Gujarat High Court
Hiralal L Patel vs Snehalben Bharatbhai Patel & on 3 July, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
HIRALAL L PATEL....Appellant(s)V/SSNEHALBEN BHARATBHAI PATEL C/LPA/781/2013 CAV JUDGEMNT
LPA7812013Cj3.doc IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO.
781 of 2013 In SPECIAL CIVIL APPLICATION NO. 888 of 2013 With CIVIL APPLICATION NO. 5849 of 2013 In LETTERS PATENT APPEAL NO.
781 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 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 ?
========================================================= HIRALAL L PATEL Versus SNEHALBEN BHARATBHAI PATEL & OTHERS ========================================================= Appearance:
MR BA SURTI, ADVOCATE for the Appellant.
MR DIPAK R DAVE, ADVOCATE for the Respondent No. 1 MR DHAVAL G NANAVATI, ADVOCATE for the Respondent No. 2 MS SHRUTI PATHAK, ASST. GOVT. PLEADER for the Respondent No. 3 ========================================================= CORAM:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 03/07/2013 CAV JUDGEMNT (PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. This Letters Patent Appeal is at the instance of the respondent No.2, a private respondent, in Special Civil Application No. 888 of 2013 and is directed against an order dated 3rd May 2013 passed by a learned Single Judge of this Court by which His Lordship, while issuing a Rule on such application, passed an interim order directing the respondent No.1-Municipal Corporation and/or the Standing Committee or any other officer/authority of the respondent-Corporation not to take any final decision on the report of the Inquiry Officer whereby the Inquiry Officer has exonerated the respondent No.2 from all charges. The learned Single Judge further directed that any decision with regard to the report of the Inquiry Officer and/or any other order i.e. order other than the one which is presently under operation as regards suspension of the respondent No.2 may not be taken without intimation to and permission by the Court.
2. Being dissatisfied, the respondent No.2, the suspended employee, has come up with the present appeal.
3. As Mr. Surti, the learned advocate appearing on behalf of the appellant, took a preliminary objection as to the maintainability of the writ-application before the employer has taken any decision on the report of the Inquiry Officer and justifiability of passing of an interim order restraining the employer from taking any decision in such a writ-application, we have decided to hear out the said preliminary objection along with the merits of the present appeal.
4. The facts leading to the filing of the above Special Civil Application may be summed up thus:
4.1 The writ-applicant served as an ad hoc Clerk in the year 2007 with Surat Municipal Corporation, the respondent No.1. The respondent No.2 was holding a key post of Secretary in the respondent No.1 Municipal Corporation. According to the petitioner, due to harassment of the respondent No.2, who is the appellant before us, she was compelled to leave the job of the respondent No.1, Corporation and due to unrelenting harassment of the respondent No.2, even the matrimonial life of the writ-applicant was put in jeopardy and she has suffered a lot.
4.2 The writ-applicant has filed a criminal complaint against the respondent No.2 under sections 294(A), 509 and 507 of the Indian Penal Code with the Mahila Police Station, Surat City on 22nd June 2010 and after investigation, as the police authorities have found a prima facie case, the charge sheet has been filed against the respondent No.2 and the case is pending for hearing before the competent criminal Court.
4.3 According to the writ-applicant, the respondent No.2 is of abnormal/pervert mind and he had harassed her, although she is of the age equal to that of the daughter of the respondent No.2. The petitioner complained that several text messages were sent to the petitioner by the respondent No.2 from his official mobile phone and he had even threatened and blackmailed the petitioner. The respondent No.2 had also tried to harass the family members of the writ-applicant who were serving with the respondent No.1, Municipal Corporation and attempted to see that departmental proceedings are initiated against such family members of the petitioner though they were not in fault.
4.4 Because of serious complaint made by the petitioner through her mother against the respondent No.2, a departmental inquiry was initiated against the respondent No.2. Pursuant to the written complaint dated 29th June 2010 given by the mother of the petitioner, the committee constituted by the respondent No.1 to enquire in to the harassment-complaint made by women investigated the entire case, and after taking statements of several persons, recommended that necessary step should be taken against the respondent No.2.
4.5 After the said report was given by the Women (Prevention of Harassment) Committee, the respondent No.1, Corporation, suspended the respondent No.2 from service by order dated 2nd September 2011 and thereafter, the departmental inquiry has been proceeded against the respondent No.2. It appears that the respondent No.1 Corporation appointed a retired District Judge as Inquiry Officer, who, after holding inquiry, has given a report exonerating the respondent No.2 of the charges of harassment. It further appears that such report has been placed before the Commissioner of the respondent No.1, Municipal Corporation who has ordered to place the same before the Standing Committee for taking appropriate decision.
4.6 When the departmental proceeding was at the stage for consideration of the report of the Inquiry Officer by the Standing Committee, the writ-applicant has approached this Court by filing the writ-application praying for the following reliefs:-
8. For the reasons stated herein above and such other as may be advanced at the time of hearing of this petition, the petitioner above named most respectfully prays that:-
(A). A writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction be issued:
to ensure that proper departmental inquiry be held against respondent No.2 in the complaint made by sister [sic.,mother ] of the petitioner for the harassment caused to the petitioner by respondent No.2;
to direct the respondent No.1 to ensure that proper action shall be taken against respondent No.2 looking to the seriousness of charges levelled against respondent No.2;
to direct the respondent No.1 to ensure that employee facing with charges of molestation and offence against woman of such nature appropriate strict action be taken and inquiry should be held by the competent woman inquiry officer;
to direct the respondent No.1 to submit status report with regard to departmental proceedings taken against respondent No.2 and the action taken by the respondent No.1 to ensure justice to the petitioner in the matter;
(B). Pending the admission, hearing and final hearing of the petition, this Hon ble Court may be pleased to direct the respondent No.1 to place on record action taken by the respondent No.1 against the respondent No.2 in the departmental proceedings initiated against him;
(C). Any other and further relief or reliefs to which this Hon ble Court deemed fit, in the interest of justice, may kindly be granted.
4.7 As pointed out earlier, the learned Single Judge issued a Rule in such writ-application, and at the same time, passed the following interim order:
By way of interim relief it is directed that the respondent no.1 and/or the Standing Committee of respondent No.1 or any other officer-authority of respondent Corporation may not take any final decision on the report of the Inquiry Officer whereby the Inquiry Officer has exonerated the respondent No.2 from all charges. Any decision with regard to the said report of the Inquiry Officer and/or any other order i.e. order other than the one which is presently under operation as regards suspension of respondent No.2 may not be taken without intimation to and permission by the Court.
Learned counsel for respondent No.1 has informed the Court that the report is still under consideration before the Standing Committee and the Standing Committee has sought legal opinion and that the respondent No.2 is under suspension.
In view of the said statement by learned counsel for respondent No.1 that the above direction by way of interim relief has been passed.
5. As stated above, being dissatisfied, the respondent No.2, the suspended employee, has come up with the present appeal.
6. At the very outset, Mr. Surti, the learned advocate appearing for the appellant, has strenuously contended before us that the Special Civil Application under Article 226 of the Constitution of India was not maintainable inasmuch as at the stage of consideration of the Inquiry Report by the Standing Committee, when no final decision has been taken, the learned Single Judge should not have entertained the writ-application. According to Mr. Surti, the report submitted by the Inquiry Officer may not be approved by the Standing Committee and, at the same time, even if it is approved and consequent decision is taken by the Standing Committee, there is a remedy of filing a departmental appeal against such order of acquittal, and even against the order of the appellate authority, the aggrieved person can come up before this Court under Article 226 of the Constitution of India, but at this stage, when the inquiry has been conducted by the Inquiry Officer, who is a retired District Judge and when no allegation was made against the said retired District Judge disputing his competency to inquire into the allegations, after the report is submitted by such Inquiry Officer, the writ-applicant could not come up with the writ-application. Moreover, it is contended that the writ-applicant is not even in the service of the respondent-Corporation and the complaint was lodged by the mother of the writ-applicant. Therefore, even in the absence of any locus standi of the writ-applicant, the same should not have been entertained by the learned Single Judge. It is therefore contended that the learned Single Judge should not have entertained the writ-application and at the same time, should not have passed an interim order not to consider the legality of the report of the Inquiry Officer or the question of revocation of the suspension at this stage of the proceedings as the same is not necessary for effective disposal of the writ-application on merits.
7. Mr. Dave, the learned advocate appearing on behalf of the writ-applicant, one of the respondents in this appeal, has, on the other hand, supported the order impugned and has contended that in view of serious allegations and the perverted report of the Inquiry Officer whereby the Inquiry Officer has exonerated the respondent No.2-appellant from all charges, the learned Single Judge has rightly entertained the writ-application and passed the interim order inasmuch as it was apparent that the appellant being an influential person, the Standing Committee would accept the report of the Inquiry Officer. He, therefore, prays for dismissal of the appeal.
8. Mr. Nanavati, the learned advocate appearing for the Municipal Corporation has, on the other hand, submitted that the employer is impartial in the matter of investigation and for that reason, the moment the allegations were found to be prima facie true, it decided to hold an inquiry by a retired District Judge. The learned advocate submits that the Municipal Corporation will take appropriate decision in the matter in accordance with law.
9. Therefore, the preliminary question that arises for consideration in this appeal is whether in the facts of the present case, the learned Single Judge was justified in not only entertaining the writ-application but also passing the interim order restraining the employer from taking any decision on the report of the Inquiry Officer.
10. After hearing the learned counsel for the parties and after taking into consideration the well-settled law relating to entertainment of a writ-application before a final decision is taken in a departmental proceeding, we find that a writ-application under Article 226 of the Constitution of India can be entertained by a High Court if it appears that by the action or inaction of a State within the meaning of Article 12 of the Constitution of India, any of the legal or fundamental rights of any person has been infringed. In the case before us, it appears that on a complaint lodged by the mother of the writ-applicant, who is an employee of the Corporation, on the basis of a preliminary enquiry, the appellant having been found to be prima facie guilty, a regular departmental proceedings was initiated and a retired District Judge of this State was appointed as Inquiry Officer. At that stage, neither the complainant nor the writ-applicant raised any objection in the matter of appointment of the Inquiry Officer and on the contrary, every one participated in the proceedings without any objection. It appears from the record that the said Inquiry Officer has exonerated the appellant of all the charges and the report has been placed before the Standing Committee of the respondent Municipal Corporation for consideration.
11. Law is equally settled that the disciplinary authority is not bound by the report of the Inquiry Officer and it may dissent from the view taken by the Inquiry Officer and take appropriate decision in that regard after complying with the procedure prescribed. On the basis of the report submitted by the Inquiry Officer, the disciplinary authority has not yet taken any decision, and at this stage, the writ-applicant has come up with the writ-application challenging the report and apprehending that the same may be accepted by the disciplinary authority.
12. We find substance in the contention of Mr. Surti, the learned advocate appearing for the appellant, that by mere submission of a report by the Inquiry Officer which is yet to be considered by the disciplinary authority, no legal or fundamental right of the complainant or the writ-applicant who is at present not even an employee of the respondent Municipal Corporation has been affected in any way. Therefore, the learned Single Judge should not have entertained such writ-application as the same was a premature one.
13. In this connection, we may profitably refer to the decision of the Supreme Court in the case of Chanan Singh vs. Registrar Co-operative Societies, Punjab, reported in AIR 1976 SC 1821 where the Apex Court made the following observations in paragraphs 4 and 5 of the judgment:
4. The first point raised in objection by the second respondent is that the writ petition is premature since no action has been taken finally against the appellant, the disciplinary proceedings are still pending and the explanation of the appellant is under consideration. It is only in the event of the appellant being punished that any grievance can arise for him to be agitated in the proper forum.
5. Other obstacles in the way of granting the appellant relief were also urged before the High Court and before us, but we are not inclined to investigate them for the short reason that the writ petition was in any case premature. No punitive action has yet been taken. It is difficult to state, apart from speculation, what the outcome of the proceedings will be. In case the appellant is punished, it is certainly open to him either to file an appeal as provided in the relevant rules or to take other action that he may be advised to resort to. It is not for us, at the moment, to consider whether a writ petition will lie or whether an industrial dispute should be raised or whether an appeal to the competent authority under the rules is the proper remedy, although these are issues which merit serious consideration.
14. The above principles are equally applicable to a case, where the report of the Inquiry Authority exonerating the delinquent of the charge is pending before the disciplinary committee for consideration. It appears that the above principle laid down in the case of Chanan Singh [supra] has been reiterated by the Supreme Court in the following subsequent cases:
1. Kunda S. Kadam v. K.K. Soman reported in AIR 1980 SC 881.
2. Ulagappa v. Divn. Commr., Mysore reported in AIR 2000 SC 3603(2).
3. Union of India v. Kunisetty Satyanarayana reported in AIR 2007 SC 906.
15. Once we hold that the said writ-application was a premature one, it necessarily follows that there was no justification of even passing an order not to revoke the suspension of the appellant during the pendency of the proceedings. It is within the exclusive domain of the employer to consider whether during the pendency of the proceedings it will keep its employee under suspension and go on paying subsistence allowance without taking any work from him. It appears that the appellant is under suspension from the year 2011 and the employer has, during the pendency of the proceedings, decided to keep him under suspension. At this stage, therefore, there was no justification of entertaining the writ-application and passing the interim order when the report is yet to be considered by the disciplinary Committee. It is needless to mention here that the purpose of granting interim order in the course of a judicial proceeding is to see that in the absence of such interim order, the ultimate relief claimed by the applicant may not become infructuous. Even if the order of suspension is revoked by the employer, for that reason, the writ-application in question, even if it was found to be maintainable, could not become infructuous as the High Court can pass appropriate order even at the time of delivering the final judgment.
16. We, thus, find that in the facts of the present case, the learned Single Judge should not have even entertained the writ-application and consequently, should not have passed any interim order restraining the employer from revoking the order of suspension based on the report of the Inquiry Officer which is yet to be considered by the disciplinary committee.
17. For the above reasons, we allow this appeal and dismiss the writ-application as the same is a premature one. Rule issued in the writ-application is discharged.
17.1 We, however, make it clear that we have otherwise not gone into the merits of the allegations levelled against the appellant and it is for the employer to take appropriate decision in accordance with law for consideration of the question of acceptance or otherwise of the report of the Inquiry Officer after taking into consideration the entire evidence given by the parties in the departmental proceedings. We further make it clear that while taking such decision, the employer will not be influenced by the fact that we have dismissed the writ-application because we have dismissed the same not on merits but on the ground that it was a premature one.
17.2 With the above observations, the appeal is allowed.
17.3 In view of the above order passed in the main appeal, the Civil Application does not survive and it stands dismissed accordingly.
17.4 In the facts of the case, there will be, however, no order as to costs in all the above matters.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) mathew Page 15 of 15