Gujarat High Court
J A Patel vs Gujarat Water Resources Development ... on 11 March, 2022
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5682 of 2008
With
CIVIL APPLICATION (FOR RECALL) NO. 1 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 5682 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
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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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J A PATEL
Versus
GUJARAT WATER RESOURCES DEVELOPMENT CORPORATION LTD. & 1
other(s)
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
MR DG CHAUHAN(218) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 11/03/2022
ORAL JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :-
Page 1 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 "22.(A) Quashing and setting aside the order dated 24.11.2006 sending the petitioner on deputation and the letter dated 25.11.2006 relieving the petitioner for deputation and to declare that the petitioner continues to work as a Work-charged Operator and direct the respondents to pay him all the consequential benefits from 25.11.2006 including back wages with 12% interest.
(B) Quashing and setting aside the order dated 31.08.2007 removing the petitioner from service and to reinstate him with all consequential benefits including back wages with 12% interest.
(C ) During the pendency and final disposal of this petition, respondent no. 2 may be directed to allow the petitioner to discharge his duties as Work-charged Operator under him.
(D) To grant such other and further relief as may be deemed fit."
2. The background of facts which has led the filing of present petition is that petitioner was appointed as 'Rojamdar Chowkidar' on 28.11.1984 and by order dated 04.04.1991 was appointed as 'Rojamdar Operator' with effect from 01.03.1991. Later on, as per the say of the petitioner, he was posted as Work-charged Operator vide order dated 10.01.2007 with effect from 01.05.2006, which post he held till his removal from service by impugned order dated 31.08.2007.
2.1. The case of the petitioner is that a Circular came to be issued by respondent - Corporation on 09.10.2006, whereby it was decided to send its employees of different cadres on deputation to the various offices of State Government, initially for a period of two years and the subordinate offices of the Page 2 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022 C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 Corporation were directed to send necessary details of the employees willing to be sent on deputation vide letter/circular dated 23.11.2006. The respondent - Corporation laid down number of employees to be sent on deputation on the terms and conditions which are mentioned therein and in view of that, it appears that respondent no. 2 by order dated 24.11.2006 prepared a list indicating 100 employees for being sent on deputation to Rajkot Irrigation Circle of the State Government with almost similar terms and conditions as stated in the Circular. The name of the petitioner was figuring in this order dated 24.11.2000 at Sr. No. 61 and in view of this, by letter dated 25.11.2006, respondent no. 2 relieved the petitioner from office hours for deputation. On receipt of the said order, the petitioner requested the authority to cancel the order of deputation insofar as it relates to the petitioner since he is not inclined to go for deputation and represented by way of communication dated 01.12.2006.
2.2. It is the case of the petitioner that Deputy Executive Engineer, Morbi of the State Government vide order dated 22.12.2006 informed the petitioner to report for duty since his last pay drawn certificate was received by him. In response to the said intimation, the petitioner wrote a letter on 07.01.2007 and reiterated his request for cancellation of the deputation and has indicated that he is not reporting for duty. In the meantime, the Deputy Executive Engineer, Vadodara vide letter dated 29.12.2006 called upon the petitioner to produce the Circular of the Government if any, to the effect that the Rojamdar cannot Page 3 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022 C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 be transferred/deputed out of District. In response to the said communication, the petitioner informed the Deputy Executive Engineer that efforts are being made by him to get a copy of the Circular and as soon as the same is available would be forwarded and vide letter dated 22.01.2007, the petitioner requested the Executive Engineer, Vadodara to supply him a copy of the terms and conditions of the 'Rojamdars' as also a copy of the Discipline and Appeal Rules of the Corporation. The said request was reiterated by another communication dated 29.01.2007 and in turn on 02.02.2007, the Executive Engineer supplied a copy of the terms, but as regards the Discipline and Appeal Rules, it was indicated to visit the office and see the same at his costs.
2.3. It is further the case of the petitioner that vide letter dated 22.01.2007, respondent no. 2 in turn called upon the petitioner to sent his explanation within a period of seven days as to why his service should not be terminated since is he is not resuming the duty at the work place on deputation. The petitioner in response to the said letter informed the authority vide letter dated 10.02.2007 that as per condition no. 12 of the terms and conditions supplied to him a Rojamdar can be transferred to any office within the jurisdiction of the Corporation, but his transfer is not made within its jurisdiction, but he was sent on deputation to the Irrigation Department of the State Government and the same being not permissible, a request is made to recall the order of deputation. The Deputy Executive Engineer vide letter dated 01.03.2007 again asked the Page 4 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022 C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 petitioner to report for duty at the transferred place in accordance with the above condition no. 12 otherwise disciplinary action shall be taken and it was informed that later on also, the pressure is built upon the petitioner to resume the duty.
2.4. The petitioner has further asserted in the petition that on 11.04.2007, respondent no. 2 sent the charge-sheet containing two charges namely, disobedience of the orders of the superior and not reporting at the place of deputation. The said charge sheet was responded by the petitioner by submitting defence statement on 16.05.2007, but respondent no. 2 as usual not accepted the explanation and in turn served a show cause notice on 06.07.2007 calling upon the petitioner as to why penalty under Rule 40 sub-rules 3, 18, 41 and 50 of Discipline and Appeal Rules, 1984 of the Corporation should not be imposed upon. On 16.07.2007, petitioner asked for voluntary retirement from service on 16.07.2007, but the same was refused vide communication dated 10.08.2007 and vide letter dated 06.08.2007, it was also informed that explanation was not found to be satisfactory and as such, it was decided to inflict penalty of removal. Since procedure for imposing major penalty was followed, resultantly on 31.08.2007, major penalty of removing from service from 25.11.2006 came to be inflicted upon the petitioner which has given rise to the filing of the present petition under Article 226 of the Constitution of India.
3. It appears from the record that the Court originally on Page 5 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022 C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 02.04.2008 was pleased to issue notice and later on after hearing both the sides on 29.12.008, the petition came to be admitted and after adjourning from time to time, the same has now come up for consideration finally before this Court in which, learned advocate Ms. Mamta Vyas has represented the petitioner, whereas Mr. D.G. Chauhan learned advocate has represented the respondent Corporation.
4. Learned advocate Ms. Mamta Vyas appearing on behalf of the petitioner has vehemently contended that the petitioner is a Work-charged employee and as such, he is not supposed to be sent on deputation even on the basis of policy framed by the respondent themselves. Apart from that, in view of the policy a specific consent is required to be obtained from the petitioner if transfer is to take place. According to learned advocate Ms. Vyas, the penalty which has been imposed upon is not only disproportionate penalty, but victimization of employee because consent is not given for deputation. It has been submitted that bootless career of about 22 years is put to end in an arbitrary manner by the respondent Corporation. The charges which are levelled against the petitioner are clearly encircling around the issue of deputation, which the petitioner is requesting not to give effect to and as such, with vengeance against the petitioner departmental proceedings have been undertaken, which has ultimately led for dismissal and hence removal of the petitioner is a clear example of arbitrariness on the part of the Corporation which deserves to be deprecated. Learned advocate Ms. Vyas has further contended that the petitioner ordinarily Page 6 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022 C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 Class-III work-charged employee is not liable to be transferred even on deputation from Vadodara District to Rajkot and has also submitted that even during the course of inquiry process also, no procedure is observed while imposing the major penalty. The Discipline and Appeal Rules are not permitting the Corporationy to take such a decision, especially when the petitioner is merely a Work-charged Operator. Hence, looking to the overall circumstances prevailing on record against the petitioner being arbitrary in nature, the Court may kindly allow the petition by granting the reliefs as prayed for. It has further been contended that on the contrary since the petitioner was not in a position to go at a transferred place even on deputation, has requested the Corporation to accept letter dated 16.07.2007 for voluntary retirement, but that having not accepted is also an incident of arbitrariness and vengeance against the petitioner. Hence, action being mala fide, same be quashed and set aside by granting the reliefs as prayed for in the petition.
5. As against this, learned advocate Mr. D.G. Chauhan, appearing on behalf of respondent no. 2 - Corporation has submitted that the petition itself is a merlitess. On the contrary, an attempt is made to mislead this Court, by projecting in grounds as if the petitioner was a permanent employee holding a post of Work-charged Operator, but in reality, he was merely a Work-charged employee and nothing beyond that. On the contrary, on page 16 is the extract of list containing the name of petitioner, wherein in Column 4 it is reflecting that he is a 'Rojamdar Operator' (Daily Rated), but apart from that, the Page 7 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022 C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 Corporation has granted enough accommodation and time to resume his duty not once, but on several occasions, but it is the petitioner who on his own volition has refrain from obeying the instructions of the Corporation along with other employees who resumed. According to learned advocate Mr. Chauhan, the petitioner is supposed to resume the duty as per the instructions of the Corporation and the terms and conditions of the employment itself is indicating that if the instructions are not to be obeyed or violated, same be treated as an act of indiscipline. On the contrary, learned advocate Mr. Chauhan has submitted that the act of not obeying the instructions itself amounts to misconduct and therefore, the authority has rightly proceeded with. Apart from that learned advocate Mr. Chauhan has further submitted that in view of the list attached with his affidavit-in- reply, it is not only the petitioner who is sent on deputation, but there are as many as 100 employees on Work-charged and Rojamdar Operators have been sent on deputation and as such, there is no pick and choose policy applied in any form or only the petitioner is sent on deputation is not the case also. Learned advocate Mr. Chauhan has further submitted that the petitioner was intended to be retained in service though petitioner being surplus daily wager. The petitioner himself invited this action and as such, there is hardly any reason available for the petitioner to agitate against discontinuance. On the contrary, dire necessity arose for the respondent Corporation to sent the petitioner along with several others on deputation and by referring to page 70, learned advocate Mr. Chauhan has indicated that the said deputation was not for full period of two Page 8 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022 C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 years, but it was only for a brief period commencing from 25.11.2006 to 10.05.2007 only as clearly indicated in an order dated 24.11.2006. Learned advocate Mr. Chauhan has submitted that since the petitioner has outrageously violated the instructions, charges were levelled against the petitioner and during the course of departmental inquiry, though adequate opportunity of representation has been given, ultimate action is taken after full compliance of principles of natural justice. As substantial procedure has already been undertaken while taking action against the petitioner and as such, it is not open for the petitioner to agitate that in an arbitrary manner the Corporation has discontinued or penalty has been imposed upon which may violate Article 14 of the Constitution of India.
5.1. Learned advocate Mr. Chauhan has submitted that looking to narration which has been mentioned in the detailed affidavit- in-reply and in view of the fact that there is no discrimination, there is no arbitrariness, there is no pick and choose policy and hence, the action which has been initiated can never to be violative of any mandate of law. On the contrary, the proportionality of penalty is depending upon the circumstance of the case on hand. Hence, the authority when thought it fit to discontinue the petitioner from service by inflicting the penalty, it is not open for the petitioner to agitate in a writ jurisdiction the dis-proportionality of penalty. Hence, learned advocate Mr. Chauhan has requested that cumulative effect of the record and the affidavit-in-reply, no case is made out by the petitioner which may call for any interference and hence requested to Page 9 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022 C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 dismiss the petition.
6. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, it appears to this Court that on account of necessity which has been projected by the respondent Corporation in a detailed affidavit-in-reply of work-charged as well as daily rated operators were to be shifted and therefore, deputation was needed to be executed and as such, deputation was required and further, the record indicates that it is not only the petitioner, but there are several in numbers who have been sent on deputation as stated in communication dated 24.11.2006 and as such, this is not the case in which it can be assumed that any pick and choose policy is adopted by the respondent Corporation against the petitioner, nor any arbitrariness is reflecting from the record.
6.1. Yet another circumstance which is also not possible to be ignored is that this deputation was merely for a brief period as stated above and not for full period of two years and this deputation was needed as already projected by the respondent Corporation in affidavit-in-reply which the Court deems it proper to reproduce hereunder :-
"4. That the Gujarat Water Resources Development Corpn. Ltd., is a government Company incorporated under the provisions of the Companies Act, 1956. It is working under the direct control of Narmada Water Resources, Water Supply and Kalpsar Department of the State of Gujarat. The respondent Corporation is bound to obey all the instructions, directions and orders of the State Page 10 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022 C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 Government. The main object of the Corporation is to develop water resources in the State of Gujarat and to develop, harness and energise tube-wells and to supply water to the farmers for irrigation purpose, etc. I say that Narmada Water Resources, Water Supply and Kalpsar Department of the State of Gujarat by letter dated 21-11- 2006 directed the Respondent Corporation to allocate surplus employees forthwith to the Rajkot Irrigation Circle for irrigation work for winter crop. Accordingly, surplus employees were sent on deputation to the Rajkot Irrigation Circle for irrigation work for winter crop.
5. I say that to run the tube-wells, power-wells and water-wells etc. in the State of Gujarat, in the year 1985, the Respondent Corporation had the following set up:
1. Tube-well Operator - One for each Tube well
2. Clerk - One for every 15 Tube wells
3. Mechanical gang - for every 60 tube wells 4 to 8 Helpers
4. Wire-men - One for every 40 Tube wells.
5. Oilman - One for Tube wells run through Diesel oil.
6. At this stage, it is relevant to point out that in the year 1990, there were in all about 2949 tube-wells. But, thereafter, gradually the tube-wells have been substantially reduced due to financial as well as administrative problems. Details of the tube-wells operated were a under:
Year No. of Tube wells
1990 2949
1995 2488
2000 1293
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C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022
2003 885
2005 388
2007-2008 53
7. It can be seen from the above figures that number of tube-wells maintained/in operation were reduced gradually and at present, there are only 53 tube wells are run and managed by the Corporation. I say that the Corporation has no other sources of income of its own.
The financial position of the Corporation is in doldrums and is deteriorating day by day.
8. I further state that as on 31-3-1998, about 5718 temporary, work charged and daily wager employees were working in the Corporation, but, subsequently on account of depleted financial position, as per the directions of the State Government, the Corporation had introduced Voluntary Retirement Scheme. Under the said Scheme, about 1400 employees (881 tube well operators) of different categories had opted for retirement and left the service of the Corporation on receiving their legal benefits. Consequently, all the posts have been abolished. 1 submit that as on 31-3-2003 about 4408 employees of different categories were working in the Corporation. As on 31-3-2003, out of 4408 employees, about 1200 tube- well operators - daily wagers, work charged and temporary are in surplus including the petitioner and the Corporation was paying idle wages. I further submit that the Corporation is having over-staff and overall administrative expenses are on very higher side and the Corporation is not in a position to bear financial burden."
7. From the aforesaid circumstances which are narrated in the affidavit-in-reply, this Court is of the opinion that directing the petitioner to go on deputation is not an act of arbitrariness nor any act of mala fides or pick and choose policy.
Page 12 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 7.1. In the aforesaid background of case if perusal of the charges levelled against the petitioner to be looked into, it appears that the terms of appointment are clearly indicating as stated above that if an employee is not obeying the instructions it is to be treated as an act of indiscipline and therefore, for such acts, the authority has proceeded against the petitioner by framing of charge and upon conclusion of inquiry, an order of penalty is passed against the petitioner. It is not projected by the petitioner cogently in any form that there is any gross violation of principles of natural justice during the course of inquiry and as such, when adequate opportunity has been extended and when the order of penalty is imposed upon after following proper procedure established by law, this Court is of the opinion that the penalty which is imposed is well within the domain of the Corporation, may not be interfered with unless there is any apparent illegality, which in this case is not pointed out to the Court.
8. The record further indicates that on several occasions, the petitioner has been granted opportunity to meet with the demand of deputation along with several other co-employees, but it is the petitioner who choose not to obey the said instructions and invited action and it is his own conduct which has resulted into action against him.
9. So far as the applicability of circular is concerned, it appears that the said circular is whether applicable to the Work charged employees or not is also in serious doubt, and apart Page 13 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022 C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 from that the circular would not confer any absolute right in favour of the employee. Furthermore, perusal of the said circular is indicating that on the contrary, the eventuality of sending on deputation for a period of two years is stated, but here as indicated above, only for a brief period the petitioner along with other 100 employees have been ordered to be sent on deputation. As a result of this, transfer on deputation ought not to have been disobeyed by the petitioner.
9.1. So far as taking of voluntary retirement is concerned, rejection of it is not possible to be branded as an arbitrary or invalid act since it has been clearly pointed out that this voluntary retirement is stated to be not applicable to a daily rated or work-charged employee and the petitioner has not pointed out in any form that the said voluntary retirement benefit is available to class-IV employees like him and hence in the absence of any such material being on record, it is not possible for this Court to come to a conclusion that voluntary retirement rejection thereof is invalid. On the contrary same was not challenged at a relevant time and allowed respondent to proceed against him.
10. A further perusal of the order of dismissal is reflecting that during the course of inquiry against the petitioner, appropriate opportunity has been given at every stage and as such, if the petitioner has remained irresponsible, he cannot agitate on the issue of non compliance of principles of natural justice. Hence, from the overall consideration, there is hardly any reason to Page 14 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022 C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 declare the impugned order as invalid. From perusal of the order, it further transpires that effective representation even in writing as well as oral, a specific opportunity was given on 16.07.2006, but it is the petitioner who did not remain present nor has not availed, which has resulted into passing of order. As a result of this, the Court is of the clear opinion that no case is made out to consider or grant the reliefs as prayed for in the petition.
11. The Court no-doubt to some extent is tried to be persuaded that the penalty which has been imposed upon the petitioner is disproportionate to the gravity of charge, especially when the petitioner is having 22 years of service, but in the background of peculiar facts and circumstances when the Court see no arbitrariness, no discrimination, no pick and choose policy, the issue of proportionality cannot be gone into by the Court in judicial review in absence of any perversity or material irregularity. It is the domain of the disciplinary authority to take appropriate measure against an employee if the act is established against him. Hence, the Court is not inclined to interfere with the penalty order even on the basis of proportionality.
12. Having perused the material on record, it transpires that there was a need for sending or transferring the employees in view of serious financial problems and the administrative problems faced by the respondent - Corporation and as such, when such measure is taken in overall administration of the Page 15 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022 C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 Corporation, there is hardly any reason for this Court to intervene with the ultimate transfer as transfer is an incident of service as clearly spelt out by catena of decisions and the last in line is the decision delivered by Hon'ble Apex Court rendered in the case of S. K. Nausad Rahaman & Ors., v. Union of India & Ors., rendered in Civil Appeal No. 1243 of 2022 dated 10.03.2022. The Hon'be Apex Court has observed that an employee has no fundamental right or legal right to claim transfer at a place of his choice and administrative guidelines do not confer indefeasible right to claim. Relevant observation contained in paragraph 25, thus reads as under :-
25. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting.
Individual convenience of persons who are employed in the service is subject to the overreaching needs of the administration."
13. The Court on perusal of the record has further found that the petitioner had not challenge the order of deputation dated 24.11.2006 as also the letter dated 25.11.2006 for about approximately two years and further has also not approached the higher forum against the order of discontinuance. On the contrary, it appears that the petitioner was a surplus daily rated employee as contended by the respondent - Corporation instead of discontinuing, they were sending on deputation for a brief period of five months in a winter season only and now even this also was not obeyed by the petitioner, then no fault lies with the Corporation, especially when looking to the need and exigency, a decision is taken to sent several employees on Page 16 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022 C/SCA/5682/2008 JUDGMENT DATED: 11/03/2022 deputation. Hence, no case is made out by the petitioner to call for any interference. Furthermore, by catena of decisions it has been clearly opined by Hon'ble Apex Court that the quantum of punishment is to be left with the authority and unless there is any gross violation in rare cases, this Hon'ble Court may exercise its judicial review. Keeping this principle in mind, the Court is of the opinion that no case is made out to permit this Court to undertake exercise of jurisdiction and to interfere with the penalty inflicted by the Corporation. Hence, in the considered opinion of this Court, petition being meritless, deserves to be dismissed.
14. However, while parting with this judgment it is made clear that if petitioner wants to purse the representation on quantum of penalty it is open for him to make within a reasonable period and since such is the domain of respondent authority, it may independently decide looking to the circumstances which may be pointed out, but it is made clear that this Court has not expressed any opinion, it may be independently decided in accordance with law.
15. With these observations, the petition stands dismissed. Rule is discharged with no order as to costs.
16. Consequently, connected civil application does not survive for consideration. Hence, stands disposed of.
(ASHUTOSH J. SHASTRI, J) phalguni Page 17 of 17 Downloaded on : Sat Dec 24 12:36:09 IST 2022