1.0 By way of present petition, the petitioner has prayed for following relief/s:
7.a.
Your Lordships be pleased to quash and set aside the Orders annexed at Annexure A hereinbefore to the present petition and (i) Order No. Ijar/Makam/84-08/4580 to 88 dated April 13, 2010 ( 13.04.2010) by which the period of suspension to the extent of 248 ( Two Hundred Forty Eight) days is treated as leave due and as "non-duty."
(ii) Order dated June 18, 2011 ( 18.06.2011) by which his representation to review the said decision is rejected by the office of Respondent No. 2(iii) Order dated May 26, 2010 ( 26.05.2010) by which his representation for considering the suspension period as an extra ordinary leave is refused (iv) Against the decision dated January 11, 2010 (11.01.1010) by which the Respondent No.2 has imposed the minor punishment of withholding of 1 (one) yearly increment for three months without future effect and respondents may grant all the consequential benefits to the petitioner.
The petitioner was put under suspension on 04.12.2008. He was reinstated on August 09, 2009 by revoking the suspension vide order as such he remained under suspension for the period from December 2005 to 09.08.2009, ( total 248 days). The petitioner was served with charge sheet mentioning three charges. The inquiry officer was appointed who submitted his report to the disciplinary authority. On the basis of the inquiry report, the disciplinary authority decided to impose minor penalty of withholding of an yearly increment for three months without future effect.
2.1 The petitioner retired from service on 31.05.2010 on attaining the age of superannuation. Till then he has not challenged any of the actions. Thereafter he made a representation to the respondent authorities to consider either to treat his suspension period as an extra ordinary leave or be treated as period spent on duty. No response was given to the said representation.
3.0 Learned advocate for the petitioner contended that the petitioner was required to be heard before passing order with regard to regularization of suspension period. In the present case the petitioner was not heard. According to learned Advocate, the petitioner is neither heard nor given any show cause notice before deciding the period of suspension as "leave due" and as "not" spent on duty. Hence it is in violation of the decision of Hon'ble Supreme Court in case of O.P. Gupta versus Union of India and others reported in 1987(5) SLR 288. He also challenged the action of with-holding one increment for three moths by stating that the same is contrary to law.
4.0 Mr.
Dave, learned Assistant Government Pleader for the respondent- State submitted that the petition is belated one and has been filed merely as an after thought. Looking to the serious allegations of not signing the cash book and cheque the authorities thought fit to impose the minor penalty of withholding of an yearly increment for three months without future effect.
5.0 Learned Assistant Government Pleader appearing for the respondent placed reliance on the decision of the Division Bench of this Court in case of K.D. Desai Vs. High Court of Gujarat reported in 2009(3) G.L.H. 631 wherein it is stated that while deciding the question under sub-rules (2) and (4) of Rule 152, whether the delinquent should be given full pay and allowances for the period of suspension, the Competent Authority will have to consider both the questions whether delinquent was fully exonerated in the Departmental Inquiry or whether suspension was wholly justified in light of the findings given at the conclusion of the Departmental Inquiry. It is further held that even where the charges are not proved, the Competent Authority would be justified in considering whether the charges were not proved on account of insufficiency of evidence or benefit of doubt having been given to the delinquent. The disciplinary Authority has discretion under the Rules to decide whether the period of suspension should be treated as period spent on duty or not spent on duty. In the aforesaid it is also held that on facts, upon perusal of inquiry report accepted by Competent Authority, it was found that charge Nos. 2 and 3 were not proved on account of lack of sufficient legal evidence and therefore, it cannot be said that suspension of petitioner was wholly unjustified merely because all the charges levelled were not proved.
6.0 In the present case an inquiry was conducted against the petitioner. The Charge No.3 was proved inasmuch as the petitioner had not initialed in the cash book though entries were made at the relevant time. Therefore there was a lapse on the part of the petitioner. In that view of the matter a minor penalty of with-holding an yearly increment for three months without future effect was imposed. I am of the view that looking to the nature of the allegation the punishment imposed is just and proper. Further, the competent authority is fully empowered to consider the period of leave. This court cannot sit in appeal over the said decision and is in complete agreement with the reasonings of the competent authority. Even otherwise the petitioner has waited to retire from service to challenge the impugned decision resulting into gross delay. Therefore this is not a deserving case to grant the reliefs prayed in the present petition.
7.0 The petitioner had made representation to the Respondent No.2 to the Government seeking for guidance regarding leave encashment and decision vide letters dated 29.07.2011, 24.02.2012 which have not received any response or reply from the Government. In that view of the matter, the representation made by the petitioner on 29.07.2011 shall be decided by the competent authority within a period of three months from the date of receipt of the writ of order of this Court. It will be open to the petitioner to serve this order to the authority by direct service.
8.0 With the above observation the petition is disposed of.
(K.S.JHAVERI,J.) niru* Top