N H ZAVERI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner has prayed to quash and set aside condition No. 2 contained in Government Circular dated 10th February 2004 and the communication dated 22nd November 2007 and also prayed for a direction to the respondent authorities to permit the petitioner to engage Defense Assistant of his choice, in accordance with law, in his departmental inquiry.

(2.) THE petitioner is working as Assistant Director of Industrial Safety and Health. The petitioner was issued a chargesheet on 16th February 2005. In response to the said chargesheet the petitioner has submitted his defense statement. After submission of defense statement by the petitioner, the authorities of the Government issued an order dated 18th April 2006 whereby the inquiry was assigned to Special Officer of Departmental Inquiry at Gandhinagar. On 10th July 2006 the petitioner appeared before the Inquiry Officer and submitted an application requesting to permit the petitioner to engage the Defense Assistant for the said inquiry. He has also named one Shri H. K. Vajirani, Retired Deputy Secretary of the Government who has agreed to defend the case of the petitioner. The Inquiry Officer has, vide letter dated 22nd November 2007, informed the petitioner that in view of the provisions, especially condition no. 2 contained in the Circular dated 10th February 2004, the petitioner cannot engage Shri Vajirani as his Defense Assistant since he has retired on 30th June 1987 and more than five years have passed after his retirement. Therefore the petitioner has challenged the said condition no. 2 of the aforesaid Circular as also the communication dated 22nd November 2007.

(3.) MR. Upadhyay, learned Advocate for th petitioner submitted that the restriction put by the Government to engage a defence assistant is illegal and arbitrary. He submitted that the executive instruction in the form of Circular dated 10th February 2004 amounts to denial of reasonable opportunity of defence to the petitioner. He submitted that the condition does not apply in case of an employee who has tendered resignation from the service. According to him if an employee has resigned after more than 20 years of service or after any number of years of service, he is available as Defense Assistant even after whatever number of years after his resignation and therefore the condition has no raitonal basis. He further submitted that if an employee has taken voluntary retirement after 20 years of service, for example, at the age of 50 years, he is available until he attains the age of 55 years and not thereafter. Further, if an officer has retired on attaining the age of superannuation, he is available as Defence Assistant until he attains the age of 63 years. Mr. Upadhyay further submitted that the Government is neither competent nor can be concerned about the age of a person who is ready to help the chargesheeted office in his departmental inquiry.