Gujarat High Court
Zaverbhai vs State on 5 March, 2010
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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SCA/7542/1999 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7542 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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ZAVERBHAI
T PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
NIKHIL KARIEL FOR TANNA ASSOCIATES
for
Petitioner(s) : 1,
MR JK SHAH, ASST GOVERNMENT PLEADER for
Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 05/03/2010
ORAL
JUDGMENT
1. The petitioner herein has prayed to quash and set aside the orders dated 05.02.1999 & 08.02.1999 passed by the respondent no. 2 terminating the petitioner from his services as well as the order dated 27.02.2004 also passed by the respondent no. 2 whereby the representation of the petitioner was rejected.
2. The brief facts leading to the filing of the present petition could be set out as under:
2.1 Pursuant to an advertisement issued in The Times of India dated 01.01.83, the petitioner applied for the post of Rubber Foot Technician. The said post called for applicants having ITI certificate in Rubber Technology and 3 years experience in the manufacture of rubber goods in a reputed company or 5th standard pass and 10 years practical experience in a recognised and/or reputed rubber goods manufacturing company. After due interview, the petitioner was appointed on 18.05.1983 by the then respondent no. 3.
2.2 However, on 21.03.1997 the petitioner was served with a charge sheet wherein it was stated that he had obtained and submitted false certificate of experience regarding his having worked at Shakti Rubber Industries at Odhav and that during the interview for the post of Rubber Foot Technician one of the members of the Interview Committee was Workshop Manager who was a blood relative of the petitioner.
2.3 The petitioner submitted a detailed reply to the charge sheet on 10.11.1997. Thereafter, an inquiry was conducted and on completion the report was submitted to the Disciplinary Authority. The Disciplinary Authority i.e. respondent no. 2 vide orders dated 05.02.1999 and 08.02.1999 terminated the service of the petitioner on the ground of committing fraud. Being aggrieved by the said termination orders, the petitioner preferred the present petition.
3. Mr. Nikhil Kariel, learned advocate appearing for Tanna Associates for the petitioner has submitted that before proceeding with the submissions, he would like to draw the attention of this court to the fact that during the course of final hearing of this petition, this court vide order dated 21.11.2003 directed the petitioner to prefer a representation within 15 days and the respondent no. 2 was directed to consider the representation of the petitioner sympathetically in consultation with the Secretary, Health and Family Welfare Department as well as the Director of the Vigilance Commission of State of Gujarat within a period of three months from the date of receipt of the representation. Pursuant to the order dated 21.11.2003, the petitioner preferred a representation and the same was rejected by the respondent no. 2 after due consultation with the various authorities. The impugned order dated 27.02.2004 is also challenged in this petition by way of amendement.
3.1 Mr. Kariel has submitted that in respect of the charges regarding submission of false and forged documents as well as the fact that a blood relative of the petitioner was one of the members of the interview committee, the delay of 13 years had worked against him and had really prejudiced him in proving the same otherwise. It was because of the unreasonable delay involved that the petitioner could not prove his bonafides and could not prove that the charges were false and baseless.
3.2 Mr. Kariel has also submitted that the respondents were duty bound to check and verify the documents and certificates of the petitioner during the course of entire interview process. The respondents cannot doubt the veracity of the documents after such an inordinate delay which will disable the petitioner to prove his bonafides.
3.3 Mr. Kariel has tried to explain the court that the petitioner had been working between the period January 1973 to January 1983 in the said Shri Shakti Rubber Industries at GIDC Estate, Odhav. However, when the genuineness of the experience certificate given by the proprietor of the said factory was challenged, the petitioner tried to locate the said factory and he got an affidavit of one Shri Jivanlal Vora, proprietor of Ramdev Traders, the firm which is running in place of the erstwhile Shri Shakti Industries. Secondly, in respect of a blood relative being part of the interview committee, all or rather most of the persons who were a part of the committee had retired and relocated which made it difficult for the petitioner to prove that the committee was already informed regarding the relationship and it was with due knowledge of the said fact that the blood relative was asked to sit in the committee.
3.4 Mr. Kariel has taken this court to the inquiry report at page 68 and drawn the attention of this court to page 72 wherein the existence of Shri Shakti Rubber Industries is doubted. He has submitted that these are small units and might have been closed down due to financial exigencies or some other reasons. He has however relied on the experience certificate issued by the proprietor of the said industry to show that the petitioner was working from 1973 to 1977.
3.5 In support of his submissions, Mr. Kariel has relied upon a decision of the Apex Court in the case of State of Andhra Pradesh vs. N. Radhakrishnan reported in 1998 AIR SCW 1629 and submitted that the delay in initiating proceedings which is the submission in the present case is far more crucial and dangerous than the delay in concluding the proceedings which is the subject matter of the said decision.
4. Mr. J.K. Shah, learned AGP appearing for the respondent State has supported the stand of the respondent authorities. He has strongly contended that initiation of inquiry in case of forged and false documents presented by any employee in a government job can be done at any time during the tenure of the employee's service since the petitioner has taken advantage of some non-existing documents which has prejudiced the case of other eligible candidates. He has contended that in such serious cases, the petitioner cannot take advantage of delay and lapses and the court may not take a sympathetic view on such grounds.
4.1 Mr. Shah has relied upon a decision of the Apex Court in the case of Addl. General Manager - Human Resource, Bharat Heavy Electricals Ltd. vs. Suresh Ramkrishna Burde reported in 2007(5) SCC 336 and submitted that the present case of submission of false and forged documents should be viewed seriously by this court. He has submitted that the services of the petitioner were rightly terminated by the respondent no. 2.
5. Mr. Kariel, in the alternative has submitted that the post of Rubber Foot Technician is still vacant and therefore, without entering into the merits of the matter, considering the petitioner's tenure of service with the department for a period of around 13-14 years, this court may consider the case of the petitioner sympathetically more particularly because such a service is not available in the entire State of Gujarat. He has submitted that without considering the case of the petitioner for backwages or continuity of service for the interregnum period, the petitioner may atleast be allowed to work at the relevant post.
6. This court has heard learned advocates for both the sides and perused the papers on record. The petitioner during the course of interview had submitted a certificate showing his experience with the Shri Shakti Rubber Industries from January 1973 to December 1977 as a part-timer and from January 1978 to January 1983 as a full-timer. It is the case of the petitioner that out of these two certificates, the petitioner at present has with him a copy of only one certificate for the period January 1973 to January 1977 which he worked as a part-timer.
7. It is required to be borne in mind that considering the birth date of the petitioner, the petitioner was a minor in the year 1973. The authorities have considered that during the course of studies, such experience of factory is not possible and further that it was found during inquiry that the factory was not in existence at all. The respondents gave the petitioner an opportunity to establish the fact that the documents are not forged by proving that the said factory was in existence during the relevant time which the petitioner could not prove.
7.1 The petitioner produced an affidavit of one Shri Jivanlal Vora, proprietor of Ramdev Traders- the concern functioning at the place where Shri Shakti Industries used to function but the same shall not be enough to establish the case in favour of the petitioner. This court is of the opinion that the aspect of delay cannot be said to have completely damaged or prejudiced the case of the petitioner. The petitioner could have established the existence of the factory by producing electricity bill or the register of GIDC during the relevant time or any such documents from GIDC such as shareholder certificate or payment of tax receipt by the factory etc. In absence of any such cogent material on record, the respondent authorities have proceeded on preponderance of probabilities which is quite just and proper.
8. The decision of the Apex Court in the case of State of Andhra Pradesh (supra) relied upon by learned advocate for the petitioner, more particularly, para 19 reads as under:
"It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unncessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature or charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations."
8.1 In the present case, the departmental inquiry was concluded and the petitioner was served with the termination notice. It is true that the initiation of the inquiry was delayed by around 13 years but the same cannot be made a platform by the petitioner to escape from the illegality committed by him. In absence of any material proving the existence of the factory and his experience therein, the respondent department initiated inquiry proceedings after giving him reasonable opportunity.
8.2 In this context, as per the decision of the Apex Court in the case of Addl. General Manager-BHEL (supra), the principle which is required to be followed by this Court is that, where a person secures an appointment on the basis of a false certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated.
9. However, keeping in mind the overall facts and circumstances of the case and the statement of the learned advocate for the petitioner that the post in question is still vacant, this court is inclined to grant some relief to the petitioner in view of the fact that the service of Rubber Foot Technician is not available in Gujarat. The petitioner is having an experience of about 13 years in this field and therefore, keeping in mind the interest of the public at large, more particularly the poor and needy who need not travel to other states to avail benefit of such service, the petitioner can put into use the experience gained by him till date.
9.1 Thus, looking to the peculiar nature of duty of the petitioner, the respondent authorities are directed to consider the case of the petitioner for taking him back in service, since the post is still vacant as stated hereinabove by Mr. Kariel. It is made clear that the previous service of the petitioner shall only be considered for continuity of service and the interregnum period shall not be considered for backwages or for any other purpose in view of the principle of dies non. This order shall not be treated as a precedent.
10. In view of the above, petition is partly allowed. Rule is made absolute to the aforesaid extent.
(K.S. JHAVERI, J.) Divya// Top