SCA/11578/1994 of MB MAKWANA Vs STATE OF GUJARAT on 22 December 1995

1. Whether Reporters of Local Papers may be allowed to see thejudgements?

2. To be referred to the Reporter or not?

3. Whether Their Lordships wish to see the fair copy of thejudgement?

4. Whether this case involves a substantial question of law as tothe interpretation of the Constitution of India, 1950 of any Ordermade thereunder?

5. Whether it is to be circulated to the Civil Judge?

MB MAKWANA vs STATE OF GUJARAT

Appearence:

---------------------------------------- MR PB MAJMUDAR for Petitioner Mr.D.A.Bambhania for the respondents

---------------------------------------- Coram : MR.JUSTICE S.K.KESHOTE

ORAL JUDGEMENT:

The petitioner who is holding the post of Sales-taxOfficer (III) Unit-IV files this petition before this courtchallenging the order Annexure-F dated 17.8.1994 under which thedisciplinary authority inflicted the penalty of stoppage of twoincrements with future effect. Brief facts leading to the presentpetition are as under:

2. The petitioner was served with a memo dated 10.7.91 forthe misconduct alleged therein. The departmental inquiry wasconducted by the inquiry officer but the alleged misconduct wasnot found proved by the Inquiry Officer. The disciplinary authority did not agree with the finding recorded by the InquiryOfficer and a show cause notice was givden to the petitioner inthe matter by the said authority. The petitioner gave a detailedreply to the show cause notice and he prayed for personal hearing.Though without giving any personal hearing to the petitioner, videorder dated 17.8.94 the authority inflicted the aforesaid penaltyof stoppage of 2 increments with future effect. Hence thispetition.

3. Reply affidavit was filed by the respondents and it isnot in dispute that personal hearing demanded by the petitioner inreplyto the show cause notice was not given to him.

4. In para 6 of the reply the respondents have justifiedtheir action of not giving personal hearing to the petitioner inthe matter as the disciplinary authority has taken intoconsideration all the aspects before passing the order dated17.8.94. It has further been stated that during the inquiry, thepetitioner was given ample opportunity of hearing and therefore,there was no necessity to give any personal hearing to thepetitioner. Same thing has been repeated in para 10 of the reply.Reference to para 9 of the reply is necessary to be made. Therespondents have stated in para 9 that after taking intoconsideration the report of the preliminary Inquiry Officer, thecompetent authority had submitted a report to the Government andon the basis of the said report the Government has taken actionagainst ithe petitioner. Though the Rules viz. the Gujarat CivilServices(Discipline and Appeal) Rules 1971 may not provide forsuch an opportunity of hearing to be afforded to the petitionernevertheless at the same time there is no provision in the Rulesaforesaid which bars such an opportunity to be given. I find nosubstance in the submission of Shri Bambhania that as in theinquiry the petitioner was given full opportunity of hearing nofurther opportunity to be given to the petitioner . The inquiryreport, as stated earlier is in favour of the petitioner and thedisciplinary has not agreed to that report. In suchcircumstances, where the disciplinary authority has disagreed withthe report of the inquiry officer, an opportunity of hearingshould have been given to the petitioner when he prayed for thesame. Mr. Bambania has not very seriously opposed this aspect.

Conclusion

5. In the result, this petition is partly allowed. The orderdated 17.8..94 at Annexure-F is set aside. The matter is sentback to the respondent no.1 with a direction to afford anopportunity of hearing to the petitioner and after hearing thepetitioner to pass appropriate orders in accordance with law.

Rule is made absolute in the aforesaid terms. No order asto costs.

cgg

for correction pl.see original