B R ACHARYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this petition under Art. 226 of the Constitution the petitioner who is party-in-person has challenged the order dated 5.8.1980 passed by the appellate authority reducing the penalty in departmental proceedings initiated against the petitioner to the extent. that the petitioners two increments have been ordered to be withheld with future effect. In order to appreciate grievance of the petitioner it is necessary to note a few relevant facts. The petitioner is at present working as a probation officer under the Probation of Offenders Act 1958 under the administrative supervision of respondent No. 2. He had joined the Department of Social Welfare (subsequently known as Social Defence Department) of the respondent-State in January 1983 and thereafter he has continued to work in the said department as a probation officer. During his tenure of service he worked at different places in the State. The service history of the petitioner has a chequered career. It is not necessary to refer to the same as that would only tend to confuse the issue. Only bare relevant facts therefore are being stated at this stage. In 1975 the petitioner was transferred to Bhavnagar as a probation officer with headquarter at Bhavnagar. He had under his charge various talukas where he had to act as a probation officer and for that purpose he had to attend criminal courts situated in those talukas. Savarkundla taluka was one of them. By an order dated 14.9.1976 the head quarter of the petitioner was changed from Bhavnagar to Savarkundla and he was assigned the work pertaining to Savarkundla criminal court. The said order is at annexure B to the petition at page 20. Pursuant to the said order the petitioner was required to shift his headquarter from Bhavnagar to Savarkundla. The petitioner had a grievance about the same. Hence he made a representation to the higher authorities against the said order shifting his headquarter which in the submission of the petitioner amounted to a transfer order. It appears that nothing came out of the said representation. In the meantime the petitioner did not comply with the order of the then Director of Social Defence direction him to shift to Savarkundla where he had to work pursuant to the order dated 14.9 He continued to remain at Bhavnagar and to operate from that headquarter. He did attend the criminal court at Savarkundla but without shifting his headquarter to Savarkundla. He even did not accept shifting allowance and the expenses permissible to him for such shifting. That circumstance brought in its wake departmental proceedings against to the petitioner. The proceedings for imposing minor penalty as contemplated by rule 6(1). (2) and (3) of the Gujarat Civil Services (Discipline and Appeal) Rules. 1971 (the Rules for short) were initiated against the petitioner. It is not in dispute that proper procedure for imposing minor penalty was followed in the case of the petitioner. Ultimately the then Director of Social Defence who was the administrative head of the petitioner imposed penalty order against the petitioner on 29-4-1977. The said penalty order is at annexure F to the petition. By that order the petitioner was found to have misconducted in not complying with the transfer order directing him to shift his headquarter from Bhavnagar to Savarkundla and consequently he was imposed a minor penalty by way of withholding promotion for five years. The petitioner challenged the said penalty order by preferring an appeal before the appellate authority. The said appeal came to be decided by the State of Gujarat through Joint Secretary Social Defence Department on 5.8.1980. The finding of the disciplinary authority that the petitioner had committed a minor misconduct by not complying with the transfer order was accepted but the punishment was found to be too harsh. Consequently the penalty order passed by the disciplinary authority on 29.4.1977 was substituted by an order withholding two increments of the petitioner with future effect. The said appellate order dated 5.8.1980 is annexed at annexure H to the petition. The petitioner thereafter filed a review petition before the appellate authority to reconsider his appeal. The said review petition was kept pending by the appellate authority for quite sometime. That brought the letitioner to this court by way of Special Civil Application No. 906 of 1983 with a request to this court to issue proper directions to the respondents to hear the review application. G. T. Nanavati J. issued necessary directions to that effect to the appellate authority. Under these circumstances the appellate authority decided the review application of the petitioner by his order dated 1.8 which is at annexure P to the petition at page 74. The appellate authority found that there was no case for review of the earlier order dated 5.8 and confirmed the same. It is thereafter that the petitioner has come to this court by way of the present petition. This petition came up for admission hearing before G. T. Nanavati J. on 6.2.1984. At the time of hearing as to admission the following order was passed by G. T. Nanavati J:-

(2.) It is now time for me to notice the main contentions canvassed by the petitioner in support of the petition insofar as challenge to the legality of the order dated 5.8.1980 passed by the appellate authority is concerned.

(3.) So far as the first contention is concerned it must be noticed that the petitioners case is governed by the provisions of the Rules as the petitioner is admittedly a State Government servant to whom the aforesaid Rules apply. Part III of the rules deals with the topic of Discipline. Rule 6 is found in that part of deals with nature of penalties and lays down that:-