LALCHAND TILUMAL BUDHWANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant-petitioner was serving as Peon with the respondent- College since 1977. By an order dated July 14, 1986 he was placed under suspension on the ground that on that day i.e. on 14.7.1986 at 12.30 p.m. when the Registrar, Shri N.J.Shahani, asked him to go to the office of the Administrator, Gandhidham Collegiate Board for official work, he not only disobey the order, but also started speaking loudly. When the Principal rushed in the office, on hearing his shouts and when asked him to behave properly with the higher officers and to obey his orders, he once again refused to follow their orders. This being serious misconduct he was placed under suspension with immediate effect by the Principal of the College as per the order at Annexure-A to the main writ petition. In the order of suspension it is clearly mentioned that it was not the first occasion where he misbehaved. There were serious complaints against him in the past also of similar nature. In 1982, he refused to obey the orders of In-charge, Heat Hangines Laboratory and insulted him in presence of students of final year D.M.E. for which he was served with memo dated 14.9.1982. In 1984 also he refused to obey the orders issued by Shri Hari G. Tejwani, Head of Department (Elec.) to attend some urgent work at A. V.Theatre on 21.9-1984 at 11.30 a.m. for which memo dated 22.9.1984 was issued. In 1985 he threatened Shri U.D.Managwani, Senior Clerk on duty with his life and beat him for which memo dated 15.10.1985 was issued. In response to the charge sheet, he submitted his reply dated 15.7.1986 (Annexure-B). By letter dated 14.10.1986 (Annexure-C) he was asked to remain present before Inquiry Committee consisting of (1) Prof. J.D.Sabhani; (2) Prof. S.T.Mangtani and (3) Prof. B.D.Kripalani on 20-11-1986 at 10.30 a.m. failing which ex-parte inquiry will be held against him.

(2.) We are really surprised to note that though the appellant was a Class-IV servant, by letter dated 27-10-1986 (Annexure-D) he raised objection before the Principal regarding Constitution of the Committee. The said objection was overruled. Thereafter, by letter dated 20.11.1986 he requested to adjourn the inquiry till his representative is engaged in the Committee and the members of the Inquiry Committee are not changed and also requested to defend his case through one Shri Prem Lalwani, Secretary of their Union. However, his request was not granted. Thereafter, regular inquiry was held by the Committee and before the Committee the appellant-petitioner participated and the Committee came to the conclusion that the appellant- petitioner had grossly misbehaved and the charges levelled against him are established. Since all the charges were proved beyond doubt, therefore, the Committee recommended the Principal to take further action as per the rules. Considering the report of the Committee, the Principal of the College by his order dated 25.11.1986 dismissed the appellant- petitioner from service with immediate effect. This was challenged by the appellant-petitioner before this court by way of writ petition i.e. Special Civil Application 6472/86. The said petition came up for final disposal before the learned Single Judge of this court on 18.2.1998. Before the learned Single Judge it was contended that he was not supplied with the inquiry report, therefore, the impugned order of dismissal was bad. This contention was rejected by the learned Single Judge in view of the judgment of the Hon'ble Supreme Court in case of MANAGING DIRECTOR, ECIL VS. B.KARUNAKER reported in JT 1993(6) SC 1. Second contention raised before the learned Judge was that the penalty was grossly disproportionate. The learned Judge was not much impressed by that contention as according to him the charges of insubordination was so serious that called for the maximum penalty of dismissal from service. Therefore, the learned Judge dismissed that contention. Hence, this appeal.

(3.) Before us learned counsel Shri Japee appearing for the appellant- petitioner firstly submitted that before the Inquiry Committee, out of four charges, two charges were stale. They were of 1982 and 1984. He, therefore, submitted that the inquiry was not justified in those incidents for dismissing the appellant- petitioner from service. This contention of Mr.Japee has no substance. It seems that the appellant-petitioner was in habit of misbehaving with his superiors. First incident took place in September, 1982 for which he was served with memo dated 14.9.1982, which was followed by second incident of September, 1984 for which he was served with memo dated 22.9.1984. Once again he committed similar misconduct in October, 1985. The last incident happened on 14.7.1986. It seems that though he was served with three memos he never improved. The last incident was shocking, therefore, the Principal had no option but to immediately place him under suspension. It is clear from the report of the Inquiry Committee that on earlier occasion he was placed under suspension for similar type of misconduct. But on showing mercy that suspension order was recalled. Unfortunately, he had not improved. Under the circumstances, it cannot be said that the Disciplinary Authority committed any error while passing the impugned order of dismissal from service taking into consideration those two stale incidents. For those incidents of 1982 and 1984 the appellant-petitioner was given full opportunity to meet with the same in the inquiry. Therefore, it will not be open to him to contend for the first time before this court when this contention was not raised by the appellant-petitioner before the learned Single Judge in his writ petition.