LAWS(GJH)-2006-2-56

J M DAVE Vs. COMMISSIONER OF FISHERIES

Decided On February 06, 2006
J.M.DAVE Appellant
V/S
COMMISSIONER OF FISHERIES Respondents

JUDGEMENT

(1.) Although by its title, the petition is invoking Articles 14, 226 and 227 of the Constitution, it is, in fact and in effect, challenging the order dated 6.7.2005 of the Gujarat Civil Services Tribunal in Appeal No. 319 of 2001, whereby the order dated 25.5.2001 of punishment made against the petitioner was confirmed and the appeal of the petitioner was rejected. That appeal was the second round of litigation before the Tribunal after the judgment and order dated 20.2.2001 whereby the appeal against the original order of punishment was partly allowed and the matter was remanded for reconsideration.

(2.) There is no dispute about the fact that, after the petitioner being granted an opportunity of being heard, the order dated 25.5.2001 was made. Thus, in short, the original order dated 1.12.1998 imposing punishment of stoppage of one increment with future effect is the order against which the petitioner has been taking up one after the other proceedings. The objections now sought to be agitated against the second order dated 25.5.2001 which was confirmed by the Tribunal, are that even after a direction to give to the petitioner an opportunity of being heard and the petitioner having actually been heard in April, 2001 by an officer, namely Mr. P.K. Parmar, the Commissioner of Fisheries, the order came to be signed and issued by another Commissioner, namely Mr. N.A. Vora. It was, on that basis, argued that the officer who heard the petitioner had not passed the order and that violated the principles of natural justice. Another argument was that, even as the enquiry officer had exonerated the petitioner and the disciplinary authority had taken a different view, the petitioner was not granted an opportunity of being heard before the disciplinary authority decided to differ for the reasons which were for the first time disclosed in the order of punishment.

(3.) The charges levelled on 1.3.1995 against the petitioner, in substance, were that, after his transfer by the order dated 6.6.1992 and after being relieved on 23.6.1992, he had gone on leave on the ground of sickness and never reported for duty. Therefore, he was accused of being absent without leave which amounted to lack of sincerity and integrity in the discharge of his duties. The enquiry officer concluded in his report that the petitioner was on leave even before the date of his transfer and, therefore, it could not be said that he had gone on sick leave because of the transfer. It was also recorded by the enquiry officer that since the petitioner had applied for leave on the basis of the medical certificates and no order granting or refusing leave was issued, his absence from duty could not be held to be authorized or unauthorized.