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S.T. Dasadia Vs. Commissioner, Surat Municipal Corporation - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1983)1GLR770
AppellantS.T. Dasadia
RespondentCommissioner, Surat Municipal Corporation
Cases ReferredShadilal Gupta v. State of Punjab
Excerpt:
- - so this point which was canvassed does not stand in good stead to the petitioner. as a matter of fact, the affidavit-in-reply filed on behalf of the corporation clearly admits of a report made by the inquiry officer to the disciplinary authority namely, the commissioner. it was held that the failure on the part of the competent authority to provide the plaintiff with a copy of the report of the inquiry officer amounts to denial of reasonable opportunity contemplated by article 311 of the constitution of india......the dy. commissioner. the petitioner filed his reply annexure-b dated 12-7-1978. then a show-cause notice annexure-c dated 24-8-1978 was issued to the petitioner to which the petitioner had filed his reply annexure-d dated 27-9-1978. this was the preliminary stage of the inquiry and then a regular charge-sheet annexure-e came to be issued on 16-10-1978, to which the petitioner had filed his reply annexure-f dated 21-12-1978. thereafter, the regular inquiry was held and the petitioner had filed his final reply annexure-h dated 20-9-1979. then the impugned order annexure-j came to be passed by the municipal commissioner which is challenged in this petition. the first point that was urged before me was that the petitioner was not given audience on the question of punishment. section 56(3).....
Judgment:

N.H. Bhatt, J.

1. This is a petition by an employee of the Surat Municipal Corporation, being aggrieved by the Order Annexure-J dated 25-9-1981, stopping his promotion for five years from the day of the issuance of that order. This penalty had come to be imposed on him by the Municipal Commissioner, Surat, under Sections 56(1) and 56(2)(c) of the Bombay Provincial Municipal Corporations Act, 1949.

2. A few facts are required to be stated. On 26-6-1978, the petitioner was given a show-cause notice by the Dy. Commissioner. The petitioner filed his reply Annexure-B dated 12-7-1978. Then a show-cause notice Annexure-C dated 24-8-1978 was issued to the petitioner to which the petitioner had filed his reply Annexure-D dated 27-9-1978. This was the preliminary stage of the inquiry and then a regular charge-sheet Annexure-E came to be issued on 16-10-1978, to which the petitioner had filed his reply Annexure-F dated 21-12-1978. Thereafter, the regular inquiry was held and the petitioner had filed his final reply Annexure-H dated 20-9-1979. Then the impugned order Annexure-J came to be passed by the Municipal Commissioner which is challenged in this petition. The first point that was urged before me was that the petitioner was not given audience on the question of punishment. Section 56(3) of the Act mentions as follows:

No officer or servant shall be reduced to a lower post or removed or dismissed from service under this section, unless he has been given a reasonable opportunity of showing cause against such reduction, removal or dismissal.

However, we find that at the bottom of the charge-sheet, there was such a notice given (page 50 of the compilation of this writ petition). It has been specifically mentioned in paragraph 5 of that notice dated 16-10-1978 that the petitioner was further told to give his explanation, why the punishment of dismissal from service under Section 56(2)(h) of the Bombay Provincial Municipal Corporation Act, 1949, be not imposed on him. This means that he was given a notice as required under Section 56(3) of the said Act. After considering the attendant circumstances, the disciplinary authority, however, did not impose on him that extreme penalty, but imposed on him the penalty under Clause (b) in the form of withholding of his promotion for the period of five years. So this point which was canvassed does not stand in good stead to the petitioner.

3. It was then alleged that the aforesaid notice regarding the punishment amounts to pre-judge the issue. Ordinarily, it is to be assumed that a responsible public officer would not pre-judge that issue and so, the words of the notice are to be interpreted to mean that if the charges are ultimately substantiated or held as proved, the petitioner should also show cause against the penalty of dismissal from service. This is a reasonable interpretation to be placed in the circumstances of the case. A highly placed public officer cannot be easily charged with such a pre-conceived notice. If there is any such remote possibility of inference in the present case, the Commissioner had imposed on him, not the punishment of dismissal, which was initially thought possible in this case, but imposed on him only withholding of promotion for five years. This is again an indication and in my view a very clear indication that the Commissioner was open on the question of penalty when the above quoted notice was given. It was then alleged that the report of the Inquiry Officers was not given to the petitioner before the impugned order had come to be passed. When the whole inquiry was conducted by the Assistant Commissioner, his report, one way or the other, in the facts and circumstances of the case can be said to have importance. In this case it is to be pertinently noted that the inquiry was held by the Assistant Commissioner, whereas the disciplinary authority appears to be the Commissioner himself, who has passed the impugned order of penalty. In the circumstances, therefore, it is obvious that the report was made by the Assistant Commissioner to the Commissioner. As a matter of fact, the affidavit-in-reply filed on behalf of the Corporation clearly admits of a report made by the Inquiry Officer to the disciplinary authority namely, the Commissioner. After the order of penalty was passed, the petitioner had asked for the copy of the inquiry report by his application dated 14th October 1981, and the said inquiry report was given to the petitioner on 18th November 1981. So, the existence of the inquiry report by the Assistant Commissioner made to the Commissioner is a matter of record. Obviously the Commissioner acted on that report. In other words, an important document, namely, the inquiry report which was the basis of the final conclusion. This particular report which was acted upon by the Commissioner was not made available to the petitioner, who could have shown that the assessment of evidentially material by the inquiry officer was not proper. This unfortunately is the important lacuna in the whole of the inquiry. It is true that the petitioner had applied for that report on 14th October 1981, after the penalty was imposed on him, but till the order of penalty had come to be passed, he did not know that the report would be against him. So, there was no occasion for him to ask for the copy of the report earlier.

4. Mr. Desai, the learned Advocate for the Corporation very vehemently urged that giving an inquiry report to all the delinquents is not a matter of compulsion. I accept this general submission made by Mr. Desai, but it would depend upon the facts and circumstances of each case. When the inquiry report by person other than the disciplinary authority is a document relied upon by the disciplinary authority, giving of an inquiry report is a matter of obligation. It is one of the fundamental requirements of the principles of natural justice. In this connection reliance is placed by the judgment in the case of the State of Maharashtra v. Bhaishankar Avalram Joshi : [1969]3SCR917 delivered by the three Judges of the Supreme Court in the case arising from the judgment of this High Court. It was held that the failure on the part of the competent authority to provide the plaintiff with a copy of the report of the inquiry officer amounts to denial of reasonable opportunity contemplated by Article 311 of the Constitution of India. It was a case obviously under Article 311 of the Constitution of India, which is not attracted to the facts and circumstances of the present case because the employee here is governed by the provisions of the Bombay Provincial Municipal Corporations Act, 1949. What is material is that if the report is taken into account by the disciplinary authority, who himself had not conducted the inquiry and therefore, obviously would take advantage of the assessment of evidentially material by somebody else and could be persuaded also considerably thereby, the delinquent concerned must have an opportunity to rebut that assessment of evidence by an inquiry officer.

5. Another judgment of the Supreme Court, again of three Judges in the case of Shadilal Gupta v. State of Punjab : (1973)ILLJ435SC , which was quoted by Mr. Desai was of a minor punishment and the delinquent was not entitled to show cause against the proposed punishment. In that case it was held that the principles of natural justice cannot be said to have been violated, because the report was taken into account before the order inflicting a minor punishment was passed without supplying a copy thereof. As I said above, the elaborate inquiry here was conducted by the Assistant Commissioner, witnesses were examined before him and documentary evidence was adduced before him. The petitioner had given his two written submissions, running into number of pages, in respect of the assessment of evidence. His last suming up Annexure-H runs into more than 20 pages and it is to be assumed that all his submissions must have been dealt with by the inquiry officer. All that has been done by the Commissioner was passing of the order forthwith, without applying his mind, at any rate ostensibly and there is nothing to show that he had weighed all those materials in proper perspectives. I am not oblivious of the fact that the disciplinary authorities are not expected to write elaborate judgments, as we do in Courts of law, but at any rate they are expected to do modicom of that formality to lend assurance to the Court that they had not mechanically passed such orders. On this short ground, I set aside the impugned order Annexure-J, but I reserve liberty to the Commissioner to hear the petitioner on merits and penalty and then pass the appropriate orders, in accordance with law. From the stage when the papers came to the Commissioner, fresh steps are to be taken.

Rule is accordingly made absolute with no order as to costs.


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