Gujarat High Court
Modnath Vaidyanath Mishra vs State Of Gujarat on 2 August, 2018
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/12380/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12380 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 12453 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 12963 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 12995 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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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 or any
order made thereunder ?
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MODNATH VAIDYANATH MISHRA
Versus
STATE OF GUJARAT
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Appearance:
SHRI SHALIN N. MEHTA, SENIOR ADVOCATE with MR NK
MAJMUDAR(430) for the PETITIONER(s) No. 1
G H VIRK(7392) for the RESPONDENT(s) No. 4,5
SHRI MANAN MEHTA, AGP for the RESPONDENT(s) No. 1,2,3
RULE SERVED(64) for the RESPONDENT(s) No. 6
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 02/08/2018
Page 1 of 18
C/SCA/12380/2016 JUDGMENT
COMMON ORAL JUDGMENT
1. Special Civil Application No. 12380 of 2016 is filed by the the Petitioner - Shri Modnath Vaidyanath Mishra, who is the Principal of Shree Ambaji Arts College, Ambaji under Articles 14, 16, 226 of the Constitution of India for the prayers inter alia that appropriate writ, order or direction may be issued directing the Respondent Authorities to consider and decide the representation of the petitioner dated 2.7.2016 and the Respondent Authorities may be directed to provide a personal hearing to the petitioner considering the Government Resolutions dated 20.7.2007 and 4.7.2007. It is further prayed that the petitioner may be ordered to be reinstated and the suspension of the petitioner may be reviewed by the authorities on the ground stated in the memo of petition.
2. Special Civil Application No. 12963 of 2016 is also filed by the same Petitioner - Shri Modnath Vaidyanath Mishra, who is the Principal of Shree Ambaji Arts College, Ambaji under Articles 14 and 226 of the Constitution of India for the prayers inter alia that the communications dated 9.11.2009, 2.4.2011 and 17.8.2009 may be quashed and set aside. It is further prayed to direct the Respondent Authorities to consider and decide the application / representation dated 16.7.2016 of the petitioner and to give Page 2 of 18 C/SCA/12380/2016 JUDGMENT personal hearing to the petitioner and after considering the circular dated 19.4.2004 the representation of the petitioner may be considered.
3. Special Civil Application No. 12453 of 2016 is filed by the the Petitioner - Shri Dinesh Manilal Upadhjyay, who is the Senior Clerk of Shree Ambaji Arts College, Ambaji under Articles 14, 16, 226 of the Constitution of India for the prayers inter alia that appropriate writ, order or direction may be issued directing the Respondent Authorities to consider and decide the representation of the petitioner dated 2.7.2016 and the Respondent Authorities may be directed to provide a personal hearing to the petitioner considering the Government Resolutions dated 20.7.2007 and 4.7.2007. It is further prayed that the petitioner may be ordered to be reinstated and the suspension of the petitioner may be reviewed by the authorities on the ground stated in the memo of petition. The petitioner has further prayed to direct the Respondent - Shree Hemchandracharya North Gujarat University to pay the difference of subsistence allowance by making payment of 75% basic salary plus allowances as per the Ordinance - 144 along with 12% interest.
4. Special Civil Application No. 12995 of 2016 is also filed by the same Petitioner - Shri Dinesh Manilal Upadhyay, who is the Page 3 of 18 C/SCA/12380/2016 JUDGMENT Senior Clerk of Shree Ambaji Arts College, Ambaji, under Articles 14 and 226 of the Constitution of India for the prayers inter alia that the communications dated 9.11.2009 and 2.4.2011 may be quashed and set aside. It is further prayed to direct the Respondent Authorities to consider and decide the application / representation dated 16.7.2016 of the petitioner and to give personal hearing to the petitioner and after considering the circular dated 19.4.2004 the representation of the petitioner may be considered. The facts of the case briefly summarized are as follows.
5. The petitioner of Special Civil Application Nos. 12380 of 2016 and 12963 of 2016 is appointed as Principal of Shree Ambaji Arts College, run and managed by the Respondent No. 5 - Shree Aarasuri Ambaji Mata Devasthan Trust on 17.6.2003. While serving the college as Principals, a complaint regarding financial irregularities were made and the FIRs have been lodged being CR No. 101 of 2009 and CR No. 131 of 2009 before the Ambaji Police Station for the alleged offences under the provisions of Prevention of Corruption Act. The petitioner was arrested and thereafter was released on bail and the investigation was carried out, which has culminated into a criminal proceedings. However, the disciplinary proceedings also were initiated and the charge sheet dated 9.11.2009, 2.4.2011 and 17.8.2009 were issued. The petitioner was Page 4 of 18 C/SCA/12380/2016 JUDGMENT placed under suspension vide order dated 2.7.2009. The said suspension was challenged by the petitioner before the Gujarat Affiliated Colleges Services Tribunal, Ahmedabad (hereinafter referred to as "the Tribunal") and the Tribunal has quashed and set aside the order of suspension, against which Special Civil Application No. 614 of 2011 came to be preferred by Respondent No.5 - Trust. The earlier order of suspension was revoked and the another order dated 10.1.2011 was passed which was again challenged before the Tribunal vide Application No. 7/2011, which is pending for final hearing. Thereafter the order dated 3.8.2011 came to be passed by which the petitioner has been removed / dismissed from service. The said order of dismissal has been challenged by way of Appeal No. 2 of 2011 before the Tribunal and the order of dismissal / removal was quashed and set aside by the Tribunbal vide order dated 28.1.2013. However, Respondent No.5 - Trust preferred Special Civil Application No. 8010 of 2013 challenging the said order of the Tribunal dated 28.1.2013 setting aside the order of dismissal / removal. However, the said petition was disposed of by the High Court (Coram: Harsha Devani,J) vide order dated 15.7.2014 produced at Annexure-H. Therefore relying upon the Government Notification dated 4.7.2007 by which the Gujarat Civil Services (Discipline & Appeals) (1st Amendment) Page 5 of 18 C/SCA/12380/2016 JUDGMENT Rules 2007 came to be introduced with Rule 5 - 2A imposing a mandatory duty upon the concerned authority to review the order of suspension and modify or revoke the same before the expiry of the stipulated period in view of the notification. Therefore, the petitioner has contended that as he has been for long time under suspension, it has to be reviewed, and therefore, he preferred a representation dated 2.7.2016. However, as stated above it has not been considered, and therefore, the present petition is preferred for appropriate direction including the direction to decide the representation dated 2.7.2016.
6. The affidavit-in-reply has been filed by Respondent No.5 - Trust and while referring to the details it has been specifically contended that all the petitions deserve to be dismissed on the ground of suppressio veri suggestio falsi. It has been contended that the petition is not maintainable for several reasons or the grounds. It is further contended that the petition does not seek to challenge any decision of the Respondents and therefore it is premature. However, it is only to pressurize the Respondents to reinstate the petitioners as the petitions have been filed seeking a direction to consider the representation and / or to review the suspension. However, reference is made to the charges against the petitioners of SCA 12380/2016 and 12963/2016 that when they are serving as Page 6 of 18 C/SCA/12380/2016 JUDGMENT Principals of the college, they have siphoned of the amount of Rs.2,36,51,132/-. The affidavit refers to the manner in which the amount has been siphoned of and also the remarks of the Auditor with conclusion. The earlier petition has been also referred and reliance is placed on the order of suspension. The order of the Tribunal dated 28.1.2013 was challenged by way of Special Civil Application No. 8010 of 2013 and the High Court by order dated 15.7.2014 disposed of the same observing that it would not be proper to give any direction regarding joining of duty by the Respondents in service of the College and it has also been observed that the subsistence allowance has been paid. It is specifically stated that the Respondent No.5 - Trust has already taken the view that the petitioners cannot be reinstated in view of the grave offcence committed by them and the Respondent No.5 - Trust vide letter dated 29.4.2016 conveyed to the appropriate authority. It is also contended that the inquiry is conducted by retired IAS officer and the meeting was held on 11.7.2016 and thereafter however the petitioners have been consuming time on different grounds. Therefore it has been contended that the misleading statements are made that the inquiry has not been proceeded further and therefore the present petition has been filed.
7. Heard learned Senior Counsel Shri Shalin N. Mehta appearing with Page 7 of 18 C/SCA/12380/2016 JUDGMENT learned Advocate Shri N.K.Majmudar for the petitioners, learned AGP Mr. Manan Mehta for Respondent Nos. 1 to 3 and learned Advocate Shri G.H.Virk for Respondent - Shree Aarasuri Ambaji Mata Devasthan Trust.
8. Learned Senior Counsel Shri Shalin Mehta for the petitioners has referred to the background of the facts with chequerred history and also tried to submit that the petitioners have been kept under suspension for long which is not permissible. In support of this submission, he has referred to the amended provisions of Gujarat Civil Services (Discipline & Appeal) (1st Amendment) Rules 2007. Again, reference is made to the earlier orders passed by the High Court in view of the orders passed in SCA 8010/2013 dated 15.7.2014. Therefore, it has been strenuously submitted that the direction may be issued to consider the representation dated 2.7.2016.
9. Learned Senior Counsel Shri Shalin Mehta has also referred to the order passed by the Gujarat Civil Services Tribunal dated 28.1.2013, by which the order of dismissal is set aside. It has also been submitted that as the petitioners have been under suspension for a long period, they could have been taken back in the services or at least the case should have been reviewed. It has been submitted that the Respondent Authorities have not reviewed the Page 8 of 18 C/SCA/12380/2016 JUDGMENT case of suspension of the petitioners and therefore the present petitions may be allowed with appropriate direction.
10.Learned Senior Counsel Shri Shalin Mehta submitted that the allegations about the financial irregularity is a matter of criminal proceeding or a departmental inquiry, where the papers have been collected, and therefore, it may not be a reason to continue the petitioners under suspension as it is based on documentary evidence which are already collected. Learned Senior Counsel Shri Shalin Mehta therefore submitted that the authority of the university has also not complied with the Rules and the Ordinance. He therefore submitted that present petitions may be allowed.
11.Learned Advocate Mr. Virk for the Respondent - Trust has referred to the background and the chequerred history and submitted that the fact remains that the petitioners have been indulged in a financial irregularity for which two cases have been registered culminating into criminal proceedings for the offence under the Prevention of Corruption Act. He submitted that the petitioners have been following every matter and litigations right up to the Hon'ble Apex Court. He submitted that in fact the present petitions are not maintainable on the principles of res judicata or analogous principles. Learned Advocate Mr. Virk has referred to the papers and submitted that the identical Civil Application No. Page 9 of 18 C/SCA/12380/2016 JUDGMENT 328 of 2018 in Special Civil Application No. 12963 of 2016 was dismissed. For that purpose he referred to the papers and submitted that Letters Patent Appeal No. 236 of 2018 also came to be filed which was also dismissed. He submitted that against such order of the Hon'ble Division Bench in LPA 236/2018, Special Leave Petition (Civil) No. 7261 of 2018 was preferred which has been rejected.
12.Learned Advocate Mr. Virk for the Respondent - Trust submitted that during the pendency of the petitions the petitioner of Special Civil Application Nos. 12380/2016 and 12963/2016 had filed Criminal Misc. Application No. 6370 of 2013 for quashing of criminal complaint which came to be rejected. Again, it was also carried before the Hon'ble Apex Court and the Hon'ble Apex Court has also confirmed the order of the High Court in those criminal proceedings. Therefore, learned Advocate Mr. Virk submitted that this is an abuse of the process of court. He also referred to further details including SCA 12963/2016 and pointedly referred to the FIR produced on record and the charge sheet in the departmental inquiry. Therefore, learned Advocate Mr. Virk submitted that with these charges, the issue regarding suspension cannot be pressed. He submitted that in fact the suspension has been reviewed by the authority. He submitted that strictly the GR dated 20.7.2007 and Page 10 of 18 C/SCA/12380/2016 JUDGMENT 4.7.2007 would not have any application as the petitioners were an employee of the college affiliated to the university, and therefore, the ordinance and the regulations as applicable and adopted by the Respondent - University would be applicable qua such disciplinary measures. He therefore pointedly referred to the ordinance produced on record and submitted that the suspension has been reviewed and it has been decided that it is not in the interest of the institution to allow the petitioners to resume duties. He therefore submitted that there is no merit in such submission that the case of the petitioners qua suspension has not been reviewed. Learned Advocate Mr. Virk has referred to and relied upon the judgments of the Hon'ble Apex Court reported in;
(i) (1999) 3 SCC 679 in case of Capt. M. Paul Anthony v.
Bharat Gold Mines Ltd. and Anr.
(ii) (2014) 3 SCC 636 in case of Stanzen Toyotetsu India Private Limited v. Girish V. and Ors.
(iii) (2013) 16 SCC 147 in case of Union of India & Anr.
Ashok Kumar Aggarwal, and (iv) 1991 (Supp) 3 SCC 483 in case of U.P.Rajya Krishi
Utpadan Mandi Parishad & Anr. v. Narendra Kumar Malik & Anr.
13.In rejoinder, learned Senior Counsel Shri Shalin Mehta for the petitioners has referred to the papers at length and submitted that Page 11 of 18 C/SCA/12380/2016 JUDGMENT the long duration of suspension would cause agony and the persons like petitioners, who are under suspension may have to face the consequences, and therefore, it cannot be continued for a long period. He further submitted that since the cases which are pending are based on the documentary evidence which have been collected, there is no justification to keep the petitioners under suspension, and therefore appropriate direction may be issued.
14.In view of the rival submissions, it is required to be considered whether the present group of petitions deserve consideration.
15.As recorded and discussed herein above, the chequerred history of the petitioners with the nature of charges including about the corruption would hardly call for any interference in exercise of discretion under Articles 226 and 227 of the Constitution of India. Further, it is not in dispute that earlier in SCA 12963/2016, Civil Application No. 328/2018 was filed and it came to be rejected. However, it was carried by way of Letters Patent Appeal No. 236/2018 before the Hon'ble Division Bench and the Hon'ble Division Bench has also dismissed the Letters Patent Appeal. However, the petitioner carried it before the Hon'ble Apex Court by way of SLP (C) No. 7261/2018 and the Hon'ble Apex Court has also declined to interfere. Therefore, for the similar or the identical prayer, when one Civil Application has already been disposed of, Page 12 of 18 C/SCA/12380/2016 JUDGMENT successive application may not be justified on a principle analogous to the res judicata. In other words, if strictly, the principle of res judicata may not be applicable, even then the same issue cannot be permitted to be raised again and again when after considering the relevant aspects, the issue has been considered and the courts including the Hon'ble Apex Court has declined to grant any relief of reinstatement or setting aside of the suspension. Further, admittedly, against the criminal cases filed, the petitioners preferred Criminal Msic. Application No. 6370/2013 for quashing those criminal complaints which came to be rejected by the High Court. Thereafter it was carried before the Hon'ble Apex Court and the Hon'ble Apex Court has also dismissed the same, meaning thereby the efforts for quashing the FIRs have also been made which have been turned down.
16.It is in this background, the submissions made by the learned Senior Counsel Shri Shalin Mehta are required to be scrutinized. The submission made with much emphasis on the long duration of suspension and setting aside the suspension referring to the observations made by the Tribunal has no merit looking to the gravamen of charges and the fact that the petitioners are Principals and Clerks of the College where they have manipulated their position which has led to siphoning of money and ultimately Page 13 of 18 C/SCA/12380/2016 JUDGMENT culminated into two criminal cases as stated above and if the persons like the petitioners are allowed to function, it would reflect bad on the image of the institution and it will have an adverse social impact. It is in these circumstances, the review has been conducted by the authority on their own and they have taken a conscious decision not to reinstate the petitioners which cannot be said to be erroneous.
17.Again, when the efforts to set aside or quash the criminal cases have not been successful, the petitioners may have to face the same. Further, the departmental inquiry is already proceeded where the petitioners are consuming time. In fact, at the time of hearing before this court also, on one occasion, it was fixed, and thereafter as stated, it has not progressed. Therefore, on one hand the petitioners are not cooperating in the inquiry and on the other hand are making a grievance about the long suspension and also the fact that the inquiry has not progressed. The persons like petitioners cannot be permitted to blow hot and cold and at the same time taking advantage of their own misconduct. If such indulgence is granted it may not be in the interest of justice and also in the interest of the educational institutions.
18.As stated, the main emphasis which has been made relying upon the GR dated 20.7.2007 and 4.7.2007 would not have any Page 14 of 18 C/SCA/12380/2016 JUDGMENT application as the petitioners are not the employees of the government but they are the employees of the college affiliated with the Respondent - University and therefore the ordinance and the regulations as applicable and adopted by the Respondent - University and college affiliated to University would be applicable, which is produced at Annexure-K. The Ordinance 6 referred to:
"Rules Regarding Suspension"
The said Rules referred to the payment of subsistence allowance and, if the period of suspension is more than three months, the suspended employee shall be entitled to receive 75% of the basic salary plus allowances. However it is made clear that the delay in the inquiry should be attributed to the management or the inquiry officer. It has also been clarified that the aforesaid clauses shall not apply to the Government College or the College established and administrated by the minority. Thus such ordinance are specifically applicable to the institutions like the colleges run by the Respondent No.5 - Trust where the Petitioner of SCA Nos. 12380/2016 and 12963/2016 is working as Principal whereas the Petitioner of SCA Nos. 12453/2016 and 12995/2916 is working as Clerk. Therefore the petitioners would be governed by this and the issue regarding review relying upon the amended provisions of Gujarat Civil Services (Discipline & Appeal) Rules may not be Page 15 of 18 C/SCA/12380/2016 JUDGMENT strictly attracted or applicable. However, on general principle, the Respondent No.5 - Trust has already reviewed the case of the petitioners and after considering the gravamen of charges and the antecedents, have taken a conscious decision that the petitioners cannot be taken back in service as it would adversely affect the public interest as well as the interest of the institution which is an educational institution.
19.Moreover, the issue regarding the complaint about sexual harassment by the Petitioner of SCA Nos. 12380/2016 and 12963/2016, who is the Principal, to the female colleague and the complaint made is a separate issue.
20. Therefore, without any further elaboration, in light of the discussions made herein above and in light of the judgments which have been referred to by learned Senior Counsel Shri Shalin Mehta including the judgments reported in case of Union Of India (Uoi) And Ors. vs Udai Narain reported in (1998) 5 SCC 535 and also the judgment of the Hon'ble Apex Court reported in case of U.P.Rajya Krishi Utpadan Mandi Parishad & Anr. v. Narendra Kumar Malik & Anr. (supra) , the present petitions cannot be entertained and deserve to be dismissed.
21.It is however clarified that it will be open for the Respondents to proceed with the inquiry and the petitioners shall cooperate with Page 16 of 18 C/SCA/12380/2016 JUDGMENT the inquiry to take care of any further delay.
22.It is required to be noted that the petitioner of Special Civil Application No. 12453 of 20916 and Special Civil Application No. 12995 of 2016 has been employed as Clerk who has been found indulging in financial irregularity for which the FIR has been registered culminating into criminal case for the offence under the Prevention of Corruption Act which is pending. The petitioner has also been proceeded with departmentally. However, the petitioner has filed both the petitions for the prayer that his representation dated 2.7.2016 may be decided by the Respondent authorities and the same may be considered after giving personal hearing as per Government Resolutions dated 20.7.2007 and 4.7.2007. It is further prayed to make the payment of 75% of the basic salary plus allowances as per Ordinance-144 on the grounds stated in the memo of petitions.
In view of the above, it may be required to be stated that the petitioner of SCA 12453/2016 and SCA 12995/2016 has filed both the petitions on identical grounds for a similar prayer regarding consideration of his representation dated 2.7.2016 and also for further directions which cannot be entertained in light of the gravamen as well as the pending criminal proceedings and also the departmental inquiry. However, it is clarified that the subsistence Page 17 of 18 C/SCA/12380/2016 JUDGMENT allowance as per the ordinance may be paid henceforth to the Petitioner of SCA 12453/2016 and 12995/2016, if not already paid.
23.The present group of petitions accordingly stands dismissed. Rule is discharged. Interim relief stands vacated.
(RAJESH H.SHUKLA, J) J.N. W Page 18 of 18