M D DODIYA Vs. DISTRICT DEVELOPMENT

JUDGEMENT

(1.) Invoking Article 226 of the Constitution, the petitioner, a retired Head Clerk-cum-Accountant under the District Panchayat, Surendranagar, has prayed to set aside the charge-sheet dated 4/9.12.2003 with a direction to Fix his final pension and other retiral benefits ordering payment of the same with interest.

(2.) The undisputed facts are that the petitioner was allowed to retire on 31.8.2003 upon reaching the age of superannuation with the clear stipulation in the order dated 30.8.2003 itself that, by order dated 29.8.2003, a show cause notice was issued as to why disciplinary action for major punishment should not be imposed and it was, prima facie, found that the irregularities alleged against him could result in major punishment. It was, therefore, clarified in the order that it was necessary to continue further proceedings pursuant to the said notice dated 29.8.2003 and the petitioner was allowed to retire subject to further proceedings in accordance with the provisions of Rule 189 of the Bombay Civil Services Rules, 1959 ("the BCSR" for short) and Rule 24 of the Gujarat Civil Services (Pension) Rules, 2002 ("the GCSR" for short). Subsequently, the petitioner was served with the charge-sheet dated 4/9.12.2003 alongwith details thereof and list of evidence, and the departmental enquiry was commenced. However, by filing the present petition, the petitioner insisted upon payment of provisional pension and contended that the enquiry could not have been initiated without prior sanction of the Governor. On that basis, an interim order dated 2.11.2004 was passed stating that: "At the request of the learned counsel for the respondent, S.O. to 7.12.2004. In the meantime, the departmental proceedings initiated against the petitioner vide charge- sheet dated 4/9.12.2003 shall remain stayed.....". It appears that that interim order has remained effective without being renewed or extended by any subsequent order and then the learned counsel have argued the matter for final disposal.

(3.) The short question which arises for consideration is, whether, despite the so- called show cause notice dated 29.8.2003 and clear indication of continuation of the disciplinary proceeding under Rule 189 of the BCSR in the order retiring the petitioner, sanction of the Governor was required for proceeding with the departmental enquiry. The answer to that issue would depend upon the point of time when the departmental proceeding can be said to have been instituted. The relevant provisions relied upon by the learned counsel may be reproduced hereunder for easy reference:-