(1.) By this writ application under Article 226 of the Constitution of India, the writ applicant, a former Government
Servant, has prayed for the following reliefs;
"(A) quash and set aside the impugned punishment order dated 9.9.2003, Annexure -A to this petition, and
(B) direct the respondent authorities to continue the petitioner in service with all consequential benefits as if the impugned punishment order was not passed, and
(C ) award the cost of the petition, and
(D) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and
(E) pending admission and final disposal of this petition, the Honourable Court may be pleased to grant mandatory injunction against the further implementation and operation of the impugned punishment order dated 9.9.2003, Annexure -A to this petition, and /or
(F) pending admission and final disposal of this petition, the Honourable Court may be pleased to grant any other relief in the nature of interim relief and any other order in the nature of interim order, which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and/or
(G) to pass such other and further orders as may be deemed just and proper in the facts and circumstances of the case."
(2.) The facts of this case may be summarized as under;
2.1 The petitioner had joined his services on 11.12.1973. In 1986, he was promoted as Industrial Promotion Officer, Class II. While he was discharging his services as an Officer of Class - II, he was given additional charge of Manager, Khadi which is a post of Class -I. His duties as Manager, Khadi, required him to distribute Aada looms and Ghoda looms to various Co - operative Societies. For distribution of these looms to various Co -operative Societies, various procedural requirements were set out in the department and after following those requirements, the person concerned was to distribute to the Co -operative Societies for the use of the looms. The norms were to be given to the Co -operative Societies, after sharing financial burden by the State. Therefore, it was scheduled to be distributed in a function which was attended by the Hon'ble Industries Minister which was only in ceremonial in character. The looms were distributed to the Co -operative Societies but while distributing the looms, the Officer i.e. the petitioner undertook supervision. But the proper procedure as established by the Department was not followed. It resulted into a financial loss to the Department. Such providence took place while the petitioner was holding additional charge of the post of Manager, Khadi, though his substantive position was Industrial Promotion Officer, Class -II. In this background, a show cause notice was issued to the petitioner.
2.2 A departmental charge -sheet was issued, containing the following charges;
"( a) As many as 1311 Aada looms and 502 Ghoda looms were sanctioned along with other equipments/tools to about 163 Handlooms Weavers' Co -operative Societies in Surendranagar District. The total cost of the looms and equipment tools amounted to Rs. 53.18 lakh and 75 percent of the amount i.e. Rs. 39.88 lakh was sanctioned. Instead of scrutinizing the proposal beforesanctioning assistance, as laid down under the Government Resolution issued in this regard to thepackage scheme, as many as 1813 looms weresanctioned simultaneously (at a one go) in the last two days of the financial year i.e. on 30.3.1991.
(b) Shri Chavada did not take precaution to spend Government money in accordance with financial discipline and propriety.
(c ) Before sanctioning such assistance, Shri Chavada should have or caused to have scrutinized the proposal as to the number of looms the Co -operatives had, the condition of the existing equipments, whether they were to be given to the new members or the old members, what kind of equipment assistance were sanctioned to the said Cooperative Societies from the District Industrial Center; whether utility period of the equipment provided earlier had come to an end, whether there was any convenient place to keep the handlooms. He should have or caused to have taken spot visit of the Co -operatives and then granted the administrative sanction. Instead, he took the decision to sanction the assistance in the last two days of the financial year.
(d) Shri Chavada sanctioned 5 looms to some Co - operative Societies. Shri Chavada neither determined any norm nor any standard for getting 5 to 27 looms to Cooperative Societies others. It seems he sanctioned them only to serve his own purpose.
(e) 75 per cent assistance of the total cost of equipments/tools was sanctioned on the same day of granting administrative sanction for equipments to the Co -operative. No time was given to intimate the Cooperative Societies/members to prepare the looms.
(f) No written requisition letter of intent was received from the Co -operative Societies as laid down in the Rules.
(g) Proceedings were not carried out as per the instructions given in the Circular dated 14.7.1987.
(h) Despite repeated instructions were sent for utilization and disbursement certificate regarding, after sanctioning financial assistance to the Co -operatives, he did not send certificate of disbursement made on 31.3.1991. When the Commissionerate inquired about the disbursement of 1813 looms, it was revealed that only 56 looms were prepared. Thus, at no stage was it ascertained that whether the weaving Co -operatives had actually prepared the looms or not.
(i) In spite of there being instructions that the Manager (KVIC) should himself carry out investigation of the Cooperative Societies which had received assistance of more than Rs. 10,000/ - Shri Chavada did not investigate himself though assistance of more than Rs. 10,000/ - was paid to 148 Co -operative Societies.
(j) In condition No. 10 of the order sanctioning assistance of Rs. 39.88 lakh by Shri Chavada, it has been mentioned that the Co -operative Societies will be allowed to withdraw the assistance only after the Weaving Supervisor carries out spot inspection and submit his opinion and issue the certificate. However, Shri Chavada allowed all the Co -operative Societies to withdraw the amount under his signature without obtaining the certificate."
2.3 The writ applicant filed his defence statement. An Inquiry Officer was appointed for the purpose of the departmental inquiry. The inquiry officer reached to the conclusion that the charges against the writ applicant were provisionally established.
2.4 The State Government, thereafter, considered the report of the inquiry officer and the other materials on record, and by the impugned order dated 9th September, 2003, removed the petitioner from the services. Hence, this writ application.
(3.) It appears from the materials on record that this writ application was heard and adjudicated on 4th July, 2008. A
learned Single Judge of this Court disposed of the writ
application observing as under;
"18. The learned counsel for the petitioner has submitted that the day from which the petitioner has been ordered to be dismissed, he is prepared to put an application that he should be permitted to voluntarily retire on that day that would save the Government any kind of embarrassment. The petitioner would not go back on service and the financial implication would also not put to a greater magnitude and the petitioner can be awarded the benefit of getting voluntarily retired from that date with pensionary benefits. This Court feels that it would not have been proper if this Court would have passed the order of punishment of voluntary retirement of the petitioner. Instead of going through the exercise of complete analysis of things and then pass a final order at their end it is better left to the State Government. If a punishment of voluntary retirement is given simpliciter, it would only entail the petitioner to retire and go home without pensionary benefits. It would be depriving the petitioner of his pensionary benefits. He has put in considerable period of services i.e. from 1973 at the disposal of the Government. Thus this Court feels that the Government may permit the petitioner to apply for voluntary retirement from the date he has been ordered and to give him retirement with pensionary benefits or make conversion of the punishment of dismissal into voluntary retirement but then that should also be coupled with appropriate pensionary benefits. Either of these two course may be adopted by the Government. With the aforesaid observation, the matter is remitted to the Government for appropriate decision.
19. The other questions of judging the merits of the inquiry are not gone into in view of the question of punishment alone having been considered in light of the offer made by the petitioner himself.
20. In the result, the writ petition is disposed of with the direction that the Government may permit the petitioner to make an application to retire him voluntarily and accord pensionary benefits or may alter the sentence awarded to him in a sentence of a voluntary retirement with pensionary benefits. For this, the order passed in Inquiry will be treated to be non -existent. Rule is made absolute accordingly." ;