Gujarat High Court
Pravin Giradharlal Bhatia vs Government Of India on 18 September, 2024
NEUTRAL CITATION
C/SCA/14466/2014 JUDGMENT DATED: 18/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14466 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PRAVIN GIRADHARLAL BHATIA
Versus
GOVERNMENT OF INDIA & ORS.
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Appearance:
MR KEVIN B VIRVADIYA FOR MR. NISHIT P GANDHI(6946) for the
Petitioner(s) No. 1
KSHITIJ M AMIN(7572) for the Respondent(s) No. 1,3
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 18/09/2024
ORAL JUDGMENT
1. By way of present petition under Article 226 of the Page 1 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Sep 27 2024 Downloaded on : Fri Sep 27 21:57:27 IST 2024 NEUTRAL CITATION C/SCA/14466/2014 JUDGMENT DATED: 18/09/2024 undefined Constitution of India, the petitioner has prayed for the following reliefs :
"(A) YOUR LORDSHIPS may be pleased to issue a writ or mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside impugned decision dated 04.03.2014 of respondent No.1 (at ANNEXURE-I hereto); (B) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to stay operation, implementation and execution of impugned decision dated 04.03.2014 passed by respondent No.1 (at ANNEXURE-I hereto); (C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;"
2. The brief facts giving rise to the present petition are as under :
2.1 The petitioner was appointed as Branch Post Master (BPO) at Munai Vasai Sub Office, Tal. Bhiloda, Sabarkantha Dist. on permanent basis and was terminated from service as BPO by the Head Post Office without assigning any reason whatsoever in writing and the charge was taken back from him. That, petitioner was not paid any legal dues at the time of termination of services and the petitioner was only informed orally that he was terminated for misconduct as he had misappropriated money, however, on date of this alleged misappropriation the petitioner was on leave from work and also subsequently Mail Overseer (Mail Supervisor), Bhiloda has Page 2 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Sep 27 2024 Downloaded on : Fri Sep 27 21:57:27 IST 2024 NEUTRAL CITATION C/SCA/14466/2014 JUDGMENT DATED: 18/09/2024 undefined given letter in writing stating therein, that the present petitioner is innocent. That, the petitioner was not issued any memo or charge-sheet by the Post Office nor any inquiry was conducted against him for any alleged misconduct. That, the petitioner was not given any termination letter by the Post Office. That, thereafter, the petitioner filed many complaints and representations against the Post office, before various authorities for reinstatement but no relief was forthcoming but he was assured by the Post Office that they will take him back in service as and when the vacancy arises, however, till date the petitioner has not been taken back in services. That, the petitioner gave a legal notice through his lawyer by Registered Post A.D., which was received by the Post Office but, the Post Office replied and refused to take back the present petitioner in service.
2.2 It is the case of the petitioner that, the petitioner approached the Assistant Commissioner of Labour (Central) (ACLC), through his petition dated 17/01/2012 and prayed for conciliation proceedings. That, ACLC, through notice dated 06/02/2012 summoned the Superintendent of Post Offices, Sabarkantha Division, Himmatnagar, Dist. Sabarkantha to take Page 3 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Sep 27 2024 Downloaded on : Fri Sep 27 21:57:27 IST 2024 NEUTRAL CITATION C/SCA/14466/2014 JUDGMENT DATED: 18/09/2024 undefined part in the conciliation proceedings scheduled for 08/03/2012. That, after following due procedure of law the conciliation proceedings ended in failure on 09/05/2012 and suggestion was given to both parties for arbitration under the Code of Discipline / Industrial Disputes Act, 1947 (the ID Act) and the same was accepted by the petitioner whereas the same was not accepted by the postal authorities. That, failure of conciliation report was submitted by the ACLC to the appropriate government as per provision of the ID Act for further necessary action, this fact was intimated to the present petitioner vide letter of the ACLC dated 24/05/2012. 2.3 It is the case of the petitioner that, the petitioner preferred Special Civil Application No.16871 of 2013 before this Court with prayer that the respondent authorities may expedite the matter of the petitioner, which was pending before them. That, during pendency of the said petition the impugned decision was received by the petitioner, which fact was also declared before this Court by filing further affidavit dated 21/03/2014. Thus, as the cause of action for filing the said petition did not remain the said petition was withdrawn. That, affidavit-in-reply was also filed by respondent No.3 in the Page 4 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Sep 27 2024 Downloaded on : Fri Sep 27 21:57:27 IST 2024 NEUTRAL CITATION C/SCA/14466/2014 JUDGMENT DATED: 18/09/2024 undefined said petition stating, inter alia, that the petitioner had submitted his resignation on 30/08/1982 and had stated that he had secured other job and that the petitioner had submitted reminder dated 20.09.1982 and had stated that the petitioner himself relieved from the Branch Posts Master w.e.f. 30/08/1982. Various other contentions are raised in the aforesaid affidavit-in-reply.
2.4 Being aggrieved and dissatisfied by the impugned decision dated 04/03/2014 passed by respondent No.1, the petitioner has preferred the present petition under Article 226 read with the provisions of the Industrial Disputes Act, 1947, with the aforesaid prayers.
3. Heard learned advocate Mr.Kevin B. Virvadiya appearing on behalf of Mr.Nishit P. Gandhi, learned advocate for the petitioner and learned advocate Mr.Kshitij Amin, appearing on behalf of the respondent authorities.
4. Learned advocate Mr.Virvadiya has submitted that the impugned action of the respondent Department with regard to relieving the petitioner from service on 17/11/1982 is Page 5 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Sep 27 2024 Downloaded on : Fri Sep 27 21:57:27 IST 2024 NEUTRAL CITATION C/SCA/14466/2014 JUDGMENT DATED: 18/09/2024 undefined absolutely illegal, unjust and unwarranted since he was appointed way-back in the year 1977 as a Post Master and on the basis of some misconduct, the respondent Department has terminated the petitioner from service in 1982 and since thereafter, the petitioner is fighting for his right. He has further submitted that after 1982 the petitioner had written several representations and communications commencing from 19/04/1995 but everything was in vain as the respondent had not considered the representations made by the petitioner and therefore, the petitioner had approached this Court by way of filing Special Civil Application No.16871 of 2013 and during the pendency of the said petition, after considering the representation of the petitioner, the respondent Department has passed the impugned order dated 04/03/2014 and therefore, the petitioner had withdraw the said petition with a view to challenge the same before this Court. He has also submitted that the petitioner had continuously made representations to the respondent Department till 2013 but there was no response from the other side and therefore, at last, he has preferred the present petition and therefore, it cannot be said that there was a delay if raising the dispute before the authority i.e. the Assistant Commissioner of Labour Page 6 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Sep 27 2024 Downloaded on : Fri Sep 27 21:57:27 IST 2024 NEUTRAL CITATION C/SCA/14466/2014 JUDGMENT DATED: 18/09/2024 undefined (Central) and under such circumstances, the authority has committed a grave error by passing the impugned order. He has further submitted that the departmental inquiry against the petitioner was handed over to the concerned authority who had given a report that during the preliminary inquiry, it was found that the petitioner has not committed any irregularity or any misappropriation, which is produced at page-16 of the compilation and relying upon the same, learned advocate for the petitioner has submitted that the petitioner was wrongly relieved from the service. He has further submitted that the impugned order is passed by the respondent authority without giving proper opportunity of hearing to the present petitioner and therefore, there is a gross violation of principles of natural justice.
4.1 In support of his submissions, learned advocate Mr.Virvadiya has referred and relied upon the decision of this Court in case of Manish Natwarlal Bhatt v. Union of India, reported in [2008] GUJHC 26235, wherein he has emphasized upon paragraph no.6 and one another decision in case of Harishchandra Manilal Joshi v. Government of India, reported in [2009] 3 GLH 166, more particularly the Page 7 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Sep 27 2024 Downloaded on : Fri Sep 27 21:57:27 IST 2024 NEUTRAL CITATION C/SCA/14466/2014 JUDGMENT DATED: 18/09/2024 undefined observations made in paragraphs 8 and 9. Learned advocate Mr.Virvadiya has also contended that the dispute with regard to jurisdiction cannot be raised at the time of final hearing and with regard to that one matter was also admitted by this Court and in support of his said contention, he has referred and relied upon the decision rendered by this Court in case of Dahyabhai Devjibhai Vasava v. Deputy District Development Officer (Revenue), Bharuch, reported in [1979] 2 GLR 678, paragraphs 4, 5 and 6; in case of Bhavabhai Bhadabhai Maru v. N.M. Patel, President, Dhandhuka Nagar Panchayat, reported in [1991] 2 GLH 137, paragraphs 6 and 7; and in case of Tata Chemicals Limited v. Adityana Nagar Panchayat, reported in [2001] 1 GLH 583, paragraphs 5 and 5A. Over and above the grounds agitated in the memo of petition, learned advocate Mr. Virvadiya has urged that the impugned decision dated 04/03/2014 passed by the respondent Department not to refer the reference of the petitioner to the concerned CGIT for its final adjudication is absolutely erroneous, illegal and unjust and the same is required to be quashed and set aside and the present petition is required to be allowed. Page 8 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Sep 27 2024 Downloaded on : Fri Sep 27 21:57:27 IST 2024
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5. Per contra, learned advocate Mr.Kshitij Amin, appearing on behalf of the respondent Department, has referred to the affidavit-in-reply filed on behalf of the respondent at page-44, more particularly paragraph-6 onwards and submitted that the petitioner was working with the Postal Department and therefore, appropriate government is the Central Government and the dispute relating to the dismissal or termination is required to be challenged before the Central Administrative Tribunal. He has further submitted that after the decision of tendering voluntary resignation in 1982, for the first time the petitioner had raised the dispute in 1995 by way of making representation and even thereafter, by preferring reference in 2014 and therefore, almost after 36 years have been passed from the date of his retirement / resignation tendered by the petitioner workman before the authority and therefore, there is 32 years of delay in raising the dispute before the competent authority and after considering all these facts, the respondent authority at page-43 has rightly decided that the reference was not required to be referred before CGIT concerned as there was a gross delay in raising the dispute. He has further submitted that the impugned decision is passed by the respondent authority after considering all the relevant facts Page 9 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Sep 27 2024 Downloaded on : Fri Sep 27 21:57:27 IST 2024 NEUTRAL CITATION C/SCA/14466/2014 JUDGMENT DATED: 18/09/2024 undefined and aspects and therefore, under such circumstances, the present petition may not be entertained and the same be dismissed.
6. As against that, the learned advocate for the petitioner has also filed affidavit-in-rejoinder at page-52 and further reiterated the contentions raised in the petition and submitted that the petition be allowed and the impugned decision dated 04/03/2014 be quashed and set aside.
7. I have heard the learned advocates appearing for the respective parties and perused the material placed on record. From the bare perusal of the record and the order passed by the authority it appears that, infact contrary stand is taken by the petitioner. On one hand, he has voluntarily tendered the resignation and on the other hand, he is contending that he was terminated by the respondent authority, even in representation also he himself has stated that he had tendered voluntary resignation and now in the petition, he is contending that he was terminated, therefore, from the bare perusal of the papers and the representation, there are two contrary stand taken by the present petitioner, even the action taken by the Page 10 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Sep 27 2024 Downloaded on : Fri Sep 27 21:57:27 IST 2024 NEUTRAL CITATION C/SCA/14466/2014 JUDGMENT DATED: 18/09/2024 undefined respondent Department in 1982 was never challenged by the petitioner till 2014 and therefore, by making a representation, it cannot be said that the period of limitation cannot be stretched by way of making representation / application before the authority and here, it is now well settled by a series of judgments of this Court that the period of limitation to be considered from the date of action taken by the authority and therefore, under such circumstances, the order passed by the respondent authority is absolutely just and proper and in consideration of the facts of the present case. 7.1 The contention raised by the learned advocate for the petitioner with regard to not giving an opportunity of hearing is concerned, the same shall not come to the rescue of the present petitioner since from 1982 to 2014, the petitioner had never raised this contention and not approached the concerned authority by way of preferring any proceedings and only in 2014, the petition was filed before this Court and that was also withdrawn without there being any liberty and thereafter, the present petition was filed to challenge the order and therefore, it cannot be said that it was without hearing and without following the principles of natural justice. It is pertinent Page 11 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Sep 27 2024 Downloaded on : Fri Sep 27 21:57:27 IST 2024 NEUTRAL CITATION C/SCA/14466/2014 JUDGMENT DATED: 18/09/2024 undefined to note herein that though at the time of admission, the contention raised by the respondent department with regard to the maintainability was not decided but, as it is an undisputed fact that the petitioner was working with the postal department and the appropriate Government is the Central Government and therefore, the appropriate authority before whom the reference can be raised or action can be challenged is the Central Administrative Tribunal and even there is a gross delay of about 32 years in preferring the proceedings before this Court and there are number of judgments of the Hon'ble Apex Court that while raising the dispute if there is a delay though the delay is not prescribed under the I.D. Act, it can be considered by the competent court by way of entertaining the petition after considering the merits of the matter and herein the present case, the action impugned of 1982 was challenged in 2014 and there was a gross delay of 32 years and there was no satisfactory explanation tendered by the petitioner, merely by making a representation, the delay cannot be stretched, and therefore, the impugned action taken by the respondent authority cannot be interfered with at this stage by exercising powers under Article 226 & 227 of the Constitution of India. Fir issuance of writ of certiorari, there is a restriction on the Page 12 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Sep 27 2024 Downloaded on : Fri Sep 27 21:57:27 IST 2024 NEUTRAL CITATION C/SCA/14466/2014 JUDGMENT DATED: 18/09/2024 undefined jurisdiction conferred to the High Court and under such circumstances, while exercising such jurisdiction, the court has to take proper and diligent caution while entertaining the petition.
8. For the foregoing reasons, the present petition being devoid of any merits, deserves to be dismissed and accordingly, it is hereby dismissed. Rule is discharged. No order as to costs.
(HEMANT M. PRACHCHHAK,J) Dolly Page 13 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Fri Sep 27 2024 Downloaded on : Fri Sep 27 21:57:27 IST 2024