M P PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner has invoked extra ordinary jurisdiction of this court under Art. 226 of the Constitution of India, challenging the order of his removal from service as District Health Officer as it is illegal, ultra vires and violates Arts. 14 and 16 of the Constitution of India.

(2.) The short facts leading to the present petition as emerges from the record are as under :- The petitioner was working as District Health Officer at Mehsana in the year 1982-83. It is submitted that the District Panchayat Health Committee had proposed to purchase some medicines and instruments for Health Department vide its Resolutions Nos. 75 and 85 passed in the month of May and July 1982 respectively authorising Chairman of the District Panchyat Health Committee and the District Health Officer. Said resolutions are at Annexure O. It is pertinent to note here that petitioner was not the District Health Officer at Mehsana at the relevent time of passing the resolutions Annexure O. It is submitted that the petitioner took charge of District Health Officer at Mehsana on 9th August, 1982. However after taking charge of District Health Officer, it is stated that in pursuance to the resolutions, the petitioner prepared a note on 23/8/1982 of purchase and submitted the same to the District Development Officer for approval. The said note was approved by the District Development Officer as well as President of District Panchayat. Thereafter tenders were invited from the agencies. Tender notice is at Annexure P. It is stated that the Purchase Committee was appointed consisting of Chairman of Health Committee, District Health Officer, Additional District Health Officer and Administrative Officer of Family Planning and in presence of these members, the tenders were opened. It is submitted that accepted tenders of the agencies were submitted to the District Development Officer and the President of District Panchayat for approval. On getting approval from them, the orders were placed accordingly for purchasing medicines and necessary instruments and accordingly medicines and instrument were purchased from the approved agencies as per tenders. The bills of purchase of materials received by the District Health Commitee were also sent to the District Accounts Officer and after getting approval from District Development Officer, payments of the bills were made to the traders. It is submitted that District Health Officer has no independent funds, nor District Health Officer has any financial power in the matter. Whatever purchase made is by the Purchase Committee of the District Health Centre. It is submitted that this purchase of medicines and instruments for Mehsana District Health Centre was subsequently approved by the District Panchayat and report in this regard was also sent to respondent-Government. However it is submitted that in the year 1985-86, the respondent found some irregularities in purchase of medicines and instruments in the year 1982-83 and therefore Departmental Inquiry was initiated against the petitioner. It is revealed from the record that by this time, the petitioner was already transferred from Mehsana to Baroda as Professor and Health Officer in Family Planning, District Health Centre. Further it reveals that simmultaneously, some Preliminary Inquiry was also held regarding alleged irregularities in purchasing medicines and instruments in the year 1978-79, while petitioner was holding the charge of District Health Officer, Bharuch. A chargesheet was issued against the petitioner for the above irregularities alongwith the show cause notice Annexure B and D respectively. Chargesheet Annexure B is pertaining to alleged irregularities committed by the petitioner, while he was working as District Health Officer, Bharuch and the show cause notice Annexure D dt 9/3/1987 is pertaining to the allegation in respect of alleged irregularities committed by the petitioner, while he was working as District Health Officer at Mehsana. The petitioner submitted his reply to both- the chargesheet and to the show cause notice at Annexure C and E respectively. It is submitted that no inquiry was ordered to be initiated in the charges C and B though the charges were identical and explained in both show cause notice Annexure B and D were also identical. However regular inquiry into the charge alleged in the chargesheet (annexure D) in respect of irregularities committed when he was working as District Health Officer, Mehsana was ordered to be held and accordingly Inquiry Commissioner was appointed and the Inquiry Commissioner has submitted his report at Annexure M. In the report, the Inquiry Commissioner held charges alleged in the chargesheet against the petitioner to be proved. The said report was submitted to the Government and the Government has on relying upon the said report of the Inquiry Officer, decided to remove the petitioner from service and accordingly after getting approval from GPSC the petitioner has been served with the order of removal from service with effect from 16th January, 1988 Annexure N in the compillation of the petition. Hence this petition. No affidavit in reply is Filed by the Deptt.

(3.) Mr. Tripalhi, learned counsel for the petitioner submitted that the order of removal Annexure N is bad in law as the charges levelled against the petitioner was held to be proved on no evidence and against the principles of natural justice. Mr. Tripathi submitted that the Inquiry Commissioner has failed to consider the reply submitted by the petitioner and there is non-application of mind in deciding the charges. Lastly Mr. Tripathi submitted that punishment of removal from the service of the petitioner is disproportionate and too harsh in comparison to the charges levelled against the petitioner. It is submitted that the respondent has not filed affidavit-in-reply denying contentions of the petitioner in the petition and therefore the contention taken by the petitioner in the petition should be accepted. Mr. Tripathi has relied upon the following authorities :-