N M MANDALIA Vs. BHAVNAGAR MUNICIPALITY
LAWS(GJH)-1983-12-32
HIGH COURT OF GUJARAT
Decided on December 06,1983

N.M.MANDALIA Appellant
VERSUS
BHAVNAGAR MUNICIPALITY Respondents

JUDGEMENT

A.M.AHMADI - (1.) By an order dated 24/ 25/11/1975 Annexure A the petitioner was appointed on probation as a Leg-cum-Labour Officer in the scale of Rs. 223-10-323-20-403-29-461 plus allowances as admissible under the rules initially for a period of three months. The probation period was extended from time to time thereafter. It is the contention of the petitioner that he was confirmed in due course but that is a matter of controversy which is not required to be adjudicated upon for the disposal of this petition.
(2.) it appears that during the course of service the petitioner is alleged to have misconducted himself. The first show cause notice was issued on 27/12/1977. The second and the third show cause notices were issued on 30th December 1977. To all ll these three show cause notices the petitioner replied on 31/12/1977 denying all the allegations made against him. Thereupon the management decided to institute a departmental inquiry against him and served him with a chargesheet dated 24/01/1978. After the service of the charge- sheet inspection of certain documents was sought with which we are not concerned. The petitioner submitted a written statement in answer to the chargesheet on 27/01/1978. The Enquiry Officer fixed 8/03/1978 as the date on which the petitioner was requires to attend with his witnesses. The petitioner did not appear on that date for reasons stated in paragraph 19(i) of the petition. It is not necessary to go into the question whether the petitioner deliberately remained absent as alleged by the management but it is sufficient to assume that he did not present himself on the March 1978 whereupon the Enquiry Officer submitted his report on 8/03/1978. It may however be clarified that even though the petitioner did not remain present on 8/03/1978 the management did not examine any witness before the Enquiry Officer in support of the charge levelled against the petitioner. In other words on the basis of the allegations made in the chargesheet and the documents produced before the Enquiry Officer the Enquiry Officer submitted his report on 10/03/1978. This report was placed before the Executive Committee of the Municipality which by its Resolution No. 5814 of even date decided to put an end to the employment of the petitioner by a simple termination order. The petitioner therefore filed this petition challenging the order of termination mainly on the ground that it was penal in nature. He has also challenged the order on the ground that the Enquiry Officer was both the prosecutor and the Judge inasmuch as one of the charges levelled against the petitioner was that he had made allegations against the Chairman of the Executive Committee of the Municipality.
(3.) In the affidavit-in-reply filed on behalf of the respondent it is mainly contended that the impugned order is an order of termina- tion simpliciter and is not by way of a penalty and therefore the petitioner is not entitled to any relief since he had no right to the post as he was a mere probationer. It is also denied that the petitioner was at any point of time confirmed as a Legal-cum-Labour Officer of the Municipality. In paragraph is of the affidavit-in-reply it is stated that the petitioner was informed about the date of hearing but in order to avoid the inquiry he sent an application for casual leave which was rejected. He stated that the petitioner had no right to assume that his application for leave would be granted and therefore he ought to have attended the inquiry on 8/03/1978. In paragraph 20 of the affidavit- in reply it is stated that as the petitioner did not avail himself or the opportunity given to him and remained against on 8/03/1978 there was no question of further inquiry and the matter had to has decided on the basis of the previous three slow cause notices the chargesheet and the replies given by the petitioner a the show notices. It is further aver red that the petitioner thus had ample oppor- tunity to refute the charges against him and no personal hearing could be insisted upon. In answer to the petitioners allegation on that the Enquiry Officer was both a persecutor and a Judge it is averred that the Enquiry Officer was not supposed to adjudicate on the question whether the charge was proved against the petitioner. That was a matter on which the Executive Committee had to the a decision. In other words it is contended that he was merely appointed to collect the evidence against the petitioner and it fives not his function to adjudicate on the question whether the charge of misconduct was established against the petitioner. It is lastly contended that the services of the petitioner are terminated by a simple order of termination under which no stigma is intended to be attached. Proceeding further the deponent the Chief Officer avers in paragraph 20 as under: I submit that I am willing to make a solemn declaration before the Honourable Court to say that the order of termination of the services of the petitioner is without attaching any stigma to it and that his services stand terminated simply as such. ;


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