HRIYER Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant has preferred this appeal against the judgment and order dated 12.9.2013 passed by the learned single Judge whereby the petition has been dismissed. We have heard Mr. Vaibhav A. Vyas learned advocate for the appellant, Mr. Premal Joshi learned advocate for respondent No. 2 and Mr. N.J. Shah learned AGP for respondent No. 1.

(2.) The facts of the present case are that the appellant had joined the service as Government Labour Officer on 2.3.1982. He was issued a show cause notice dated 18.7.2005 whereby the appellant was called upon to show-cause as to why the disciplinary proceedings under the Gujarat Civil Service (Discipline and Appeal) Rules 1971 be not initiated for the alleged misconduct. That the basis of issuance of the said notice was a complaint given by one Dr. Madhvi J. Sheth of Govind Clinic against the appellant, wherein, she had alleged that the appellant had filed two criminal cases against her under the provisions of Minimum Wages Act, though the said clinic had kept necessary record and the appellant was intentionally harassing the complainant. The appellant submitted his reply to the show cause notice on 2.8.2005. Thereafter, the appellant was served with a charge dated 27.9.2006 for the misconduct alleged to have been committed by the appellant. The charge against the appellant was that of filing false cases against the complainant and that the appellant was discourteous towards the complainant. The appellant denied the charge and responded to the charge vide his defence statement dated 14.11.2006. Thereafter, the appellant was called for personal hearing on 18.1.2007. On 12.3.2007 the appellant submitted further reply in view of the fact that the original complainant Dr. Madhavi J., Sheth had pleaded guilty in the Criminal Cases registered against her by the present appellant and was therefore held guilty of commission of offences punishable under Ss. 22, 26(5), 26(1), 26(2) of the Minimum Wages Act. The appellant also produced the copy of the judgment and order of conviction dated 8.3.2007 passed by the learned Judicial Magistrate First Class, Court No. 4, Vadodara. That after considering the aforesaid judgment and order of conviction passed against the original complainant Dr. Madhavi J. Sheth, the charge No. 1 levelled against the appellant was held to be not proved, however, having regard to the statement of Dr. Madhavi J. Sheth, the appellant was held guilty of charge No. 2 of being discourteous to her at the time of taking inspection, and accordingly, the respondent authority passed the impugned punishment order, whereby, one increment of the appellant has been ordered to be stopped without future effect

(3.) Learned advocate Mr. Vyas for the appellant has submitted that the learned single Judge has failed to appreciate that so far as the merits of the charge against the appellant is concerned, it is the case of the appellant that the same is baseless, more particularly, in view of the fact that the basis of the charge against the appellant does not survive in view of the fact that the original complainant Dr. Madhavi J. Sheth has been found guilty by the Court of competent jurisdiction. It is further submitted that the charge against the appellant is also not sustainable in view of the fact that the respondent authority while arriving at the conclusion of holding the appellant guilty, has not even bothered to examine the original complainant. Mr. Vyas further submitted that the learned single Judge has failed to appreciate the fact that even the say of the complainant as reflected from the complaint itself would show that the appellant had not even met her and therefore the entire story of being discourteous to the complainant is a got up one. It is further submitted that in these circumstances, the impugned judgment and order of punishment, over and above being violative of principles of natural justice, is absolutely illegal, arbitrary, mala fide and pervert. Mr. Vyas further submitted that the learned single Judge has failed to appreciate that there has been perversity on the part of the Disciplinary Authority since the Disciplinary Authority has failed to take into consideration relevant material and has taken into consideration irrelevant material or such material which legally could not have been taken into consideration. It is further submitted that by relying upon the complaint of the complainant which was recorded behind the back of the appellant, the learned single Judge has taken into consideration irrelevant material, which legally could not have been taken into consideration in view of the settled legal position that when a person is not examined, his statement could not be relied upon. It is submitted that while dismissing the petition, the learned single Judge has quoted a paragraph from the affidavit-in-reply filed in Special Civil Application No. 8720 of 2008 though appellant was not a party to the said petition and therefore the learned single Judge ought not to have taken into consideration something which is not even brought to the notice of the appellant Further, the said fact was not at all relevant for the purpose of deciding the petition filed by the appellant Mr. Vyas further submitted that there is no evidence against the appellant to hold the charges levelled against the appellant as proved, however, only on the basis of the assumption and presumptions the punishment order is imposed upon the appellant to prejudice the case of the appellant for promotion on the post of Assistant Commissioner of Labour, Class-I, which is clearly evident from the file notings obtained by the appellant under the Right to Information Act, where from, it is specifically revealed that the said punishment is imposed on the basis of assumption and presumption, and therefore, the impugned judgment and order passed by the learned single Judge requires to be quashed and set aside.