Gujarat High Court
Babubhai Ishwarlal Patel vs Pachchim Gujarat Vij Co. Ltd. & 4 on 4 May, 2015
Author: A.J. Desai
Bench: A.J.Desai
C/MCA/491/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 491 of 2014
In SPECIAL CIVIL APPLICATION NO. 2934 of 2008
With
MISC. CIVIL APPLICATION NO. 913 of 2014
In SPECIAL CIVIL APPLICATION NO. 4098 of 2008
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Misc. Civil Application No. 491 of 2014 BABUBHAI ISHWARLAL PATEL ....Applicant Versus PACHCHIM GUJARAT VIJ CO. LTD. & 4....Respondent(s) Misc Civil Application No. 913 of 2014 R.B. PATEL .... Applicant vs PACHCHIM GUJARAT VIJ CO. LTD. & 4....Respondent(s) ========================================================== Appearance in MCA No. 491 of 2014 MR J.T.TRIVEDI, LD. ADVOCATE for the Applicant.
MR MD PANDYA, LD.ADVOCATE for Opponent No.3.
Appearance in MCA No. 913 of 2014 MR DHAVAL N VAKIL, LD. ADVOCATE for the Applicant. MR MD PANDYA, LD.ADVOCATE for Opponent No.3.
========================================================== CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 04/05/2015 CAV COMMON ORDER 1 By way of filing the present applications under Order 47 of the Code of Civil Procedure,1908, the original petitioners have prayed to review of a common CAV Judgment dated 7.1.2014 passed in aforesaid two writ petitions. One applicant has prayed for taking stringent action Page 1 of 20 C/MCA/491/2014 CAV ORDER for criminal contempt for filing such affidavits in the petition which are contrary to the facts, though, they had knowledge of the same and another applicant has prayed to recall the judgment itself on the grounds raised in the present application.
1.1 The reasons for filing the present applications are, mainly, the affidavits filed by the respondent in the writ petition, in which, they have prayed for issuance of writ of mandamus or any other appropriate writ or directions quashing and setting aside the order of the respondent, by which each of the petitioners were denied backwages and all other consequential benefits, though, they were reinstated pursuant to their acquittal by the High Court in criminal proceedings, which were initiated under the provisions of the Prevention of Corruption Act at the instance of private complainant.
1.2 The other ground for the aforesaid prayers made by the applicants in the present applications is the submissions recorded in Paragraph No. 4.3, 4.5 as well as the observations made in Paragraph No. 6.2 of the said judgment.
2 The brief facts arise from the record are as under:
2.1 That the applicants/petitioners were the employees of the Gujarat Electricity Board. The applicants - Mr Babubhai Ishwarlal Patel was working as Deputy Engineer in the GEB and Mr. R.B. Patel was working as Deputy Superintendent in Accounts Branch of the GEB. A criminal complaint came to be filed by one Mr. Manilal Patel, Proprietor of M/s Sriram Companies, against both these petitioners along with other persons for the offenses punishable under the provisions of the Prevention of Corruption Act, 1988. The case was registered as ACB Page 2 of 20 C/MCA/491/2014 CAV ORDER Case No. 2 of 1989 at Sessions Court, Mehsana. The learned Special Judge, at the end of the trial, found the petitioners guilty of offence and were sentenced accordingly. On the ground of conviction recorded by the learned Special Judge, the GEB after following the procedure, dismissed both the petitioners from the service.
2.2 That the petitioners had preferred appeals, being Criminal Appeals No.711 of 1991 and 712 of 1991, before this Court challenging the conviction. The Criminal Appeals filed by the petitioners came to be allowed by judgment and order dated 12.12.2006 and the conviction recorded by the learned Sessions Court was set aside and both the petitioners were acquitted by this Court.
2.3 Since the Gujarat Electricity Board was divided into different companies according to its geographical positions, passed different orders and reinstated both the petitioners in service subsequent to the acquittal by the High Court. Since the respondents were denied the back-
wages and all other consequential benefits to the petitioners, they preferred writ petitions referred hereinabove.
2.4 Pursuant to the notice issued in the petition, the respondents appeared through their Lawyer and filed their affidavit-in-reply in the matter and opposed the grant of any relief as prayed for by the petitioners.
2.5 The above two writ petitions were heard together by the Undersigned at length and by a common judgment dated 7.1.2014 dismissed both the writ petitions filed by each of the petitioners. The learned Advocates who had appeared at the time of hearing of the writ petition, raised several contentions on behalf of both the petitioners, Page 3 of 20 C/MCA/491/2014 CAV ORDER which were replied by learned Advocate appearing for respondents.
3 After considering the rival submissions made by the learned Advocates appearing for the respective parties, the following question was framed for its decision.
"A dismissed employee, (dismissed pursuant to conviction by the competent court with regard to the offenses registered against him and particularly not at the instance of employer), if reinstated on account of an order of acquittal by appellate court, would be automatically entitled for back-wages and all other consequential benefits, in absence of any Rules or Circulars framed or issued by the employer and particularly such employer is a "State" within the meaning of Article-12 of the Constitution of India?"
4. The petitioner had relied upon several judgments of the Hon'ble Apex Court as well as different High Courts and has also relied upon Regulation No. 241 of Service Regulations (amended upto 30.11.1983) of the Gujarat Electricity Board, which deals with the provisions of reinstatement of an employee who has either been dismissed, removed or suspended. It was also the case of each petitioner that he shall be treated at par with another employee, namely, R.J. Patel, since he was reinstated with full back-wages and granted all consequential benefits.
5 Learned Advocates appearing for the respondent also relied upon several judgments of the Hon'ble Apex Court and different High Courts and opposed grant of any relief as prayed by the petitioner.
6 After considering the rival submissions, the question which was
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framed (referred here-in-above) was answered in negative, which reads as under:
"In absence of any specific Rule framed by the Institution or Circular issued by it, an employee who faced criminal prosecution not at the behest of the institution, would not be entitled for any back-wages or any other consequential benefits, the period for which he was not working with the employer, on his reinstatement in service on account of acquittal by a competent court in a criminal case."
7 Subsequent to the pronouncement of the judgment, since the petitioners were relying upon the Regulations (Rule) 241 itself as well as the case of R.J. Patel, collected various material from the respondents under the provisions of the Right to Information Act. The material supplied by the respondent itself do not support the case of the respondents pleaded in their affidavit-in-reply as well as oral submissions made by the learned Advocate for the respondent, the present applications have been preferred.
8 The applicant, namely, Mr. Babubhai Ishwarbhai Patel, has already preferred an appeal before the Division Bench of this Court under the provisions of the Clause-15 of the Letters Patent. He has prayed to take stringent action for criminal contempt on the ground of filing incorrect affidavit. Another applicant, namely, R.B. Patel has prayed to recall the judgment itself on the ground that the judgment has been delivered either on false and incorrect information supplied by the respondents in their affidavit-in-reply or incorrect submissions made by the learned Advocate appearing for the respondents.
Page 5 of 20C/MCA/491/2014 CAV ORDER 9 Pursuant to the notices issued in the present applications, the
respondents have filed their reply opposing grant of any relief. The learned Advocates, who had appeared and argued the matter at the time of hearing of the writ petition on behalf of respondents, has also filed an affidavit denying the allegations levelled against him.
10 It is pertinent to note that the Advocate for the petitioners have now changed, however, same Advocate, who appeared in the writ petitions for respondents, has appeared in the present applications also.
11 Mr. B.T. Trivedi, learned Advocate, appearing for the applicant, has vehemently submitted that the respondent is a Government company and, therefore, it was expected that while dealing with the rights of its employees, it would act in fair and transparent method. He would submit that when specific contentions was raised by the petitioner with regard to the applicability of Regulation No. 241 to the petitioners in the memo of petition, instead of making its stand clear, an incomplete and vague reply was filed on behalf of the respondents through its Industrial Relations Officer on 19.11.2011. He would submit that it was the specific contention of the petitioner that Regulation No.241 would be applicable to those employees, who have been reinstated subsequent to their acquittal in criminal case,who is dismissed and/or removed and/or suspended employee, he shall be given pay, allowances, etc referred in the said regulation itself. However, in the another affidavit-in-reply dated 5.3.2012 by the concerned Industrial Officer, it was categorically stated that the said Regulation No. 241 would be applicable only with those cases, in which, the persons have been either dismissed or suspended or removed pursuant to a departmental inquiry and not pursuant to acquittal from a criminal case. He would submit that on this line itself, learned Page 6 of 20 C/MCA/491/2014 CAV ORDER Advocate appearing for the respondents had made submissions which have been recorded by the court and are reproduced in the judgment itself and particularly in Paragraph No.4.3, 4.5 and Paragraph No.6 of the judgment. He would submit that the respondents were aware that Regulation No. 241 is also applicable to the employees, who were subjected to criminal proceedings, which are now amply clear from the information supplied by the respondents under the Right to Information Act. By taking me through the Communication dated 11.2.2014, issued by Information Officer from Uttar Gujarat Vij Company Limited, he would submit that the company is following the provisions of Regulation-241, if, an employee was subjected to criminal case and was acquitted by a competent court. He would submit that, though, the petitioners were initially convicted by the Sessions Judge, they have been acquitted by the High Court and, therefore, by all means, they are treated to be, as if, they have never been found guilty of an offence. Mr. Trivedi would, therefore, submit that the respondents have not come before the court with clean hands and have suppressed material facts from the court so that they can achieve the result as per their wish and desire.
12 Mr. Trivedi, has also relied on a Communication dated 18.3.2014 issued by an Officer under the Right to Information Act of the Gujarat Vij Company Limited, by which it has been made clear that even, if, an employee is acquitted in appeal proceedings, while reinstating him, the procedure is required to be followed under Regulation No.241. He, therefore, would submit that the respondents ought to have disclosed the correct facts before the Trial Court either in the affidavit-in-reply or at the time of hearing of the writ petition when the specific queries were put-forward by the Court.
Page 7 of 20C/MCA/491/2014 CAV ORDER 13 The second contention of Mr. Trivedi is with regard to the
stand taken by the respondents when the submissions were made by the petitioner to give equal treatment to him since another employee Mr. R.J. Patel, who had faced criminal case, was given all benefits and whose case was considered as per Regulation No. 241 by the respondents. The respondents have not in clear terms replied this contention in their affidavit nor learned Advocate appearing for the respondent had correctly put forwarded the details of the proceedings with regard to the said R.J.Patel i.e. whether action was taken pursuant to the departmental proceedings or pursuant to criminal proceedings. He would submit that the said Mr. R.J. Patel was tried for the offenses punishable under the Prevention of Corruption Act, however, was acquitted by the Trial Court itself. He would submit that it was the case of the respondent that said R.J. Patel was subjected to departmental inquiry which is not correct since the applicant received an information from the Gujarat Vij Company Limited by communication dated 26.2.2014 wherein it has been made clear that no departmental inquiry was initiated against said R.J. Patel. He would submit that the said R.J. Patel was suspended pursuant to a criminal complaint lodged against him by Anti Corruption Bureau of Mehsana. By taking me through the letter dated 15.5.1990 issued by the Gujarat Electricity Board, which is now produced, he would submit that it is clear from the above communication that the said RB Patel was suspended pursuant to a criminal complaint. He, therefore, would submit that, if, the respondents would have disclosed the correct facts before the court, the rights of the petitioner would have been dealt with accordingly.
14 Mr. Trivedi, learned Advocate, has vehemently submitted that
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since the respondent is a government company, the officers, who filed three affidavits-in-reply before the court of law, are expected to disclose all the correct facts. He would further submit that by filing inappropriate and incorrect affidavits, they have tried to mislead the court, which would be a contempt and are of a criminal nature and, therefore, appropriate actions are required to be taken against them. Mr. Trivedi has also submitted that the Advocate, who advanced the case of his client, is an officer of the court at the first instance and is expected to submit before the court the correct facts, after verifying the same from the client and, particularly, where his client is a government, a government company or a corporation, etc. In support of his submission with regard to taking stringent action, he has relied upon a decision of the Apex Court in the case of S.P. CHENGALVARAYA NAIDU (DEAD) BY LRs vs. JAGANNATH (DEAD) BY LRs & ORS., as reported at AIR 1994 SC 853. He would submit that withholding of a vital document, which is relevant to a litigation, is a fraud committed with the court by that person. Such persons are required to be thrown out of the court on the said ground alone. He has also relied upon a decision of this Apex Court in the case of A.V. PAPAYYA SASTRY & ORS. vs. GOVERNMENT OF A.P. & ORS. as reported at AIR 2007 SC 546 and particularly drawn my attention on paragraphs 28 and 31 of the said judgment. He would submit that strict action is required to be taken against the respondents. He has also relied upon a decision of the Hon'ble Apex Court in the case of MARIA MARGARIDA SEQUERIA FERNANDES & ORS. vs. ERASMO JACK DE SEQUIERIA (Dead) through L.Rs. as reported at AIR 2012 SC 1727 and particularly has relied upon the observations made by the Hon'ble Apex Court in paragraph 31 onwards which deals with the truth as guiding star judicial process.
Page 9 of 20C/MCA/491/2014 CAV ORDER 15 By relying upon a decision of the Hon'ble Apex Court in the
case of DHANANJAJ SHARMA vs. STATE OF HARYANAN & ORS. as reported at AIR 1995 SC 1795. Mr. Trivedi submitted that it has been held by the Hon'ble Apex Court that filing of false affidavit in the court does not only obstructs but perverts course of justice and, therefore, such deponent is guilty of criminal contempt. He would submit that filing of false affidavit in the present case would require strict action against the person who has filed false affidavit in the matter.
16 The applicant of MCA No. 913 of 2014 has not filed any appeal under Clause-15 of the Letters Patent, however, has prayed to review and recall the judgment dated 7.1.2014 on the grounds which have been raised by another applicant. Learned Advocate Mr. Dhaval Vakil appearing for the applicant has adopted the arguments advanced by learned Advocate Mr. Trivedi appearing for another applicant.
17 On the other hand, learned Advocate Mr. Mayur Pandya, who had appeared in the writ petitions as well as in the present applications, has opposed these applications, which have been filed under the provisions of Order 47 of the Code. He would submit that the scope of review is very limited and the documents which have been produced along with the application cannot be taken into consideration while reviewing or recalling a decision. He would submit that sufficient opportunity was given to the petitioner to establish the case before the court which was not availed by any of the applicants. It was submitted that whether Regulation No. 241 is applicable or not, cannot be depend upon the information gathered subsequent to the determination of such question and when the court has already declared a judgment after examining the material available on the record. By taking me through Page 10 of 20 C/MCA/491/2014 CAV ORDER the affidavit filed by the same Industrial Relation Officer dated 9.7.2014 in the present applications, he would submit that there may be inaccurate reproduction of contents of submissions but the same has not affected the decision on the relevant issue, which was framed at the end of the hearing. He would submit that no false statement has been made in the affidavits filed by the respondents in the writ petition.
18. Mr. M.D. Pandya, learned Advocate, appearing for respondents, reply the contention about another employee - RJ Patel, would submit that his case is not at par with the present applicant. He would submit that it was never pleaded in the writ petition that RJ Patel was subjected to departmental inquiry and, therefore, there was no reply on that line. Therefore, he would not be in a position how the observations have been made in paragraph 4.5 of the judgment. He would submit that Shri R.J. Patel was never convicted, however, the applicants were at the first instance were convicted.
19. By taking me of his own affidavit dated 9.12.2015, he would submit that he has tried to explain the manner and method in which the case was argued by him at the time of hearing of the writ petitions. He would submit that the respondents have no personal grievance against the petitioner, who have already retired from the service and his case is not comparable with the case of said R.J. Patel. He would, therefore, submit that the application be dismissed.
20 Heard learned Advocates appearing for the respective parties. Since the review is sought for on the grounds stated hereinabove, the findings recorded by this court in the impugned judgment, the relevant paragraphs are required to be reproduced. The same read as under:.
Page 11 of 20C/MCA/491/2014 CAV ORDER "4.3 Mr. Pandya, learned Senior Counsel, would
further submit that sub-rule (1) of Rule 241 of the Service Regulations of the Board deals with the situation where the Board has to consider about the back wages, salary, etc in case of reinstatement of an employee only when an employee is suspended, dismissed and/or removed from the service pursuant to departmental inquiry initiated at the instance of the Board itself. These provisions are not applicable in the case of the present petitioners. Mr. Pandya, learned Senior Counsel, would submit that on close reading of this Chapter as well as the Regulations framed by the Board, it is clear that the Board has to pass as speaking order only in case where an employee has been dismissed or removed and/or suspended from the service pursuant to a departmental inquiry. He would further submit that it is not the case of the petitioners that their service s were terminated pursuant to the departmental inquiry initiated by the Board but they were dismissed from the service as they were convicted at the end of the trial in a criminal complaint lodged by a private party and not at the behest of the Board. He would submit that sub-rule (2) of Rule 241 of the Service Regulations of the Board would be applicable when an employee has been fully exonerated, which would mean that, he has been exonerated from the charges levelled against him by the department itself or in the case of suspension that it was wholly unjustified, the employee shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be.
4.5 In respect to the contentions raised by the petitioners about not considering the petitioners at par with one Mr. R.J. Patel, Mr. Pandya, learned Senior Counsel, would submit that in the case of Mr. R.J. Patel, he was charge-sheeted by the Department and pursuant to the Departmental inquiry, his services came to be terminated. Mr. Pandya, learned Senior Counsel, for the respondents would submit that he was Page 12 of 20 C/MCA/491/2014 CAV ORDER fully exonerated from the charges levelled against him in the departmental inquiry and, therefore, his case was considered under Regulation-241 of the Board and all benefits were granted to him. Mr. Pandya, learned Senior Counsel, for the respondents , therefore, submitted that the facts of the present case are not comparable with the case of Mr. R.J. Patel.
21 The findings read as under:
"6.2 If the case on hand is perused, neither it is the case of the petitioners nor any material was produced by them which would go to suggest that similar circular has been issued by the Board to deal with the case when an employer who has been reinstated in service at the end of trial if, any, acquittal order is passed by a competent court. Regulation 241 of the Service Regulations of the Gujarat Electricity Board would not certainly be applicable and it cannot be said that acquittal means exoneration. The person would be exonerated from the charges levelled against him only in case of departmental inquiry and a person would be acquitted in case of criminal prosecution, Rule 241(2) is not applicable. Therefore, the principle laid down by the Apex Court in the case of Jaipur Vidyut Vitran Nigam Limited vs. Nathu Ram (supra) would not be applicable in the facts and circumstances of the present case."
22 Now I would like to deal with the contentions raised by the petitioner in the memo of petition and, therefore, relevant paragraphs i.e. paragraph 17 of the Writ Petition No. 2934 of 2000 is reproduced below:
"17. The petitioner further respectfully submits that the impugned order passed by the respondent - authority at Annexure-E to the petition, is nothing but a glaring example of arbitrary exercise of power keeping vengeance against the petitioner. It is pertinent to note that there is a specific policy in the Page 13 of 20 C/MCA/491/2014 CAV ORDER respondent authority itself how to give effect to such situation where the employee is honorably acquitted and for which alone he has earlier punished by passing the order of dismissal. It is submitted that there are several employees who have been facing almost similar position, in past, Mr. R.J. Patel, Junior Engineer from Mehsana Division and one Mr. Barot - the Accountant who were facing similar charge of ACB, but upon their acquittal, they have been given not only actual promotion with all consequential benefits but have been treated as if no order of dismissal of discontinuance, was passed against them. It is further to be noticed here that though they were not facing the order of clean acquittal, in view of the consisting policy and practice, the respondent Authority has given them all consequential benefits as it was the consisting policy of the respondent authority. The similar is the case with one Mr. Rajguru, Deputy Engineer, who redhanded caught in ACB case in 1994 at Una, but the moment, competent court granted him order of acquittal, he was given all consequential benefits and he also was reinstated with all benefits in the same zone. Similar is another case Mr. M.S. Patel who lastly serving at Mehsana as Executive Engineer, but here also, though, there was no clean acquittal, the effect was given by giving all consequential benefits and to the reasonable knowledge of the petitioner even interest amount has also be given and thereby, the respondent authority has clearly acted with malice and prejudice against the petitioner by passing the impugned order as if the petitioner has not served for all the way with respondent - authority. It is under these set of circumstances, since this being a clear discriminatory treatment meted out to the petitioner is clearly violative of Articles 14 and 16 of the Constitution of India and, hence, the same is required to be corrected forthwith by issuing an appropriate writ, order or direction."
23 The reply to the said paragraph in the affidavit dated 19.11.2011 is in paragraph 6 which reads as under:
Page 14 of 20C/MCA/491/2014 CAV ORDER "The petitioner has contended that he is being discriminated against the other similarly situated employees and has cited names of four employees in para -17 of the petition. The contention is not tenable on facts. Shri R.J. Patel was never convicted by any court and his case was not a case of conviction by trial court leading to termination of service and reinstatement thereafter on acquittal. Shri K.D. Barot has never faced criminal trial or convicted. Shri K.H. Rajguru is facing trial but yet not convicted by court. Shri M.S. Patel was a case of dispute regarding correct date of birth. The cases cited are not comparable on facts."
24 The petitioner had filed several rejoinders in the petition and had raised contentions about the applicability of Regulation No.241. While replying to the same, an affidavit dated 5.3.2012 was filed by the respondent and the contentions raised by the petitioner was dealt with in Paragraph No.2 of the affidavit.
"The petitioner has in his rejoinder referred to the contents of the judgment of the High Court rendered in Criminal Appeal No. 711 of 1991 producing only copy of the operative part of the judgment. I crave leave to refer to the contents of the judgment when produced to show how the petitioner's reading thereof is not accurate and the case is not honourable acquittal but that were benefit of doubt is given to the accused. The action taken by the respondents as complained of is in keeping with the judicial pronouncement of the Apex Court. In as much as it was not on account of conduct of the respondent but that of the petitioner that he had disabled him from rendering service and in fact had not rendered any service during the relevant period and the order of reinstatement without any consequential benefits whatsoever as passed is in accordance with law. Contention to the contrary is not sustainable on facts and in law. It is further submitted that apart from the aspect that prima facie SR 241 appears to be dealing Page 15 of 20 C/MCA/491/2014 CAV ORDER with cases dealt with departmentally the authority has on facts passed a specific order as far as backwages and other benefits are concerned and has not treated period of termination as that spent on duty."
25 The pleadings referred hereinabove, the additional documents produced along with the present application, lead this Court to observe as under.
26 The petitioner has in his rejoinder referred to the contents of the judgment of the High Court rendered in Criminal Appeal No.711 of 1991 producing only copy of the operative part of the judgment. I crave leave to refer to the contents of the judgment when produced to show how the petitioner's reading thereof is not accurate and the case is not of honourable acquittal but that where benefit of doubt is given to the accused. The action taken by the respondents as complained of is in keeping with the judicial pronouncement of the Apex Court. Inasmuch as it was not on account of conduct of the respondent but that of the petitioner that he had disabled him from rendering service and in fact had not rendered any service during the relevant period and the order of reinstatement without any consequential benefits whatsoever as passed is in accordance with law. Contention to the contrary is not sustainable on facts and law. It is further submitted that apart from the aspect that prima facie SR 241 appears to be dealing with cases dealt with departmentally the authority has on facts passed a specific order as far as back wages and other benefits are concerned and has not treated period of termination as that spent on duty.
27 That Mr. R.J. Patel, who was a Junior Engineer with GEB was suspended pursuant to a criminal complaint lodged against him by Anti Page 16 of 20 C/MCA/491/2014 CAV ORDER Corruption Bureau of Mehsana. He was suspended pursuant to lodgment of the said complaint. He was acquitted by the Trial Court. Since he was acquitted, all back-wages and consequential benefits were given w.e.f. 5.8.1994. The same reflects in the communication dated 26.2.2014 issued by the Office of the respondents, under the Right to Information Act. The Communication dated 18.3.2014 issued by the officer under the Right to Information Act, prima facie, establishes that even if an employee is acquitted in appeal proceedings, he would be entitled for relief under the provisions of Regulation 241.
28 It is true that the writ petitions were heard extensively and the documents which are now produced were not on record for consideration of the court. Therefore, while hearing the matter and dealing with the submissions made by either sides and appreciating their contentions raised in the memo of petition and reply thereto, I am of the firm view that Regulation 241 has been dealt with as if the same would be applicable only in the case of an employee, who has been dismissed, removed or suspended pursuant to the departmental proceedings only. If the relevant paragraphs of two affidavits of the respondents filed in the writ petitions are perused, an impression is created in the mind that Regulation-241 would not be applicable to the petitioners since they were acquitted in appeal proceedings. Therefore, the observations in Para 4.3 and 4.5 are made keeping in view the affidavit filed by the respondent as well as the submissions made by the learned Advocate appearing for the respondent and accordingly I have dealt with the case of the petitioner as, if, the same were not applicable and did not consider the case of the petitioner accordingly.
29 The judgments relied upon by the learned Advocates Mr.
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Trivedi are not dealt with in detail since I have found that there was no intention on the part of the respondents to make a false statement either in the affidavit-in-reply or additional affidavits. Since I do not want to take any action against the concerned Lawyer, who appears for the respondents, some of the judgments which deal with the conduct of the Lawyer in the court proceedings, the same not have been dealt with in detail.
30. I am not sure what would have been the findings if all the facts were placed before the court since there may be a scope for either side to plead their case with regard to comparing the case of Mr. R.J. Patel with the present petitioners. The submission made by Mr. Pandya, with regard to producing all the documents along with the present application should not be looked into, cannot be accepted since the documents are collected under the Right to Information Act, which deals with the procedure adopted by the respondent company while dealing with the case of an employee under Regulation 241. It is not expected from a citizen that each and every detail would be available with regard to his co-employee, who had been dealt with separately in another case. Now, citizens are getting the full detail under the Right to Information Act, and that, in my opinion, they have all rights to produce the same before the court for correct and true adjudication of a matter and to come to the right conclusion in a case.
31. As far as taking stringent action against the respondents are concerned, the affidavits are not a total falsehood which would prompt this court to take action for contempt and that too for criminal contempt.
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32. The judgments relied upon by the learned Advocates Mr. Trivei are not dealt with in detail since I have found that there was no intention on the part of the respondents to make a false statement either in the affidavit-in-reply or additional affidavits. Since I do not want to take any action against the concerned Lawyer who appears for the respondents, some of the judgments which deal with the conduct of the Lawyer in the court proceedings, the same have not been dealt with in detail.
33. I appreciate the affidavit filed by the learned Advocate who appears for the respondents and his explanation, however, I do not find any malice or intention on his part in arguing the case of his client. Therefore, I refuse to take any stringent action against the respondents or the learned Advocate appearing for the respondents. However, I would certainly like that the petitions are required to be heard afresh keeping in mind all the relevant documents.
Hence, following order:
"Judgment and Order dated 7.1.2014 passed by this court in Spl. C.A. No. 4098 of 2008 with Spl. C.A. No. 2934 of 2008 is hereby recalled.
It would be open for the petitioners to file amendment application with regard to their claims under the provisions of Regulation-241 as well as their claim of equal treatment like other co-employees. It would be open for the petitioner to raise all the contentions and produce relevant documents in the Writ Petition on or Page 19 of 20 C/MCA/491/2014 CAV ORDER before 12th June, 2015.
It would be open for the respondents to file affidavit- in-reply to the amended application within a period of three weeks thereof .
The matter be listed for final hearing in the week commencing from 13th July, 2015." before appropriate court. Present applications stands disposed of accordingly.
(A.J. DESAI, J.) PNNAIR Page 20 of 20