(Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR) 1. By way of this petition, the petitioner, who was a Judicial Officer, has challenged the Notification dated 3.10.2011 issued by the State Government, dismissing him from service.
2. The petitioner was appointed as Civil Judge (J.D.) and J.M.F.C. on 1.8.1991. At the time when petitioner was in service, he was subjected to the departmental inquiry which preceded by charge-sheet dated 23.9.2008. It was alleged against the petitioner that while working at Jamnagar and Lalpur Courts during the period between 14.6.1999 and 6.8.2000, he failed to verify muddamal, as a result of which, two muddamal bottles of wine were found tampered with and it was found that there was a breach of Paragraph 217 of the Criminal Manual. The petitioner gave his defence statement denying all the charges levelled against him.
3. It is required to be noted that initially departmental inquiry was conducted against three employees, viz. Mr.B. T. Dalsanuria, Mr.R.R. Antani and Mr.K.K.Parmar, who were in charge of the aforesaid muddamal during different periods. It was alleged against the petitioner that he being an experienced Judge should be aware of the provisions of Paragraph 217 of the Criminal Manual regarding verification of the muddamal articles and is required to verify the muddamal articles personally at the end of every quarter. The charge against the petitioner was, therefore, of negligence.
4. It is the case of the petitioner that alleged tampering with wine bottles had taken place before his tenure at the relevant place. At the relevant time, the verification of muddamal was not done by his predecessor and even subsequently by his successor and the staff members, in whose custody the muddamal remained. The concerned persons were also subjected to departmental inquiry in this behalf, but ultimately they were exonerated. After conclusion of the inquiry, the petitioner was subjected to second show cause notice along with Inquiry Officer's report. The petitioner gave his reply and ultimately, by Notification dated 3.10.2011, the State Government on the recommendation of the High Court, dismissed the petitioner from service. It is the aforesaid order of dismissal which is under challenge in this petition.
5. Learned counsel, Mr.Supehia appearing for the petitioner submitted that this is a case of no evidence, as the petitioner was not in any way concerned, as the Clerk and/or the Nazir of the Court is required to make the entry in the register. It is submitted that even the persons, who were in charge of the muddamal, were exonerated in the inquiry and there is no reason as to why the petitioner is made scapegoat in this behalf. Mr.Supehia further submitted that this is not a case where any allegation of corruption is made against the petitioner and that the inquiry was initiated against the petitioner after a period of about 8 years, after the so called incident of missing some entries in the muddamal register was noticed. It is submitted that in that view of the matter, the impugned Notification removing him from service is required to be set aside.
6. During the pendency of hearing, the petitioner had, on 3.7.2012, shown his willingness to offer voluntary retirement in substitution of order of dismissal. The suggestion put forward by the petitioner through his advocate, was brought to the notice of learned Counsel, Mr.Shalin Mehta appearing for High Court on its administrative side. Accordingly, the suggestion was placed before the High Court and the learned Counsel, Mr.Shalin Mehta informed the Court that the Full Court of the High Court on its administrative side has accepted the suggestion of the petitioner by permitting him to retire voluntarily. The said communication is placed on record by Mr.Mehta.
7. Learned AGP, Mr.Krina Calla for respondent No.1 submitted that initially, on the basis of the recommendation of the High Court, the impugned Notification was issued dismissing the petitioner from service. Now, if any fresh proposal is received from the High Court, the State Government may require to take fresh decision, which may take some time.
8. It is required to be noted that ultimately the State Government is required to pass an order on the basis of the recommendation of the High Court so far as the aspect of punishment to the Judicial Officer is concerned. The State Government is ultimately required to accept the suggestion of the High Court in this behalf. It is true that if any proposal is received, the State Government is required to take decision. But, in our view, since this Court on merits, is satisfied that the penalty inflicted on the petitioner is highly disproportionate and even otherwise, the inquiry was initiated after more than 8 years, the order of dismissal is required to be interfered with by this Court in this petition. Since, now the petitioner himself has stated before the Court that he is not interested in reinstatement and he may be permitted to voluntarily retire from service, we are of the opinion that the order of dismissal is required to be set aside suitably.
9. The suggestion made by the petitioner has already been accepted by the High Court on its administrative side and in our view, even otherwise this is a fit case in which the order of dismissal is required to be set aside. Considering the fact that even if there is a negligence on the part of the petitioner to some extent, the inquiry was conducted after considerable long time. Keeping all these aspects in mind, in our view, the order of dismissal is required to be set aside.
10. Accordingly, the petition is partly allowed by setting aside the order of removal passed against the petitioner vide Notification dated 3.10.2011 by the State Government. The aforesaid order is substituted by passing an order of voluntary retirement. It is held that the petitioner is deemed to have been voluntarily retired from service with effect from 3.10.2011. The order of penalty is accordingly substituted by the above order. The State Government is directed to give whatever benefits the petitioner is entitled to on the basis of this order on or before 31.10.2012.
11. Rule is made absolute to the aforesaid extent with no order as to costs.
(P.B.MAJMUDAR, J.) (vipul) (MOHINDER PAL, J.)