1. Leave to amend is granted. Amendment to be carried out on or before 16/03/2012.
2. Heard learned advocate Mr. Chauhan for the petitioner and Mr. Niraj Ashar, Assistant Government Pleader for respondent no.1.
3. In view of the submissions made by learned advocate for the petitioner and particularly having regard to the amendment prayed for by the petitioner, at this stage, the petition is considered and decided on limited issue i.e. in light of the order dated 09/12/2011 passed by the Additional Development Commissioner, Gandhinagar and submissions made by learned counsel for the petitioner that though the petitioner had approached the learned Tribunal against the penalty order, the registrar of the Tribunal declined to receive the appeal on the ground that since the penalty order involves direction for cut in pension, the Tribunal will not have jurisdiction to decide the appeal.
4. Learned advocate Mr. Chauhan for the petitioner further clarified that so far as the decision of imposing cut/deduction from pension for five years is concerned, neither the petitioner is challenging the said decision nor the said now survives in view of passage of time. He also clarified that so far as the decision and penalty are concerned, the petitioner has forgone and he again forgoes any challenge against the said decision and the process of deduction of Rs.100/- from his pension is already in operation.
5. Learned advocate Mr.Chauhan also submitted and clarified that the petitioner has restricted his appeal and challenge as well as grievance only against the second part of the penalty order i.e. order requiring the petitioner to pay Rs.67,500/- that therefore the intimation given by the office of the learned Tribunal does not appear to be justified.
6. Since the reasoned order of the Tribunal is not available before the Court, it is difficult to ascertain the reason for such decision, particularly in light of the provision contained in the Panchayat Services (Discipline and Appeal), Rules, 1997 and norms norms settled under the provisions of Section-14(1) according to which the second appeal can be preferred against the decision of disciplinary authority, before appropriate forum.
7. In view of the stipulation by the petitioner that the order and direction imposing penalty of deduction of Rs.100/- from pension is not under challenge, it appears that following direction would suffice, for the present.
8. In light of the declaration and stipulation made by the petitioner, the petitioner is permitted to withdraw the petition at this stage with a view to preferring appropriate appeal proceedings before learned Tribunal.
9. If such appeal is preferred within fifteen days from today, learned Tribunal would consider the same in light of above referred stipulation and observations made by the petitioner before this Court and if after consideration of the said declaration before the learned tribunal for any reason and in light of the provisions under the Act and applicable rules the learned Tribunal comes to the conclusion that appeal is not maintainable then the Tribunal shall pass reasoned order mentioning the reasons for such decision. If the appeal is rejected by the learned Tribunal on the said solitary ground (i.e. not on merits) then it would be open to the petitioner to file appropriate application and revive present petition (but not if appeal is heard and decided on merits).
10. With the aforesaid clarification, present petition stands disposed of. Direct service is permitted.
(K.M.THAKER, J.) (ila) Top