence wherein the relevant documents have been proved by the presenting officer against the petitioner by leading oral evidence. The method which has been adopted by the inquiry officer is that each allegation has been taken into account and against that, the inquiry officer has considered the written statement of the petitioner and then he concluded that the reply should not be accepted and as a result thereof, the charge is proved against the petitioner. The Mamlatdar, inquiry officer has given chance to the petitioner to the effect that if he wants to say orally over and above the written statement which was filed against the chargesheet and for that hearing was fixed on 28.7.1999. Then the petitioner personally remained present before the Mamlatdar inquiry officer and he reiterated the same thing that whatever the reply given by him earlier on 17.6.1999 is enough and he do not want to add anything and he also did not want to make further explanation. This was also taken into account by the inquiry officer and ultimately he come to the conclusion that charges Nos. 1 to 6, 8 and 9 are proved against the petitioner and charge No.7 is partly proved and as regards charge No.10, it was his conclusion that the same is ambiguous and that is how it remained without being proved against the petitioner. But, after perusal of the inquiry report, it appears that no witness has been examined by the respondent Nagarpalika for proving the documents which have been relied upon by the Nagarpalika against the petitioner. Meaning thereby, the documents which were relied upon by the Nagarpalika were considered to be correct, legal and valid though no witness in support thereof by the Nagarpalika in view of the reply given by the petitioner. The said method is apparently not in accordance with the principles of natural justice. It is necessary to note one important aspect again that very reply in prior point of time to the inquiry report, has not been accepted by the Administrator of respondent Nagarpalika. I fail to understand the method and manner of departmental inquiry which has been adopted by the respondent Nagarpalika that before starting the departmental inquiry against the petitioner after the chargesheet the reply which was submitted by the petitioner on 17.6.1999 has not been accepted, meaning thereby, it was rejected by the Administrator and thereafter the departmental inquiry was initiated against the petitioner. Then what is the purpose to again testing the reply in light of the documents which are placed before the inquiry officer. On the basis of inquiry report a notice dated 11.10.1999 was served to the petitioner to show cause as to why the punishment should not be imposed, for which petitioner is required to give explanation. That explanation was given by the petitioner on 15.10.1999 which is at page 108 to 127. Meaning thereby, more than 19 pages the reply given by the petitioner was there. Thereafter on 25.10.1999 the dismissal order has been passed against the petitioner. The Administrator of respondent Nagarpalika has considered while passing the order of dismissal the reply which was submitted by the petitioner on 15.10.1999. The important aspect is the observations which have been made by the Administrator that petitioner is found to be responsible for mismanagement and negligent in working which ultimately ruined the respondent Nagarpalika and therefore the reply dated 15.10.1999 is not satisfactory and rational and therefore, it is decided to punish the petitioner by imposing harsh punishment. Therefore, the decision was taken to impose an extreme and harsh penalty like an economic death because his reply was not found satisfactory and rational by the Administrator of the respondent Nagarpalika. While passing the order of punishment, the Administrator has also not considered long span of service of the petitioner of more than 15 years as also the past record of the petitioner.