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Gujarat High Court

Narendrabhai Kathadbhai Servaiya vs Amreli Municipality on 15 June, 2021

Author: J.B.Pardiwala

Bench: J.B.Pardiwala, Vaibhavi D. Nanavati

       C/LPA/1825/2017                            ORDER DATED: 15/06/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 1825 of 2017

              In R/SPECIAL CIVIL APPLICATION NO. 1378 of 2004

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                     NARENDRABHAI KATHADBHAI SERVAIYA
                                  Versus
                       AMRELI MUNICIPALITY & 1 other(s)
==========================================================
Appearance:
MR HK PARMAR(1220) for the Appellant(s) No. 1
MR. ALPESH H PARMAR(3747) for the Appellant(s) No. 1
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
           and
           HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 15/06/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ-applicant of a writ-application and is directed against the order passed by a learned Single Judge of this Court dated 10.11.2016 in the Special Civil Application No.1378 of 2004 by which the learned Single Judge rejected the writ- application thereby declining to grant any relief to the writ- applicant.

2. The facts giving rise to this appeal may be summarized as under:-

2.1 The appellant [original writ-applicant] was appointed as a Driver with the Amreli Municipality purely on temporary basis for a Page 1 of 4 Downloaded on : Fri Jun 18 00:10:42 IST 2021 C/LPA/1825/2017 ORDER DATED: 15/06/2021 period of 06 months vide order dated 30.12.1991. The services of the appellant herein came to be terminated vide order dated 24.01.2003 passed by the Chief Officer of the Municipality, Amreli.

It is not in dispute that the appellant was issued a show-cause notice wherein the allegations were levelled that he had remained absent for a period of almost 03 years from duty without any prior approval of his superior authority. Such order terminating the services of the appellant was passed under Section 48 of the Gujarat Municipalities Act, 1963. The amount of 5,812/- was paid to the appellant as a notice pay.

2.2 The appellant being aggrieved and dissatisfied with such order of termination preferred an appeal before the Collector, Amreli. The appeal also came to be dismissed vide order dated 12.07.2003 substantially on the ground that the appellant should have to preferred an appeal under Sub-section 4 of Section 48 of the Act, 1963 before the Executive Committee of the Municipality. Thereafter, the appellant went before the Director of Municipalities. The Director of Municipalities declined to interfere with the order of termination and asked the appellant to approach the appropriate authority under Sub-section 4 of Section of the Act, 1963. In such circumstances referred to above, the appellant came before this Court by filing the Special Civil Application No.1378 of 2004.

3. The learned Single Judge after due consideration of all the relevant aspects of the matter ultimately declined to interfere and accordingly, rejected the writ-application. While rejecting the writ- application, the learned Single Judge observed as under:-

C/LPA/1825/2017 ORDER DATED: 15/06/2021 "5. Learned advocate appearing for the respondent submits that the present petition is not maintainable mainly on the ground that the order at annexure-A is an appealable order and the petitioner is required to prefer an appeal under sub-section 4 of Section 48 of the Gujarat Municipalities Act, 1963. It is an admitted position that the petitioner has not preferred the appeal as required under law before the appropriate authority. Learned advocate further submits that despite specific intimation given by the Collector as well as the Director Municipalities about forum before which appeal can be preferred under the Gujarat Municipalities Act, the petitioner had not chosen to follow the advise given by the superior authorities and preferred writ petition before this Court challenging the orders referred herein- above. It is also submitted that the petitioner has no case on merit also because the conduct of the petitioner was not satisfactory at all and the petitioner was appointed purely on temporary and ad-hoc basis without following due process of law and despite temporary employment, because of highhanded an approach he remained absent for a considerable long period during last 3 years such in disciplinary action of the petitioner has compelled the Chief Officer, Nagarpalika to take an extreme step of terminating his service which was purely temporarily in nature. However, without touching the merit of the case, the learned advocate submits that let this petition be dismissed and disposed of mainly on the ground of maintainability so that petitioner if at all wants to approach the appellate authority by taking recourse of law he can have an opportunity to prefer an appeal if he choose to file such an appeal.

6. Regard being had to the above submission and having regard to the facts and circumstances of the present case, it is very clear from the plain reading of sub-section 4 of Section 48 of the Gujarat Municipalities Act that statutorily appeal is provided against the order passed by the Chief Officer, Municipality. Admittedly, in the instant case no such appeal as required sub- section 4 of Section 48 is preferred by the present petitioner. Moreover, it also emerges from the facts that petitioner was advised to do so but instead of approaching appropriate authority under the law he has approached this Court by way of filing present writ petition.

7. Under the circumstances, the present writ petition deserves to be dismissed on the ground of maintainability as alternative Page 3 of 4 Downloaded on : Fri Jun 18 00:10:42 IST 2021 C/LPA/1825/2017 ORDER DATED: 15/06/2021 efficacious remedy is available to the petitioner. Hence, the same is dismissed mainly on the ground of maintainability. However, in the event of filing an appeal with application for condonation of delay by the petitioner before appellate authority the same shall be considered in accordance with law. Ordered accordingly. Rule is discharged."

4. We take notice of the fact that the writ-application came to be rejected not only on the ground that the writ-applicant has an alternative efficacious remedy, but also, on merits of the case. Having regard to the conduct of the writ-applicant, the learned Single Judge declined to exercise its discretionary writ-jurisdiction under Article 226 of the Constitution of India. It is not in dispute that without getting any leave sanctioned or even without seeking any prior permission, the appellant remained absent from duty for almost three years. Even otherwise, his appointment was absolutely on temporary basis.

5. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are of the view that no error not to speak of any error of law could be said to have been committed by the learned Single Judge in passing the impugned order.

6. In the result, this appeal fails and is hereby dismissed.

(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) A. B. VAGHELA Page 4 of 4 Downloaded on : Fri Jun 18 00:10:42 IST 2021