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LPA/500/2008 4/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 500 of 2008
In
CIVIL
APPLICATION No. 3699 of 2008
In
SPECIAL
CIVIL APPLICATION No. 28312 of 2007
=========================================================
CHAIRMAN
& MANAGING DIRECTOR BHARAT SANCHAR NIGAM LIMITED & 2 -
Appellant(s)
Versus
VINODCHANDRA
MANCHHARAM TAILOR - Respondent(s)
=========================================================
Appearance
:
MR
US BRAHMBHATT for
Appellants
MR GIRISH K PATEL for
Respondent
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M. DOSHIT
and
HONOURABLE
MR.JUSTICE K.M. THAKER 12th November, 2008
ORAL
ORDER
(Per
: HONOURABLE MS. JUSTICE R.M.DOSHIT)
This
Appeal came up before us for hearing on 30th April, 2008.
The subject matter was recovery of a sum of Rs. 2,39,751/= [the
amount of salary paid in excess] from the respondent-Vinodchandra
Manchharam Tailor, an employee of the appellant-Bharat Sanchar Nigam
Limited [hereinafter referred to as, the Nigam ].
By
Order dated 30th April, 2008, we had disposed of the
Appeal by issuing directions to the effect that, ..the
respondent shall, within one month from today, furnish security for
the sum of Rs. 2,39,751/= to the satisfaction of the Registrar
General of this Court. Within one month from today, the respondent
will give undertaking to this Court to refund the aforesaid sum of
Rs. 2,39,751/= to the Nigam within the time specified by the Court in
the event the respondent loses in the writ petition.
In compliance with the aforesaid direction, the respondent
has given undertaking to this Court, as directed, on 27th
May, 2008. In compliance with the direction to furnish security for
the sum of Rs. 2,39,751/=, the respondent has produced affidavit of
one Maganbhai Govanbhai Patel to the effect that he owns and
possesses House No. 1296 situated at village-Panchvati, taluka
district Navsari. The said house is offered by him for solvency
certificate and that he would not sell, transfer or mortgage the said
property until the decision in Special Civil Application No.
28312/2007. The solvency certificate dated 19th May, 2008
issued by Talati-cum-Mantri of village-Chapra, Taluka-Navsari in
favour of the aforesaid Maganbhai Govanbhai Patel is also produced on
the record. It may be noted that the said Maganbhai Govanbhai Patel
is also an employee of the Nigam; against him also, a recovery in the
sum of Rs. 2,21,139/= is ordered; he is the petitioner in pending
Special Civil Application No. 28310 of 2007 and the respondent in
Letters Patent Appeal No. 501 of 2008. By a similar order dated 30th
April, 2008 made by us on Letters Patent Appeal No.501 of 2008; he
too has been directed to give security in the sum of Rs. 2,21,139/=.
Though he claims to own the aforesaid House No. 1296, he has not
furnished security as directed. Instead, has produced solvency
certificate issued in favour of a third person.
Though
the direction was issued to the Registrar General to record his
satisfaction, the matter was put up before the Registrar [Judicial].
It seems that the Registrar [Judicial] was unable to decide
whether the undertaking and the affidavit filed by the respondent
could be accepted as security in compliance with the direction issued
on 30th April, 2008. In the circumstances, by order dated
11th September, 2008, he referred the matter to us.
Thereupon, on 15th October, 2008, we had issued direction
to the Registrar General to explain why he did not carry out the
order of the Court.
Today,
the matter has been kept before us with the report of the Registrar
General. It is stated that the registry had not placed the
matter before the Registrar General. Now, when the matter has been
placed before the Registrar General, he has accepted the aforesaid
undertaking, affidavit and the solvency certificate as security
in terms of the above referred Order dated 30th April,
2008.
We
are at loss. A mere undertaking filed by the respondent and the
affidavit of a stranger and the solvency certificate issued in
respect of the said stranger have been accepted by the Registrar
General as security for the aforesaid sum of Rs. 2,39,751/=. We
understand that the security has to be tangible. So far as the
respondent is concerned, he has offered nothing neither a
security nor a surety – except an undertaking. The solvency
certificate issued in favour of the stranger does not secure recovery
of the aforesaid sum of Rs. 2,39,751/=.
In
the aforesaid circumstances, we believe that the respondent is not
willing to give security as directed. We, therefore, recall the
Order dated 30th April, 2008 made by us on above Letters
Patent Appeal.
Letters
Patent Appeal No. 500 of 2008 and the Civil Application No. 5263 of
2008 be placed before us on 21st November, 2008.
Before
we conclude we cannot but express our concern about the manner in
which the direction given by the Court are being carried out. By our
Order dated 30th April, 2008, we had directed the
respondent, inter alia, to furnish security in the sum of Rs.
2,39,751/= to the satisfaction of the Registrar General of this
Court. The matter was attended to not by the Registrar General but by
the Registrar [Judicial]. The direction involved a judicial
function. The matter could not have been left to any other officer.
The Registrar [Judicial], as recorded in our Order dated 15th
October, 2008, referred the matter back to the Court; when we again
gave the direction by our Order dated 15th October, 2008,
the Registrar General recorded his satisfaction about the security
offered by the respondent on the strength of an affidavit and a
solvency certificate issued by a revenue officer in respect of a
third party. In our view, neither an affidavit nor a solvency
certificate in respect of a third party, or for that matter even in
respect of the concerned party himself, can afford any security. A
solvency certificate given by a revenue officer is only that
authority’s assessment of the financial status of a person. An
affidavit is of even lesser value. Security must be a tangible asset
or at least a guarantee which can be easily realized, if required. By
acceptance of the affidavit and the solvency certificate by the
Registrar General, the very purpose of the Court’s order is
frustrated.
We
are at pain to note that the Registrar [Judicial] Shri G.K
Upadhyay, one of the senior judicial officers in the State could not
decide the matter himself and referred the matter back to the Court.
We are at greater pain to note that the Registrar General Shri P.P
Bhatt, one of the senior most officers in the higher judiciary in the
State, has accepted the affidavit and the solvency certificate in
respect of a third party as a security in very casual
and perfunctory manner; without understanding the purpose of the
Court’s order or without understanding what the word security
connotes.
We
are also of the opinion that this matter is required to be brought to
the notice of the Hon’ble Chief Justice. We, therefore, direct
that a copy of this order be placed before the Hon’ble Chief Justice
for His Lordship’s information. A copy of this order will also
be placed in the service record of the Registrar General Shri P.P
Bhatt.
{Miss
R.M Doshit, J.}
{K.M
Thaker, J.}
Prakash*
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