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SCA/1943/2011 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1943 of 2011
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=====================================================
PATEL
AMITBHAI KASHIBHAI - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 5 - Respondent(s)
=====================================================
Appearance :
Mr.S.I.Nanavati,
learned Senior Advocate with Mr.Saurabh Mehta and MS ANUJA S
NANAVATI for Petitioner
Mr.Nirag Pathak, learned ASST.GOVERNMENT
PLEADER for Respondents Nos: 1 - 2.
MR PV HATHI for Respondents
Nos: 3 - 4.
MR BHUNESH C RUPERA and MRS REKHA H KAPADIA for
Respondents Nos: 5 -
6.
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 15/03/2011
ORAL
JUDGMENT
1. Rule.
Mr.Maulik G.Nanavati, learned Assistant Government Pleader waives
service of notice of Rule for respondents Nos.1 and 2.
Mr.P.V.Hathi,learned advocate waives service of notice of Rule for
respondents Nos.3 and 4. Mr.Bhunesh C. Rupera and Ms.Rekha H.Kapadia,
learned advocates wavies service of notice of Rule for respondents
Nos.5 and 6.
2. This
petition under Article 226 of the Constitution of India, has been
filed with the following prayers:
“A)
Your Lordships may be pleased to issue a writ of mandamus or any
other appropriate writ, order or diction by quashing and setting aide
the impugned order dated 07/01/2011 at Annexure ‘A’ and further be
pleased to direct the Respondents, their servants, agents and
subordinates to reinstate the Petitioner in service as Vidya Sahayak
with continuity of service and with all other consequential and
incidental benefits as if no order of cancellation of appointment is
ever passed against the present Petitioner.
(B)
Pending hearing and till final disposal of the present petition, Your
Lordships may be pleased to stay and suspend the further
implementation, operation, execution and enforcement of the impugned
judgment dated 07/01/2011 at Annexure ‘A’ and further be pleased to
restrain the Respondent their servants, agents, subordinates from
making any appointment on the post where the Petitioner was
discharging his duties as Vidya Sahayak and further be pleased to
direct their servants, agents and subordinates to keep the said post
vacant till the final disposal of the present petition.
(C) Any
other and further relief that this Hon’ble Court may deem fit and
proper be passed.”
3. Respondent
No.4, District Primary Education Officer issued an advertisement for
appointment of Vidya Sahayaks in District Jamnagar. Pursuant thereto,
the petitioner applied in the prescribed form, along with necessary
documents and was given appointment as Vidya Sahayak. Certain
complaints were received by the authorities regarding purported
irregularities in the process of selection of Vidya Sahayaks.
Pursuant thereto, the Director of Primary Education ordered an
inquiry to be conducted. The said inquiry was conducted by the Deputy
Director of Primary Education. The Inquiry Officer submitted his
Report on 28-7-2010. After receipt thereof, the Director of Primary
Education instructed the District Primary Education Officer to
initiate proceedings, based upon the findings in the Inquiry Report.
The District Primary Education Officer issued show cause notices to
84 persons named in the Report, including the petitioner. The
noticees were given personal hearing and their statements were
recorded. Thereafter, by the impugned order dated 07-01-2011 passed
by the District Primary Education Officer (Respondent No.4), the
services of 84 persons,including the petitioner,were terminated.
Aggrieved thereby, the petitioner has approached this Court by filing
the present petition.
4. A
Caveat was filed by respondent No.4. Therefore, this Court, before
issuing notice on 28-01-2011, extensively heard the submissions made
by Mr.S.I.Nanavati, learned Senior Advocate for the petitioner and
Mr.P.V.Hathi, learned advocate for respondents Nos.3 and 4. On
perusal of the impugned order dated 07-01-2011, it was prima facie
observed by this Court, that the said order is self- contradictory,
inasmuch as it is stated in the first paragraph thereof that the
Sports Certificates of the petitioner were not appended to the
application. In the second paragraph it is stated that the Sports
Certificates have not been certified whereas, in the third paragraph
it is stated that the Sports Certificates have been submitted later
on. The Court also took note of the submissions advanced by the
learned Senior Advocate for the petitioner that before passing the
impugned order, the petitioner was not granted an effective
opportunity of meeting with the allegations leveled against him, as
the Report of the inquiry and documents relied upon by the District
Primary Education Officer, had not been supplied to him.
5. Today,
when the matter is taken up it is stated by Mr.Maulik G.Nanavati,
learned Assistant Government Pleader, upon instructions from
Mr.R.C.Rawal, Director, Primary Education, Government of Gujarat, who
is present in the Court today, that a Committee comprising of three
Officers, including one Officer from the Office of the Director,
Primary Education, one Officer from the Education Department not
below the rank of Under Secretary, and the District Primary Education
Officer,Jamnagar who is the appointing authority, shall be
constituted by the State Government. The said Committee will issue
individual show cause notices to all 84 individuals, whose names
figure in the Inquiry Report, including the petitioner, specifying
the allegations against them and annexing a copy of the Inquiry
Report as well as copies of any other documents relied upon against
them. The concerned individuals may file written replies to the show
cause notices. Thereafter, each individual shall be afforded an
opportunity of personal hearing. The personal hearing shall take
place at Jamnagar. Thereafter, individual orders shall be passed
which shall be communicated to the concerned persons by Registered
Post. Till such time, as the final order is passed, 84 posts of Vidya
Sahayaks would be kept vacant in District Jamnagar by the District
Primary Education Officer.
6. At
this stage, Mr.S.I.Nanavati, learned Senior Advocate for the
petitioner states that in case the petitioner is found innocent and
is absolved of all charges by the Committee, he shall claim only
continuity of service as though the termination had not taken place.
7. Mr.Maulik
G.Nanavati, learned Assistant Government Pleader, in response to the
above statement of the learned Senior Advocate for the petitioner
states, upon instructions that in case the petitioner is found
innocent and absolved of all the charges by the Committee, an
appropriate decision regarding continuity of service shall be taken
by the Committee.
8. Mr.S.I.Nanavati,
learned Senior Advocate, has brought to the notice of this Court
order dated 04-03-2011 issued by the Taluka Development Officer
pursuant to instructions by respondent No.4 dated 24-02-2011, whereby
recovery of the entire amount of salary of the petitioner from the
time he was appointed, has been sought to be effected. A specimen
copy of the said order is tendered by the learned Senior Advocate
and is taken on the record of the case.
9. Having
heard the learned advocates for the respective parties and in view of
the statements made by the learned Assistant Government Pleader and
learned Senior Advocate at the Bar, the following order is passed:
(a) As
the order dated 07-01-2011 suffers from inherent contradictions,
inasmuch as it is stated in the first paragraph thereof that the
Sports Certificates of the petitioner were not appended to the
application and in the second paragraph it is stated that the Sports
Certificates have not been certified, whereas, in the third paragraph
it is stated that the Sports Certificates have been submitted later
on; it clearly appears that the said order has been passed without
proper application of mind. It is also not clear from the said order
whether one, or all, of the alleged defects have been found in the
case of the petitioner as the order is identical in all cases. It is
further noticed that in the said order it is mentioned that the High
Court, by order dated 15-9-2010, passed
in Special Civil Application No.8875 of 2010 with Special Civil
Application No.9412 of 2010, has directed that 84 candidates be
proceeded against, pursuant to the Inquiry Report. However, upon
perusal of the said order of this Court, it is found that it contains
no such direction. The observations made in paragraph 3 of the said
order, which appear to have been misunderstood by the respondent,
have since been clarified by the Division Bench, in order dated
31-01-2011, passed in Letters patent Appeal (St.) No.145 of 2011,
wherein it has been stated that such observations cannot be read as a
mandate or a direction by the High Court to the authority for
cancellation of the appointment.
(b) It
has also been submitted by the learned Senior Advocate for the
petitioner that before passing the impugned order neither the
documents relied upon against the petitioner nor a copy of the
Inquiry Report have been given to him. This aspect is not denied by
the learned advocate for respondent No.4 by submitting that the
petitioner did not demand the documents or the Inquiry Report,
therefore, they were not supplied. The
reason for not supplying the documents relied upon against the
petitioner and a copy of the Inquiry Report, cannot be countenanced
by this Court. It is a settled position of law that no action
entailing adverse, or civil consequences, can be taken without
affording the person concerned a proper and adequate opportunity to
meet with the allegations levelled against him. When the copy of the
Inquiry Report and documents relied upon against the petitioner have
not been supplied to him, it cannot be said that an effective or
adequate opportunity of hearing has been afforded. In such
circumstances, calling the petitioner for personal hearing would
amount to a mere formality.
(c)
As the impugned order dated 07-01-2011 has been passed in violation
of the principles of natural justice, the same cannot be sustained.
It is, therefore, quashed and set aside. As a result thereof, the
consequential order dated 04-03-2011 (and any other such order)
directing recovery of salary would also, not stand. The petitioner
shall now appear before the Committee to be constituted by the State
Government, at the time, and on the date, as
shall be intimated by respondent No.4 on behalf of the Committee. All
communications addressed to the petitioner shall be by Registered
Post, at the addresses to be supplied by Mr. Saurabh Mehta, learned
advocate who is appearing with the learned Senior Advocate for the
petitioner, to the learned Assistant Government Pleader and learned
advocate for respondents Nos.3 and 4, within a period of one week
from today.
(d) Insofar
as individuals, other than the petitioner are concerned, the
communications would be sent at the addresses mentioned in their
applications,as submitted by the learned Assistant Government
Pleader.
(e) The
Committee, constituted in this regard, shall complete the inquiry,
preferably, within a period of three months from the date of receipt
of a copy of this order. As stated by the learned Assistant
Government Pleader, these 84 posts of Vidya Sahayaks in District
Jamnagar shall be kept vacant till the conclusion of the proceedings
of the Committee. In case the order passed by the Committee is
adverse to the petitioner, the same shall not take effect for a
period of thirty days from the date of communication of the said
order.
10. The
petition is partly-allowed, to the above extent. Rule is made
absolute, accordingly. There shall be no orders as to costs.
(Smt.Abhilasha Kumari,J)
arg
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