Gujarat High Court
Dilipbhai vs State on 26 May, 2008
Author: K.M.Thaker
Bench: K.M.Thaker
SCA/7842/2008 32/ 32 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7842 of 2008 With SPECIAL CIVIL APPLICATION No. 7844 of 2008 With CIVIL APPLICATION No. 6443 of 2008 In SPECIAL CIVIL APPLICATION No. 7843 of 2008 With CIVIL APPLICATION No. 6444 of 2008 In SPECIAL CIVIL APPLICATION No. 7844 of 2008 With CIVIL APPLICATION No. 6445 of 2008 In SPECIAL CIVIL APPLICATION No. 7842 of 2008 ========================================================= DILIPBHAI NANJIBHAI PATEL & 1 - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR VIMAL M PATEL for Petitioner(s) : 1 - 2. GOVERNMENT PLEADER for Respondent(s) : 1, DS AFF.NOT FILED (N) for Respondent(s) : 1 - 2. NOTICE SERVED BY DS for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 26-27/05/2008 ORAL ORDER
1. These petitions arise from common order dated 16.5.2008 passed by Gujarat State Cooperative Tribunal in group of appeals which were preferred against order dated 28.6.2004 passed by respondent No.2. The said order dated 28.6.2004 and dated 16.5.2008 are under challenge in this petition.
2. After hearing the petitioner, notice was issued on 19.5.2008, which was made returnable on 23.5.2008. Mr. P.K. Jani, learned counsel has appeared for Mr. Vimal Patel, learned advocate for the two petitioners in Special Civil Application No.7842 of 2008. Mr. Sumit Shah, learned Government Pleader has appeared for respondent No.1 and
2. Mr. K. G. Vakharia, learned Senior Counsel has appeared with Mr. Tushar Mehta learned advocate for respondent No.3. On 23.5.2008, the parties were heard at length and to enable the petitioners to submit amendment, the hearing was adjourned to today i.e. 26.5.2008.
3 Today, draft amendment has been submitted by Mr. P.K. Jani, learned advocate. Amendment is granted. The petitioners are directed to carry out the amendment within one week.
4. The facts, relevant for present purpose, are follows:-
4.1 The petitioners were directors of respondent No.3 bank and the petitioner No.1, at relevant point of time, was Chairman of respondent No.3 bank. The respondent No.3 is a society, registered under the provisions of the Gujarat Co-operative Societies Act, 1961 (hereafter referred to as ýSThe Actýý) and engaged in Banking activities.
4.2 It is the case of the petitioners that a Resolution dated 24.6.1996 came to be passed in the meeting of Executive Committee resolving to invest certain amount in a Company named ýSC.R.B. Capital Marketing Ltd.ýý (herein referred as C.R.B. Ltd.). The petitioners claim that the said resolution was also approved by the Board of Directors in the meeting held on 20.7.1996. In light of the said Resolution, an amount of Rs.4 Crores came to be invested in said C.R.B. Ltd. The decision and resolution to invest in the C.R.B. Ltd. was one of the issues in the proceedings from which present petitions arise.
4.3 The petitioners claim that towards the said investment, the said C.R.B. Ltd. had issued post dated cheques which, on the date of maturity, were not fully honoured inasmuch as, amount of about Rs.3 crore could not be recovered. For the purpose of recovering the amount, a suit was filed and the Civil Court was pleased to pass a decree (ex parte) in favour of respondent No.3 bank, and proceedings under Section 138 of the Negotiable Instruments Act were also initiated. It is, however, relevant to record that the said C.R.B. Ltd is undergoing liquidation proceedings. In short, the petitioners claim that they had taken steps for recovery of the said amount.
4.4 It appears that during the statutory audit for the period from 01.04.1996 to 31.03.1997 and 01.04.1997 to 31.03.1998, certain irregularities, including the aforesaid action of investment in C.R.B. Ltd., were brought out. In addition to the said irregularity, the irregularities mentioned by the auditors in the report also include unjustified and unauthorised expenses towards a tour to foreign country, payment of higher or excessive sitting fees etc. 4.5 The crux of the report is that acts of omission or commission amounting to breach of provisions under the Act e.g. S. 71 and/or the Rules framed thereunder, were committed by the erstwhile directors which include the petitioners.
4.6 The said action of investing in C.R.B. Ltd., has put the respondent No.3 ý Bank to bear loss of about Rs. 3 Crores and also loss of interest on the said amount.
4.7 In light of the said facts and circumstances, a notice dated 11.10.1999 was issued calling upon the petitioners to show cause as to why action under Section 93 should not be taken.
4.8 About 7 different charges, one of which was regarding said investment, were mentioned in the said notice, out of which some were qua all the noticee directors, while some were qua certain directors only.
4.9 It comes out from the record that subsequently respondent No.2 was appointed as an Inquiry Officer, who after completing an inquiry, wherein present petitioners were afforded opportunity of hearing, passed an order dated 28.6.2004 holding, inter alia, the petitioners and other directors guilty as regards the charges mentioned against the respective names. Against said order of the inquiry officer, the petitioners of Special Civil Application No.7842 of 2008 preferred an appeal being Appeal No.595 of 2004 before the learned Tribunal. The other Directors also preferred appeals. During pendency of the said appeal before the learned Tribunal, writ petitions, being Special Civil Application No.15859 of 2004, Special Civil Application No.15862 of 2004 and Special Civil Application 15863 of 2004, were preferred in the High Court wherein the Hon'ble Division Bench passed order dated 16.3.2006 wherein it was, inter alia observed that:
ýS12. These petitions are accordingly partly allowed in so far as the Tribunal did not grant any interim stay against any disqualification proceedings arising from the liability under Section 93 of the Act. During pendency of the appeals before the Tribunal, there shall be stay against disqualification arising from the liability under Section 93 of the Act, provided the respective petitioners deposit, without prejudice to their rights and contentions, the amounts as stipulated in the interim stay orders passed by the Tribunal. As far as the amounts stipulated by the Tribunal in the said conditional stay orders are concerned, we do not interfere with the said conditions but grant the petitioners time to deposit the amounts as stipulated in the interim stay orders of the Tribunal in six equal monthly installments commencing from 10th April 2006. The Tribunal shall endeavour to complete the hearing and decide the appeals by 31st December 2006.
(emphasis supplied) Rule is accordingly made absolute only to the aforesaid extent with no order as to costs.ýý 4.10 Subsequently, another petition being Special Civil Application No.940 of 2005 also came to be filed in this Court, during the pendency of the aforesaid appeals. It is submitted by Mr. Jani, learned advocate that the said petition was filed by the petitioners herein. In the said petition, this Court was pleased to pass an order dated 29.6.2006, wherein also it was inter alia observed that :
ýS2. ... As far as the amounts stipulated by the learned Tribunal in the said conditional stay orders are concerned, the same is not stayed but the petitioners shall deposit the amounts as stipulated in the interim stay orders of the learned Tribunal in six equal monthly installments commencing from 10.04.2006. The learned Tribunal shall endeavour to complete the hearing and decide the appeals by 31.12.2006. After the amount is deposited, the learned Tribunal shall decide the matter as early as possible or by 31.12.2006 whichever is earlier and thereafter, either side may move the Court for final hearing.ýý (emphasis supplied) 4.11 As can be seen, this Court by order dated 29.6.2006 had requested the learned Tribunal to hear and decide the appeal on or before 31.12.2006. In the aforesaid order dated 16.3.2006, also, similar request (i.e. to decide the appeals order before 31.12.2006) was made by this Court.
4.12 The petitioners have come out with a case that during the proceedings of the said appeals, one of the learned Members of the learned Tribunal i.e. Mr. V.C. Joshi expressed that it would not be proper for him to proceed with the hearing of the said appeal unless the parties concerned in the proceedings file a pursis expressly giving ýSNo Objectionýý.
4.13 The said learned Member Mr. V.C. Joshi awaited ýSNo Objectionýý for sometime, however even after almost seven months, such ýSNo Objectionýý was not put on record. Under the circumstances, said learned Member Mr. V.C. Joshi placed his note dated 10.8.2007 before the President expressing his inability and stating that in the facts and circumstances, the appeals may be heard by Bench comprising any other Member.
4.14.
The petitioners and respondents have given out that subsequently when the said learned member Mr. V.C. Joshi was on leave, Mr. K.J. Joshi took the charge as In-charge Member sometime in April, 2008. According to the petitioners, around that time, in connection with the subject appeals an application being Exh.52 came to be submitted on 21.4.2008 by third party. The petitioners claim that the said application Exhibit 52, was initially adjourned to 5.5.2008 for enabling the parties to file their respective replies and then it was adjourned to 17.5.2008. The petitioners also claim that in the meanwhile, on 13.5.2008, an application with reference to the subject appeals was submitted by the said third party and then on 15.5.2008 on behalf of the petitioners, also an application Exh.56 was submitted. In this background, the learned Tribunal comprising Mr. V.R. Jadav, President and Mr. K.J.Joshi, after hearing the parties on 15.5.2008, passed an order.
4.15 It is pertinent that in the said order dated 15.5.2008, Tribunal has recorded that the advocates representing the appellants ý petitioners were asked to make further oral arguments in the appeals and that the learned Tribunal proposed to pass order on 16.5.2008, however, the advocates declined to make submission on 15.5.2008.
4.16 The petitioners claim that the Tribunal then proceeded further in the appeals and passed common final order dated 16.5.2008 in the aforesaid group of appeals.
4.17 The learned Tribunal by virtue of the said order, has held that there was no justification for interfering with the order dated 28.6.2004. The learned Tribunal confirmed the said order dated 28.6.2004 and rejected the said group of appeals. Present petitions are against the said orders dated 28.6.2004 and 16.5.2008.
5. I have heard the learned advocates for the respective parties at length on 23.5.2008 and today i.e. 26.5.2008.
6. Though the petitioners have narrated and raised diverse grounds in the petition against the said order dated 16.5.2008 during the hearing, it is assailed on the ground of violation of principles of natural justice or arbitrariness and procedural irregularities. Further, no submission as regard the order dtd. 28.6.2004 have been urged and at this stage no attempt to assail the same on merits, is made.
7. It is required to be noted that the matter is heard at length during vacation since the petitioners' immediate concern is interim relief, Mr. Jani, for the petitioners has, at this stage, concentrated his submissions on the ground of procedural irregularities and violation of principles of Natural Justice.
7.1. Mr. Jani, learned advocate for the petitioners, submitted that the principle of natural justice have been thrown to winds and there is gross violation of audi alterem partem rule which is clear from the way in which the impugned order dated 16.5.2008 came to be passed. He further submitted that on an application by third party, the proceedings in respect of the appeal were suddenly taken up and without hearing the appellants, i.e. the petitioners herein, the impugned order came to be passed in hot haste on the last day before the date on which summer vacation was to start. Mr. Jani submitted that the appellants have not been heard by the Bench comprising Mr. V.R. Jadav, President and Mr. K.J. Joshi, Member. He, in this regard, referred to the averments made in para 19(E) and 19(F) of the petition memo. He also urged that in case of other two Banks, Viz. Mehsana Jilla Madhyasth Sahakari Bank Limited and Kheralu Nagrik Sahkari Bank Limited, though the investments were made in said CRB Limited by the said two Banks also, the Directors of the said banks have not been held responsible as per the order passed by the Inquiry Officers, under Section 93 of the Act. Mr. Jani also submitted that the petitioners have been made to suffer due to and out of political rivalry. Mr. Jani also referred to the dates of applications being Exh.52, 55, and 56 and dates of the orders, so as to drive home the contention of arbitrariness and undue haste on the part of the learned Tribunal. Lastly, Mr. Jani submitted that pending the petition, the petitioners may be permitted to contest the election.
7.2 On the other hand, Mr.Sunit Shah, learned Government Pleader, defended the order dated 16.5.2008 and wished away Mr. Jani's submission s about arbitrariness or illegality on the part of the learned Tribunal as without merits. He emphasized that on behalf of the petitioners, no submission as regard merits or demerit of the conclusion and findings recorded by the learned Tribunal, have been raised. Mr. Shah took pains to deal with Mr. Jani's submissions regarding the alleged procedural irregularities and submitted that in respect of the allegation about what transpired before the learned Tribunal, the petitioners should first approach the learned Tribunal, if at all they have any grievance about factual aspects recorded in the order dated 15.5.2008. Mr. Shah submitted that the only course open to the petitioners in this regard was to go before the learned Tribunal by way of appropriate application and to get order on such application. In support of the said submission, Mr. Shah relied upon the judgments in the case of Central Bank of India Vs. Varjlal Kapurchand Gandhi and Another reported in (2003)6 SCC 573, in the case of Roop Kumar V. Mohan Thendani reported in (2003)6 SCC 595, in the case of Commissioner of Customs, Mumbai Vs. Bureau Veritas And Others reported in (2005)3 SCC 265 and in the case of Guruvayoor Devaswom Managing Committee and Another Vs. C.K. Rajan and Others reported in (2003)7 SCC 546. Mr. Shah also submitted that the erstwhile Directors, including the petitioners, had acted in disregard towards the provisions under the Act and, therefore, consequences prescribed by the Statute for such breach must follow. As regards the petitioners' request to permit them to contest the election, subject to the result of the petition and as an interim relief, Mr. Shah, while opposing the said request, submitted that such request is beyond the scope of the petition, such a relief has not been prayed for, and that in the facts of present case such relief ought not be granted.
7.3 Mr. Vakharia, learned senior counsel, submitted that the decision and action of the erstwhile Directors, including the petitioners, was in total disregard to the provisions under the Act and, therefore, such action must be visited with the consequences prescribed by law. In support of his said submission, Mr. Vakharia relied upon the judgment in the case of Ishwarbhai Narottambhai Patel Vs. K.H. Trivedi & Ors. reported in 2003(1) GLR 537. He further submitted that neither the order dated 28.6.2004 passed by the Inquiry Officer nor the order dated 16.5.2008 passed by the learned Tribunal suffer from any error of law apparent on the face of record. Mr. Vakharia also submitted that on behalf of the petitioners, written arguments were filed on record before the learned Tribunal and the same have been duly considered, therefore, there is no substance in the petitioners' arguments urged on the ground of violation of principle of natural justice. In this regard, he further submitted that even otherwise, it is not the case of the petitioners that their written arguments have not been considered. Mr. Vakharia also emphasized that on behalf of the petitioners, no submissions as regards the merits or otherwise of the conclusions recorded in the order of the Inquiry Officers or of the learned Tribunal have been urged and only the contention invoking violation of principle of natural justice is advanced and, therefore, the relief as prayed for, particularly the request for interim arrangement ought not to be granted when no ground much less any substantial ground, against the order, on its merits, is made out. In furtherance of the said submissions, Mr. Vakharia, learned Senior Counsel, invited the Court's attention to the affidavit made in support of the petition and submitted that the allegations made in para 19(E) and 19(F) have not been confirmed to have been made on knowledge or even on information, but are made as submission of law and, therefore, such allegations do not qualify for any consideration. He also submitted that though the allegations with regard to the order dated 15.5.2008 have been made, the said order is not challenged in the petition. He opposed the the prayer by petitioners for interim relief and relied on the judgments reported in AIR 2004 SC 1576 and 2003 (1) GLR 537.
8. The question required to be considered at this stage is about interim relief. In the petition, the petitioners have prayed for interim relief in terms of para 23(B), which reads thus:
B. Pending the hearing and final disposal of the present petition, Your Lordships may be pleased to stay the order dated 16.5.2008 passed by the Gujarat State Cooperative Tribunal in Appeal No.595 of 2004 and other dated 28.6.2004 passed by respondent No.2 and stay against the disqualification arising from the liability u/s.93 of the Gujarat Cooperative Societies Act, 1961.
8.1 The request made by Mr. Jani that the petitioners may be permitted to contest the election is not expressly prayed for in the petition.
The petitioners probably want to take shelter under the prayer for the relief prayed for against the dis-qualification.
8.2 In view of the fact that earlier i.e. when the appeals were not decided and were pending before the learned Tribunal, the disqualification was stayed by order of the Court on condition of payment of certain amounts (since at that time, appeals were not finally heard and decided on merits), it was inquired from Mr. Jani as to whether the petitioners were ready to deposit the entire amount as per the orders dated 28.6.2004 and 16.5.2008, so as to support their request as now the appeals have been finally decided against the petitioners. However, Mr. Jani, replied in negative, but added that the petitioners were ready to deposit only that much amount as was deposited by them earlier, i.e. about Rs.3 lacs, as against the liability of about Rs. 34,84,324 in case of petitioner No.1 and about Rs. 33,56,064 in case of petitioner No.2 (as per Page No.96 of the petition) respectively.
8.3 The target of the petitioners' attack at this stage is the order dated 15.5.2008 passed by the learned Tribunal below Exh.56 and secondly they have attacked the alleged haste with which the order dated 16.5.2008 is claimed to have been passed and it is alleged that due to Exh.52 & Exh.55 applications of third party the hearing of appeals was suddenly activated. So as to make good the said submission, it is submitted that though the hearing of the third party's application was to take place on 17.5.2008, one application of the said third party, came to be entertained on 13.5.2008 and one order dated 15.5.2008 came to be passed and then immediately, on the next day, i.e. 16.5.2008, the impugned order was passed. According to the petitioners, the said events reflect undue haste and procedural irregularities and arbitrariness on part of the learned Tribunal.
8.4. For considering the said allegations, it is relevant and necessary to take into account, the orders dtd. 16.3.2006 and 29.6.2006 passed by this Court and the note dated 10.8.2007 submitted by Mr. V.C. Joshi, Member addressed to the President of Tribunal. By the said order this Court had requested the learned Tribunal to decide the appeals on or before 31.12.2006 and in the said note, said learned Member has recorded the reasons conveyed to the advocates of the concerned party and has also recorded that the concerned advocates were informed on 11.1.2007 that it would not be possible for him (i.e. Mr. V.C.Joshi) to be one of the Members of Bench taking up the said appeal until ýSNo Objectionýý in writing was given by the parties declaring their No Objection if the Bench comprising Mr. V.C. Joshi as one of the Members heard and decided the appeals.
8.6 It is pertinent that even after almost 7 months since the said expression by the learned Tribunal on 11.2007, the appellants i.e. thepetitioners) did not respond and, therefore, on 10.8.2007, said learned Member was constrained to request the President to place subject appeals for hearing by a Bench, wherein he was not one of the Members.
8.7. From the fact that on 11.1.2007, the learned member had inquired from the appellants' advocates about no objection, it becomes clear that the hearing of the appeals was active at that time.
8.8. It is also pertinent that on behalf of the petitioners, written submissions came to be placed on the record of the appeals on 10.8.2007 and 22.8.2007. This factual aspect is an admitted position on the part of the appellants.
8.9.
Thus, during the said period i.e. in August, 2007 also the appeals must be active on the cause list, which enabled the appellants to tender their written submissions on record.
8.10. The appellants have made reference of application dated 13.5.2008 Exhibit
55. A glance at the copy of the said application shows that the concerned advocates of the appellants put their respective remarks on the said applications on 14.5.2008 and on 15.5.2008. Meaning thereby, the appellants' advocates, had knowledge and were aware about the application and its purpose and that they were also present before the learned Tribunal on 15.5.2008. The factum of the knowledge about the said application dated 13.5.2008 on part of the appellants' advocate is also demonstrated from their application (Exhibit 56) dated 15.5.2008, which was given by the advocates of the appellants on 15.5.2008 i.e. present petitioners wherein, reference of the third party's application dated 13.5.2008 is made. Thus, prima facie, it appears that there is no justification on part of the appellants i.e. the petitioners in claiming that they were not aware about the proceedings on 15.5.2008 and that they have not been heard on 15.5.2008.
8.11. Coming to the order dated 15.5.2008, it is noticed that the first para of the said order recites that an application by the appellants' advocate was tendered with a request to differ the hearing of further oral arguments in the subject appeals and the order in the appeal. The Tribunal has also recorded in first para of the said order dated 15.5.2008 that the Tribunal heard the submissions of the advocates in respect of their such request.
8.12. The said recital in first para of the order brings out few aspects e.g. (1) the appellants advocate were present in the Tribunal on 15.5.2008 and had attended the hearing before the Tribunal comprising Mr. V.R. Jadav, President and Mr. K.J. Joshi, Member and (2) a request to not to take up the appeals and/or for making further oral arguments and/or for making the order was made to the learned Tribunal by the appellants and (3) and that the appellants were aware that the appeals were scheduled for further oral arguments and making the order. The said recital also clarifies that the advocates of the appellants were aware that on 16.5.2008, the learned Tribunal was to hear ýSfurther oral argumentsýý and therefore, they requested to differ the same.
8.13.
In light of the peculiar facts and circumstances, the word ýSfurtherýý acquires significance in the present case inasmuch as it signifies that oral arguments to certain extent were heard and it was ýSfurtherýý oral arguments, which were to be heard by the learned Tribunal.
8.14. The petitioners have, in the petition, disputed the said factual aspect recorded in the order. The question which, arise is that if that is so, then why the appellants i.e. the petitioners' advocates did not move an application against the narration of such factual aspect in the order. When, in view of the submission made by Mr. Shah, learned Government Pleader and Mr. Vakhariya, learned Senior Counsel, the said question was put to Mr. Jani, he could not tender any satisfactorily explanation except stating that according to the petitioners, the said narration does not reflect correct factual position.
8.15. It is pertinent that in the said order dated 15.5.2008, the learned Tribunal has clarified as to why the learned Tribunal desired to carry on and conclude the hearing of the appeals and to pass orders. It is pertinent that Mr. V.C. Joshi one of the members, had expressed his inability to be part of the Bench taking up the said appeals. On the other hand, Mr. K.J. Joshi, (who was, since April, 2008, acting as ýSIn-charge member) was to be available only upto 16.5.2008, and that therefore, the further hearing of the appeals would have thereafter become impossible or indefinitely delayed until the learned Tribunal could get another member. Under the circumstances, it prima facie appears that the reasons recorded by the learned Tribunal (which constrained the learned Tribunal to ask the advocates to make further oral arguments) are reasonable and do not justify the allegations of hot haste on part of the learned Tribunal as alleged by the petitioners.
8.16. It is also pertinent that in the said order dated 15.5.2008, the learned Tribunal has categorically recorded that the advocates of the appellants were specifically asked by the Tribunal on15.5.2008 to make their further oral arguments and that when the appellants' advocates were given opportunity on 15.5.2008 to make their further oral arguments, they refused to do so.
8.17.
It is pertinent that even the said recital and observations of the learned Tribunal the last part of last para of the order dated 15.5.2008 are disputed by the petitioners. The petitioners claim that their advocates were not given such an opportunity and they were not asked to make their further oral arguments.
When again asked as to why any application in respect of said recital also was not given on the same day i.e. on 15.5.2008 or even on the next day i.e. 16.5.2008 and why oral submissions were not made at least on next day i.e. on 16.5.2008 Mr. Jani could not render any satisfactorily explanation on this count also, except reiterating that as per appellants, the said recital does not reflect correct fact.
8.18 The fact remains that the petitioners, though dispute the recitals about factual aspect in the said order dated 15.5.2008, have not given any application to the learned Tribunal raising their objections or voicing their reservation against such recital or disputing the said record.
8.19.
It is pertinent that such applications have not been given either on 15.5.2008 or 16.5.2008 or between 16.5.2008 and 21.5.2008, when notice in the subject petition came to be issued. Any such application have not been given even after 21.5.2008 until now and the petitioners have chosen not to approach the learned Tribunal with their objections or with their version of facts against what is recorded in the order dated 15.5.2008. In such situation, this Court would be invariably inclined to believe the record of the learned Tribunal.
8.20. The law in this regard is well settled. In respect of what actually transpired before the learned Tribunal or Court, the concerned litigant must approach, the learned Tribunal or Court with appropriate application instead of approaching higher forum with allegations. The Hon'ble Supreme Court has held, in the case of in the case of Commissioner of Customs, Mumbai Vs. Bureau Veritas And Others reported in (2005)3 SCC 265 that:
ýS If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record. This is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to continue before this Court to the contrary.ýý The Hon'ble Supreme Court has in another case of Central Bank of India Vs. Varjlal Kapurchand Gandhi and Another reported in (2003)6 SCC 573 held that:
ýS The only course open to a party taking the stand that an order does not reflect actual position is to move the High Court in line with what has been said in State of Maharashtra V. Ramdas Shrinivas Nayak. In recent decisions i.e. Bhavnagar University v. Palitana Sugar Mill (P) Ltd. And Roop Kumar V. Mohan Thedani the view in the said case was reiterated. Statements of fact as to what transpired at the hearing recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by an affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party; while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record. This is the only way to have the record corrected. If no such steps is taken, the matter must necessarily end there. It is not open to a party to contend before this Court to the contrary. This Court cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy and judicial decorum do not permit it. Matters of judicial record in that sense are unquestionable. However, the Court can pass appropriate orders if a party moves it contending that the order has not correctly reflected happenings in court.ýý 8.21. The said order dated 15.5.2008 brings on record that though the advocates of the present petitioners i.e. appellants were asked to submit their further oral arguments, they refused to do so. After such refusal, the petitioners are not justified in claiming that they have been deprived of an opportunity of hearing or that the learned Tribunal has acted arbitrarily and that the order has been passed in violation of natural justice or that it suffers from infirmity of procedural irregularities.
8.22. It prima facie appears from the cumulative effect of all the aforesaid facts that the petitioners are not justified in alleging violation of principles of natural justice. If opportunity of hearing, though afforded, is not availed, then it cannot be alleged that principles of natural justice are violated.
8.23. It appears that when the appellants' advocates refused to advance further oral arguments despite having been asked by the Tribunal on 15.5.2008 and when no attempt to advance oral arguments even on 16.5.2008 was also made, the learned Tribunal proceeded to make the order dated 16.5.2008. In view of the facts which flow from the record presently available in this petition, the decision of the learned Tribunal to proceed to make order on 16.5.2008 does not, prima facie, appears to be unjustified and it prima facie appears that the events, after which the order came to be passed, does not make it an order passed in hot haste or does not render it violative of principles of natural justice, as alleged by the petitioners.
8.24. Another peculiar fact involved in the matter as noticed herein above earlier, is that the written submission on behalf of the appellants had been placed on record on 10.8.2007 and 22.8.2007 and the learned Tribunal has taken into consideration said written submission, while passing the impugned order dated 16.5.2008.
8.25.
It is not the case of the petitioners, while assailing the order dated 16.5.2008, that the written submissions have not been taken into account.
8.26. Both Mr. Shah, learned Government Pleader and Mr. Vakharia, learned Senior Counsel repeatedly emphasized that the learned Tribunal has considered written submissions and it is not the case of the petitioner that written submissions are not considered and that therefore, the case of the petitioners based on alleged violation of the principle of natural justice, is without merits. At this stage, and in light of material available on record of present petition, prima facie, the said submissions by respondents appear justified.
8.27. Thus, even if, at this stage and for a moment, consideration is given to the allegations of the petitioners about opportunity of hearing, then also the fact that the appellants had also tendered written submissions and that the same have been duly considered by the learned Tribunal, punctures the allegations of arbitrariness or denial of opportunity of hearing.
When written submissions are tendered and they are duly considered then prima facie the allegations of arbitrariness or denial of the opportunity of hearing would not be sustainable.
8.28.
On an overall view of the matter, it prima facie appears that at this stage that the allegations and submissions on ground of procedural irregularities or violation of principles of natural justice or arbitrariness are not justified or meritorious and the stand of the appellants' advocate of refusing to make further oral arguments on 15-5-2008 despite being asked by the Tribunal, prima facie justifies the learned Tribunal's impression and conclusion recorded in the order dated 15.5.2008.
9. At this stage, this Court is also required to bear in the mind that as of now there are concurrent findings of the fact by the Inquiry Officer and by the learned Tribunal confirming the inquiry officer's order in the appeals.
10. Further, when there is concurrent findings of fact, this Court, in proceedings, which are substantially under Article 227 but where and Article 226 of the Constitution of India is also invoked, would be slow in interfering with the order at interlocutory stage and would be even slower in granting interim relief. More particularly, when interim relief as prayed for, would amount to suspending the effect of the provisions under the Act or staying the operation of provisions under the Act.
10.1. Though submissions on merits or otherwise of the findings and conclusions in the impugned order are not advanced, even if the Court were to go into said aspect of the matter, then also, the scope of this Court's jurisdiction would be restricted as it would call for re-appreciation of evidence and it is not open for this Court to undertake reappreciation of evidence.
10.2. It is appropriate at this stage to refer to the judgment in the case between Jayantibhai Dahyabhai Patel Vs. State of Gujarat & Ors. reported in 2007(2) GLR 1126, wherein this Court has held that :
ýS The High Court is not required to act as an Appellate Court so as to undertake re-appreciation of the evidence on record. The limited scope of intervention that is available to the High Court is where the order of the subordinate Court/Forum is either without jurisdiction or in excess of jurisdiction, or the order suffers from vice of perversity. None of the impugned orders dated 21.3.2006 and 29.11.2006 can be said to be suffering from either want of jurisdiction or excess of jurisdiction vested in the Tribunal, nor is it possible to state that either of the order suffers from vice of perversity. It is equally well settled that merely because the High Court is in a position to record a different finding i.e. different from the one recorded by the Tribunal, on the same set of facts, circumstances and evidence on record, that by itself is not sufficient to vest the High Court with jurisdiction to entertain the petition. Even mere error or law and/or error of fact per se is not sufficient to enable the High Court to exercise the writ jurisdiction. Such an error has to be an error of law which is manifest or apparent on the face of the record. The impugned orders do not suffer from any of such legal infirmities so as to enable this Court to intervene. However, as certain legal issues were raised during the course of hearing, the same may be examined in the backdrop of facts on record, only for the purpose of satisfying the conscience of the Court.ýý (Emphasis Supplied)
11. The petitioners have prayed that they may be permitted to contest the election. In this regard, apart from what is observed herein above earlier, it is relevant to note that to grant such relief, the effect and consequence flowing from S. 71 and Rule 32 read with Section 93 i.e. disqualification, will have to be stayed. It prima facie appears that it would not be justified, at this stage and in facts of present case, to stay or nullify the effect of the provisions under the Act or to pass an order which may have effect of suspending the operation of the provisions under the Act or to stay the consequences which would follow by virtue of operation of provisions under the Act pursuant to the orders wherein concurrent findings against the petitioners are recorded holding the petitioners guilty of violation of provisions under the Act.
11.1. Unless and until the said findings are set aside or said findings are suspended, it would not be proper to stay the effect and consequences which the said findings and order would entail.
11.2. At this stage, it is appropriate to refer the judgment of the Hon'ble Apex Court in the matter between Mehsana District Central Co-operative Bank Ltd. & Ors. V. State of Gujarat & Ors. reported in AIR 2004 SC 1576, wherein the Hon'ble Apex Court has observed: ýSIn the facts and circumstances stated above, the High Court by the impugned order issued a writ of mandamus, directing Respondents 4 and 5 to take appropriate action against the appellants in accordance with the provisions contained in the Gujarat Co-operative Societies Act and the Rules framed thereunder. We do not see any infirmity in the impugned order. The Acts and Rules are made to be followed and not to be violated. When the statute prescribes the norms to be followed, it has to be in that fashion. Converse would be contrary to lawýý. [emphasis supplied].
11.3. Under the circumstances, I am of the view that at this stage, the relief prayed for, in para 20(B) does not deserve to be granted. The petitioners on their own have chosen not to approach the learned Tribunal with appropriate application, in connection with the recitals in the order dated 15.5.2008 and that therefore the petitioners would be required to be heard on the basis of the record. The petitioners are to be heard on merits or otherwise of the impugned orders dated 28.6.2004 and 16.52008. Hence, S.O. to 16.6.2008.
11.4. At this stage, Mr. Amin, learned counsel on behalf of the petitioners requests that the order may be stayed for period of three weeks. In this regard,it is to be recalled that Mr. Jani was asked as to whether the petitioners are ready and willing to deposit the entire amount, as per the orders dated 28.6.2004 and 16.5.2008 and Mr. Jani informed the Court that the petitioners would be ready to deposit about Rs. 3 Lacs but not the entire amount. In that view of the matter and in view of the submissions of Mr. Mehta for respondent No.3 that the election process is already under progress, and if the said relief is granted then the same is likely, as submitted by Mr. Mehta, to disturb the election process which is in progress, it would not be justified for the Court to pass any order at this stage which may delay the said election process and it would not be legal or proper, in light of settled legal position, to pass any order, much less as an interim relief, which may obstruct the election process, which as per respondents is already in motion. This Court would have normally granted the request of staying the order to enable the petitioners to carry it further however there are peculiar facts in present case and the said request is similar to or will have similar effect as the interim relief prayed for in para 23(B). In addition to what is observed hereinabove earlier, it is required to be noted that the request as prayed for, if granted, would amount to staying the effect and operation of law inasmuch as it would amount to staying the disqualification, which is the consequence of the order under S. 93 as confirmed in appeals. Further the petitioners are not even ready to deposit the amounts which has been ascertained/determined by the orders. From the discussion in this order, it follows that it cannot be held that the petitioners have made out a strong prima facie case in their favour, particularly for the interim relief in the nature as prayed for, nor can it be said that the petitioners have been able to establish balance of convenience or irreparable injury. Actually, the petition lacks in specific averments in this regard. On an overall view of the matter and in light of the entire aforesaid discussion and in view of the facts of the case, I am of the view that the aforesaid request as presently made or the interim relief as prayed for do not deserve to be granted. However, so far as the impugned order dated 16.5.2008 which require the petitioners to pay the amount is concerned, the petitioners will have time until the next date of hearing and further orders.
12. Mr. Jani has submitted that the petitioners being Special Civil Application No.7844 of 2008 is against the same order on the same ground and therefore, he reiterates the same submissions on behalf of the petitioners of Special Civil Application No.7844 of 2008. In that view of the matter, the same order would follow and apply in Special Civil Application No.7844 of 2008 also.
13. It is clarified that the observations made in this order are only prima facie observations and do not reflect final conclusion on merits of the contentions of the petitioners.
14. So far as, Civil Applications No. 6443 of 2008, 6444 of 2008 and 6445 of 2008 which are filed by the applicant Mr. Shaileshbhai G. Patel described as third party by the learned Tribunal, are concerned, it is required to be noted that the Court is given to understand that present applicant is the same, who had filed the application before the learned Tribunal also. It is pertinent that subsequently, said application was withdrawn by the present applicant. Once having withdrawn, the application before the learned Tribunal, present applicant is now not justified in coming out with captioned application requesting for being impleaded as party. More particularly, when the applicant has failed to make out any case to show as to how he is necessary and proper party to the proceedings. In any case, after having withdrawn the application before the learned Tribunal, the applicant is not justified in preferring the captioned application. However instead of passing any final order thereon the same are directed to be heard with petitions.
For further hearing the petitions are adjourned to 17.6.2008.
[ K.M. Thaker, J. ] ynvyas.