Gujarat High Court
Dabhi Arvindbhai Manjibhai vs State Of Gujarat on 8 July, 2022
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh J. Shastri
C/LPA/1411/2018 ORDER DATED: 08/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
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==========================================================
DABHI ARVINDBHAI MANJIBHAI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR UT MISHRA(3605) for writ applicants
MR KM ANTANI, AGP for Respondent-State in all petitions
MR HS MUNSHAW(495), MR ANAND YAGNIK and MR MANISH PATEL for
respective District Panchayats
MS DIPIKA L LALWANI(10089) for the Respondent(s) No. 3
DS AFF.NOT FILED (N) for the Respondent(s) No. 4
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 08/07/2022
COMMON ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. These intra-court appeals are directed against the Page 10 of 22 Downloaded on : Sat Dec 24 20:37:22 IST 2022 C/LPA/1411/2018 ORDER DATED: 08/07/2022 orders passed by the learned Single Judge whereunder, orders of termination passed against some of the writ applicants, who had been discharged by the respective respondent District Panchayats, has been set aside and respondent District Panchayats were directed to reinstate the writ applicants who have been terminated with full back wages and continuity of service.
BRIEF BACKGROUND OF THE CASE
2. The writ applicants had applied for the post of Multipurpose Health Workers and on being issued with letters of appointment, they had cleared the written test and oral interview before being issued with the appointment orders by the Chief District Health Officer and they were appointed on the strength of certificate issued for "Diploma in Health and Sanitary Inspector's Course" and after such appointment, they were posted at different places. Respondents claim to have called upon the candidates to produce or tender proof of they having undergone the said course and on account of same having not been furnished, order of termination came to be passed by the respondent on 6.12.2018, on the ground that Page 11 of 22 Downloaded on : Sat Dec 24 20:37:22 IST 2022 C/LPA/1411/2018 ORDER DATED: 08/07/2022 certificates issued by the University in which they claim to have studied are bogus certificates. Assailing the same, Special Civil Applications came to be filed.
3. The learned Single Judge by the impugned order has allowed Special Civil Applications and impugned order of termination has been quashed on the ground that it was passed in flagrant breach of principles of natural justice. It also came to be observed by the learned Single Judge that before termination of services of writ applicants, no show cause notice was issued and an inquiry had been conducted behind their back. Learned Single Judge has also granted liberty to the respondent authority to conduct inquiry and pass order thereon after affording opportunity of hearing to the writ applicants. Hence, these Letters Patent Appeals/Special Civil Applications.
4. Since in these petitions the common questions of fact and law would arise, we are of the considered view that it would be apt and appropriate to dispose of these matters by common judgment. Accordingly, we have heard the arguments of M/s H.S. Munshaw, Anand Yagnik and Manish Patel, learned counsels appearing for respective District Panchayats, Mr. T.R. Mishra, learned counsel appearing for the writ applicants and Page 12 of 22 Downloaded on : Sat Dec 24 20:37:22 IST 2022 C/LPA/1411/2018 ORDER DATED: 08/07/2022 Mr. Akshat Khare on behalf of Mrs. Suman Khare, learned counsel appearing for University Grants Commission.
5. It is the contention of Mr. H.S.Munshaw, learned counsel appearing for the District Panchayats that on the strength of bogus certificates, writ applicants had obtained employment and as such, in order to ascertain as to whether the writ applicants have really studied Diploma Course, respondent had called for certain information from them, which was not furnished and as such, based on the internal inquiry report, writ applicants have been terminated and as such, he would support the respective orders of termination.
6. Mr. Anand Yagnik, learned counsel appearing for some of the District Panchayats would contend that the questions, which would have to be considered, examined and adjudicated by this Court, relate to ascertaining whether University had permitted for said course being conducted. He would also submit that incidental question which would arise would be as to whether the Universities have been permitted to establish Distance Education Centre and without the candidates attending the said Centre could have been given the Diploma certificate. He would also submit that burden is on the Page 13 of 22 Downloaded on : Sat Dec 24 20:37:22 IST 2022 C/LPA/1411/2018 ORDER DATED: 08/07/2022 candidates to establish that they have actually studied or attended the course and in the absence thereof, certificates produced by the writ applicants of respective Universities will have to be necessarily held as fake or bogus. However, he would hasten to add that there was no departmental inquiry conducted against the candidates who have been terminated before passing the order of termination.
7. Mr. Akshat Khare, learned counsel appearing for the University Grants Commission would submit that issue as to whether University had issued Diploma Certificates for having certified that they have attended the Distance Education Centre will have to be examined by this Court since the candidates from other States would not be permitted to have certificate of Diploma from the University in the State of Gujarat. He would also contend that respective Universities which are established or incorporated under the respective Central Act, Provisional Acts or State Acts, their names would be included by the UGC on request made by the respective Universities and such inclusion of names of such Universities would be subject to awarding degrees through its main campus with the approval of the statutory councils and it would be subject to further Page 14 of 22 Downloaded on : Sat Dec 24 20:37:22 IST 2022 C/LPA/1411/2018 ORDER DATED: 08/07/2022 condition that University should not affiliate any college/institution beyond the territorial jurisdiction prescribed under the University Grants Commission (Establishment of and Maintenance of Standards in Private Universities) Regulations, 2003. Hence, he has prayed for suitable orders being passed.
8. Having heard the learned counsels appearing for the parties and on perusal of the records, it would clearly emerge therefrom that writ applicants who have been terminated had produced Diploma pass certificates issued by the following five Universities:
(1) Manav Bharti University, Himachal Pradesh (2) Sunrise University, Rajasthan (3) OPJS University, Charu Rajasthan (4) Himalayan University, Arunachal Pradesh (5) Vinayaka Mission University, Tamil Nadu
9. On the strength of said certificates issued, call letters came to be issued to respective writ applicants, who appeared for interview and after evaluating the documents produced by them, they were issued with appointment Page 15 of 22 Downloaded on : Sat Dec 24 20:37:22 IST 2022 C/LPA/1411/2018 ORDER DATED: 08/07/2022 orders pursuant to which, they have been discharging their duties till their termination.
10. As noticed hereinabove, the termination was occasioned on account of the employer namely, District Panchayats arriving at a conclusion that marks card furnished by petitioners were fake on the strength of internal inquiry conducted. In fact, this Court was dealing with somewhat similar issue in Letters Patent Appeal No.79 of 2022 disposed of on 25.4.2022 and it came to be held thus:
"11. Now, turning our attention back to the facts on hand, as noticed herein-above, impugned orders have been passed without even issuing notice to the petitioners. As to whether certificates submitted by the petitioners to sustain their stand by having passed the requisite course had to be accepted or not was required to be examined after following principles of natural justice. If reply of the petitioners were rejected, reasons had to be assigned and writ applicants ought to have been notified of such rejection. This exercise having not been undertaken by the appellant, learned Single Judge was correct in arriving at a conclusion that impugned order smacks of arbitrariness or in other words, it is in violation of principles of natural justice. Said finding recorded by the learned Single Judge, in our considered view, does not suffer from any infirmity either on facts Page 16 of 22 Downloaded on : Sat Dec 24 20:37:22 IST 2022 C/LPA/1411/2018 ORDER DATED: 08/07/2022 or in law, calling for our interference.
12. Insofar as award of back-wages in its entirety is concerned, it would not detain us for too long to modify the same, inasmuch as learned counsel appearing for the writ applicants has fairly submitted that award of back wages is left to the discretion of this Court. Having regard to the fact that petitioners have been terminated on the basis of the direction issued in Letters Patent Appeal No.504 of 2016, disposed of on 18.7.2017, which resulted in the communication dated 30.7.2018 being issued by the original respondent to all the DDOs who in turn obtained the reports from the committee consisting of two officers deputed to the University, which resulted in accepting the report and terminating the services of the petitioners. In other words, there was no occasion for the appellant herein to call for explanation from the contesting respondents, namely respondent Nos.4 to 6. In fact, in the matter of the applicant in Special Civil Application No.13671 of 2012, the department has accepted that there is no challenge to the said order. In this background, we are of the considered view that ends of justice would be met if back-wages are ordered to be paid from the date of the order of learned Single Judge, namely 27.8.2021, which shall be paid within an outer limit of THREE MONTHS from today."
(Emphasis supplied by us)
11. Though Mr. Munshaw and Mr. Anand Yagnik would support the impugned orders, fact remains that before passing order of termination, no show cause notice came to be issued to candidates/writ applicants and in some of the cases, it has Page 17 of 22 Downloaded on : Sat Dec 24 20:37:22 IST 2022 C/LPA/1411/2018 ORDER DATED: 08/07/2022 been noticed by District Panchayats that their internal inquiry report suggested that candidates having not attended the course and thereby it resulted in order of termination being passed or authorities having arrived at a conclusion that the marks card/Degree Certificates produced by writ applicants were fake. If it were to be so, District Panchayat was required to meet the principles of natural justice. If the termination order was based on an internal inquiry report, the minimum requirement was to supply copy of such report to the respective candidates and call for their reply and after considering their reply, if any, termination order could have been passed, if thought fit. On the other hand, termination order has been passed without even issuing show cause notice and based on internal inquiry report. Such termination would necessarily be in violation of principles of natural justice, as the doctrine of audi altem partem having not been adhered to. When civil consequences follow, naturally the principles of natural justice cannot be ignored. Though an attempt has been made to press into service the doctrine of useless formality theory, by contending that even issuance of notice would not have altered the situation, on the basis of material available on record, it Page 18 of 22 Downloaded on : Sat Dec 24 20:37:22 IST 2022 C/LPA/1411/2018 ORDER DATED: 08/07/2022 cannot be held so. As such, we are of the considered view that requirement of principles of natural justice had to be extended to the writ applicants before the order of termination came to be passed. Since the termination order has been passed without issuance of show cause notice, it cannot stand the test of law.
For the reasons aforesaid, we proceed to pass the following ORDER
(i) Letters Patent Appeals and Special Civil Applications stand disposed of.
(ii) As far as Special Civil Application Nos.7118 of 2020, 7364 of 2020, 10471 of 2019, 17283 of 2018 and 20729 of 2018 are concerned, they are hereby allowed and notice of termination issued to writ applicants is ordered to be treated as show cause notice and reply be submitted by the writ applicants and thereafter, same be adjudicated by respective Panchayats in accordance with law. Page 19 of 22 Downloaded on : Sat Dec 24 20:37:22 IST 2022 C/LPA/1411/2018 ORDER DATED: 08/07/2022
(iii) Orders passed by the learned Single Judge in setting aside the order of termination are sustained. However, order directing payment of back wages from the date of termination stands modified by directing payment of wages from the date of order of the learned Single and said compliance shall be made within an outer limit of three months from today.
(iv) Respective District Panchayats would be at liberty to initiate fresh proceedings, if deemed fit and if so advised, and pass orders after treating the order of termination as show cause notice and on consideration of the reply, pass orders in accordance with law as observed hereinabove.
(v) We make it clear that we have not expressed any opinion with regard to correctness, authenticity and validity of Diploma Certificates which came to be produced by the respective writ applicants at the time of their employment and it is open for the respective District Panchayats to pass orders after Page 20 of 22 Downloaded on : Sat Dec 24 20:37:22 IST 2022 C/LPA/1411/2018 ORDER DATED: 08/07/2022 considering the reply, if any, that would be submitted by the writ applicants.
(vi) It is also made clear that where no show cause notice has been issued, respective District Panchayats shall issue show cause notice and after considering the reply, if any, submitted by the writ applicants within the period stipulated under show cause, are empowered to pass orders on merits and in accordance with law. However, in respect of those writ applicants to whom show cause notices have been issued but termination order is based on the internal inquiry report, copy of such report shall be furnished to them to enable them to have their say on the said issue.
(vii) Respective writ applicants, who have not yet been reinstated, pursuant to order of the learned Single Judge, shall be reinstated by respective District Panchayats within an outer limit of one month from the date of receipt of copy of this order.
(viii)It is also made clear that writ applicants on being Page 21 of 22 Downloaded on : Sat Dec 24 20:37:22 IST 2022 C/LPA/1411/2018 ORDER DATED: 08/07/2022 served with show cause notice or report, as the case may be, shall extend full co-operation to the District Panchayats in concluding the inquiry and it is needless to state that in the event of any such writ applicants failing to co-operate in the inquiry, appropriate authority would be at liberty to proceed to adjudicate the same in accordance with law.
(ix) Costs made easy.
(x) Pending applications, if any, stand consigned to records.
(ARAVIND KUMAR,CJ) (ASHUTOSH J. SHASTRI, J) RADHAKRISHNAN K.V. Page 22 of 22 Downloaded on : Sat Dec 24 20:37:22 IST 2022