Decided on December 11,1979



N.H.BHATT - (1.) This is a petition by one Talati-cum-Mantri in the service of the District Panchayat of Bharuch. The petition is directed against the order of his dismissal passed by the Deputy District Development Officer of the District Panchayat. The said officer is the sole respondent in this petition. The impugned order is Annexure D to the petition.
(2.) A few facts require to be stated. An enquiry was held against the petitioner in respect of the four charges by one Mr. Vasvani who was the Deputy District Development Officer at the relevant time. There were four charges levelled against him. They were: (1) Purchasing property without applying for the previous permission of the Panchayat and thus violating the Conduct Rule 16; (2) Purchasing another property in the name of his wife without the Governments permission; (3) Taking bribe of Rs. 300.00 from one Jaisinh Umedsinh in respect of some partition matter; and (4) Taking bribe of Rs. 200/- from Muljibhai Dhulabhai; At the close of the enquiry Mr. Vasvani who has filed the affidavit-inreply in this petition submitted his report. As far as the two charges of bribery are concerned he said that the charges could not be said to be proved but the conduct of the delinquent in respect of those charges was not above the breath of suspicion. The other two charges were held as proved. Thereafter the Deputy District Development Officer the competent authority gave the notice Annexure A dated 20-2-75 to the delinquent calling upon him to show cause why the four charges which were held as proved as per the report of the Anti-Corruption Bureau should not result into the infliction of any one of the penalties mentioned in Rule 5 of the Gujarat Panchayat Services Conduct Rules 1964 and the petitioner should give his explanation to the same because the charges were held as proved. It was further stated that the petitioner was liable to be visited with any of the punishments provided in Rule 5 of the above-said Rules. The petitioner submitted his reply Annexure R denying the charges and then the impugned order came to be passed. It is not clear whether the officer who conducted the enquiry namely Mr. Vasvani was the very officer who passed the impugned order Annexure D. But from the affidavit-in filed filed by Mr. Vasvani it appears possible that the officer who held the enquiry and the officer who passed the order might be different. At any rate neither the petitioners advocate nor the advocate of the respondent is in a position to lend any light in that regard. However the matter does not depend on this finding one way or the other and therefore I ignore it and proceed further.
(3.) Mr. Vyas the learned advocate appearing for the sole respondent herein raised a preliminary objection to the maintainability of this petition by urging that the petition had not availed himself of the alternative remedy of appeal to the District Development Officer and of the revision to the Development Commissioner of the State and he urged that on this short ground the petition should be rejected. Not as a mandate of law (because of Article 226(3) of the constitution of India as was there in the year 1976 having been deleted) but as a matter of self-imposed rule of procedure developed by this court and the Supreme Court the prerogative writ jurisdiction is not entertained when the litigant has not exhausted alternative remedies and particularly the remedies like an appeal under some law. This question however was prominently before this court when the matter was at the admissional stage. Despite this point having been urged this court admitted the matter. This would mean that the petitioner was led into the belief that this court was not insistent on that normal rule of exhausting alternative remedy before approaching this Court and it would be too late in the day for me now to reject this petition after more than 32 years of its life in this court. Because of this courts action in admitting the matter the petitioner has lost that chance of preferring appeal. Moreover as I shall instantly show the order is proved to be ex-facie bad for a variety of reasons.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.