Gujarat High Court
Vishnuprasad vs State on 14 June, 2011
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
CA/5191/2011 60/ 60 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR ORDERS No. 5191 of 2011
In
SPECIAL
CIVIL APPLICATION No. 16616 of 2010
=================================================
VISHNUPRASAD
NATVARLAL PATEL & 5 - Petitioners
Versus
STATE
OF GUJARAT & 4 - Respondents
=================================================
Appearance :
MR
GM JOSHI for Petitioners : 1 - 6.
MS. V.S. PATHAK for Respondent:
1,
NOTICE SERVED for Respondents : 1 - 4.
NOTICE SERVED BY DS
for Respondents : 2, 4,
MR RAVINDRA SHAH for Respondent : 3,
MR
MIHIR .J. THAKOR with MR RAMNANDAN SINGH for Respondent: 5,
MS
ABHA B MAKWANA for Respondent :
5,
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 20/12/2011/
22/12/2011
ORAL
ORDER
The applicants, who were original petitioners in Special Civil Application No. 16616 of 2010, have filed this application with following prayers.
"(A) This Honourable Court may be pleased to take suo motu cognizance of the wrong statements made by the respondent no.2 Shri N.I. Patel in the Affidavit in reply filed on 29th March 2011 and be pleased to initiate proceedings for committing criminal contempt of this Honourable Court.
(B) Be pleased to pass such other and further order that may deem just and proper in the facts and circumstances of the case."
Initially this application was filed against only four respondents, subsequently respondent no.5 in his personal capacity was also added as per the order dated 14/6/2011. The facts leading to filing this application deserve to be set out as under for the sake of appreciating the controversy.
The present applicants were constrained to file main petition being Special Civil Application No. 16616 of 2010 under Article 226 of the Constitution of India, seeking writ of mandamus and/or any other writ, direction or order for quashing the action of District Registrar in sanctioning / approving the amendment in bye-laws of respondent no.3 Society, namely Patidar Cooperative Housing Society, permitting commercial constructions / flats in the plots of respondent no.3 Cooperative Housing Society. Along with said prayer, a prayer was also made, calling upon the Director, District Registrar, Cooperative Societies to produce complete file in relation to proposal of the society seeking sanction / approval in amendments of the bye-laws of the society. The petitioners, present applicants, are members of the tenements owner society wherein the members would be owners of the superstructure. On 21/8/2005 a resolution was passed permitting commercial construction / use of property of the society. Some of the petitioners preferred Lavad Suit No. 1154/2005 in the Court of Board of Nominees and the interim Injunction matter came up to this Court. This Court in Letters Patent Appeal Nos. 39, 40 and 41 of 2008 passed an order on 12/5/2010 restraining the members of the society in putting up fresh commercial activities/construction in the respective plots, bungalows, without affecting the then existing structures wherein commercial activities were going on prior to 22/2/2006, and the Board of Nominees were directed to dispose of the suit expeditiously as mentioned in the memo of main petition. The society, as alleged contrived a device to overcome the restrictions imposed by the Division Bench in Letters Patent Appeals, and a resolution was passed on 21/9/2010 amending the bye-laws permitting commercial use of the plots of the society. This amended in bye-laws was submitted to District Registrar, Cooperative Societies, Ahmedabad, vide under application dated 29/9/2010. The petitioners / present applicants lodged their objections to the same and simultaneously they preferred Lavad Suit No. 707/2010 before the Board of Nominees, challenging legality and validity of the resolution and seeking an interim declaration and injunction against the society for executing and acting upon the resolution dated 21/9/2010. Learned Board of Nominees vide its order dated 18/11/2010 granted injunction as prayed for in para no. 9 (a) of the injunction application. The applicants / original petitioners received notice from the office of the District Registrar inviting them to adduce evidence in support of their objection that happened on 8/11/2010. The petitioners accordingly submitted their written submission on 11/11/2010 enlisting various objections including the Court's order passed in Letters Patent Appeal and urged that status-quo was ordered to be maintained by all the parties, and therefore, move of the society in amending bye-laws was nothing but a device to overcome and frustrate the order of the Division Bench.
Pursuant to the written submissions of the petitioners, on 11/11/2010, District Registrar sent papers to Assistant Cooperation Officer through Mr. M.N. Patel, directing him to submit the report in respect of the proposed amendment in bye-laws by checking all the records.
It is averred in the memo of the main petition that on 15/11/2010 Assistant Cooperation Officer Mr. M.N.Patel submitted his report, stating therein that the Chairman of the society has given a statement on 12/11/2010 accompanied by opinion of the advocate opining therein for sanctioning amendment in the bye-laws. At this stage it is required to be noted that on 18/11/2010 the Board of Nominees had granted injunction, however the District Registrar Cooperative Society, Ahmedabad passed an order sanctioning the amendment of bye-laws. It is the allegation made in the petition that though the approval was made on 19th, November 2010, by tempering with record it was projected to have been sanctioned on 16th, November 2010, so as to project that the sanctioning of bye-law was prior to the injunction order of Board of Nominee which was made on 18th November 2010. The allegations made in the petition deserve to be set out as under.
"2.4........
Petitioner state that the opinion of the Asst. Cooperation Officer was placed on 16th November 2010 before the district registrar of cooperative Societies and an office note was made on 18th November 2010 making an endorsement that there was no difficulty (impediment) in sanctioning the amendment and thereafter the date was corrected to that of 16th November 2010 and the order was passed as if the same was passed on16th November 2010. However, the concerned clerk made a specific endorsement that the f ile was received by him on 19 th November 2010 refusing to be a party to the interpolations and tampering with the record. As a matter of fact, the decision was taken on 19 th November 2010 in view of the fact that on 18thNovemebr 2010 the Ld. Board of Nominees had granted injunction against the society. Petitioner state that the petitioner presented the letter dated 19 th November 2010 to the Registrar pointing out that the Ld. Board of Nominees had granted the injunction on 19 th November 2010 and therefore no further action may be taken. Therefore the alleged interpolation/tampering was done on 19 th November 2010 itself as if the order was passed on 16 th November 2010. Petitioners crave leave to refer to and rely upon the office record that may be called upon from the office of the district registrar, cooperative societies for that purpose."
(emphasize supplied) It is also important to note at this stage that Division Bench in LPA No. 39 of 2008 in its order dated 12/5/2010 observed as under:
" Previously, this Court had on 24th December 2009 provided that no members of the co-operative society can start fresh commercial activities in their respective flat, bungalow, plot but said interim order will not affect those who were already involved in the commercial since prior to the said date. However, it was further provided that in the mean time those premises which are used for commercial activities since prior to 22nd June 2006 will not be disturbed but they will not alter or renovate their respective premises without prior permission of the Court. After some discussion at the Bar, learned counsel appearing for the parties agreed that the order dated 22nd June 2206 passed by Board of Nominees preventing any commercial use of the properties, may apply prospectively and may debar fresh use of premises / property being put to commercial use. It was agreed that till the suit is disposed of those persons who have been carrying on the commercial activities in the premises since prior to 22nd June 2006 may not be disturbed.
All the appeals stand disposed of with no order as to costs."
The petitioners were constrained to bring Lavad Suit No. 707/2010 as there was an attempt on the part of the society interested in permitting commercial use and hence amendment in bye-laws, despite, the aforesaid order was passed. This Court hasten to add here that there was no stay against the amendment to bye-law but it is submitted on behalf of the counsel of the petitioners that looking to the spirit and letters of the order of the Division Bench in LPA, in all propriety the society should have restrained itself from even amending the bye-law.
The fresh Lavad Suit No. 707/2010 was thus brought and on 18/11/2010 the Board of Nominees passed order of interim injunction in terms of para no. 9(a), the gist whereof could set out as under :- "during pendency of this Lavad Suit the defendant society itself, its agents, servants, members or any other would not act pursuant to the special general meting held on 21/9/2010 in respect of the agenda dated 10/9/2010 for amending the bye-laws, and would not obtain any permission or order thereon nor would they act without any permission for putting the construction, building or plot to commercial use of the society".
The petitioners case as could be seen from the quoted averments in the petition was that the records of the District Registrar Co-operative Societies Ahmedabad was so tampered as to project that the District Registrar had sanctioned bye-law on 16.11.10 i.e. prior to the interim order passed by the Board Of Nominee on 18.11.10, though in fact the District Registrar sanctioned it only on 19.11.10. The District Registrar, Cooperative Societies (City), Ahmedabad, Shri N.I.Patel filed affidavit-in-reply, affirmed on 29/3/2011 which contain averments as under:
"4.
I respectfully state and submit that the application dated 29.09.2010 for the amendment in the Bye-laws was received by the office of deponent on 4.10.10. The copy of said application is annexed hereto and marked as Annexure 'R-I'.
I respectfully say and submit that the objections were raised by petitioners herein against the application dated 29.09.2010 and same were received by the office of deponent on 25.10.2010. It is further submitted petitioners were called vide letter dated 1.11.2010 to submit their objections if any within 3 days as no objections were received so vide letter dated 8.11.2010 another reminder was sent by RPAD. The copy of said RPAD slips are annexed hereto and marked as Annexure 'R-III' I respectfully say and submit in view of the objections dated 11.11.2010 received by the deponent authority Mr. M.N. Patel, Assistant Cooperative Officer was asked to inquire in to the matter. It is further submitted on 12.11.2010 inspection was carried out by Mr. M.N. Patel and on 15.11.2010 report was submitted whereby, it was contended that there is no objection if the bye-laws are amended.
I respectfully say and submit considering the report dated 15.11.2010 order was passed by the deponent herein on 16.11.2010 but the same was dispatched on 19.11.2010.
I respectfully say and submit that there is no material produced by petitioner herein to warrant the conclusion that the action of the deponent. Hence no credence can be placed on the averment of the petitioner that the deponent authority had tampered with the record.
I respectfully say and submit the contents of Para 2.3 and 2.4 are not germane to the issues raised in the present. It is submitted that it is not the case of present petitioners that in spite of serving the interim order passed in Lavad Suit No. 707/2010 the deponent authority had passed an order below amendment application.
It is pertinent to note that, the copy of said order was served to the office of deponent herein vide letter dated 19.11.2010 on 19.11.2010 and same was received by deponent herein on 20.11.2010. The copy of said letter is annexed hereto and marked as Annexure 'R-III'.
..................
I respectfully say and submit that the allegations regarding tampering cannot be vaguely made and it must be specific and clear. It is further submitted the allegations about tampering are more easily made than made out. There is no material produced by the petitioner to warrant the conclusion that the action of the deponent in issuing order is mala fide."
(emphasize supplied) This deponent of the affidavit, namely Shri N.I. Patel, District Registrar, Cooperative Societies (City), Ahmedabad, along with his affidavit produced the memorandum / order dated 19/11/2010 at page-248 as annexure 'R-III'. Below that, one more signature is appearing which indicate that somebody has signed it on 19/11/2010, and another one officer's signature is also bearing date as 16/11/2010. Petitioner no.1 on behalf of the petitioners filed rejoinder affidavit, affirmed on 31/3/2011 and following averments are made in para no. 5, 6 and 7 as under.
"5.
Without prejudice to the above I respectfully state that the deponent has not disclosed the full facts by keeping the original documents up the sleeve. I respectful submit that I had demanded the copies of the official file under the Right to Information Act. The same was furnished to me. I crave leave to produce the same with the present rejoinder as Annexure AR-1. As the type copies of the documents are not available, I may be permitted to produce the plain paper copies of the same as supplied by the respondent authorities. I respectfully state that though an endorsement was made suggesting that the members who are objecting to the amendment may be given an opportunity of hearing by fixing a date of hearing, the deponent had ignored the same and did not afford any opportunity to the petitioner by fixing a date of hearing. Not only that the date of decision is the real controversy involved in the present petition. I respectful submit that the Honourable Court may kindly peruse the record more particularly the signatures and the dates below the endorsement mentioning that there does not appear to be any impediment in sanctioning/approving the amendment of bye law 2 and 2 (A) as per the note. The signature of the subordinate officer was made on 18th November 2010 below the endorsement. The deponent had affixed the signature on 19th November 2010 only. As per the process of administrative decision the final authority affixes the signature only after the subordinates prepare the endorsements and only after all the signatures are affixed. The dates are overwritten by both the officers by correcting the same to 16th November 2010. The overwriting is obviously done with a view to demonstrating that the order was passed before the interim order was passed by the Board of Nominee was communicated to his office.
I respectfully submit that the controversy of the date of decision was a subject matter of serious controversy as the same had also appeared in the newspapers as well. As per the impression of the deponent, the government took the note of the controversy and decided to inquire into the matter. Accordingly, the enquiry was handed over to the Joint Registrar (Audit) Shri A.B. Gadhavi who is having his office at the GUJCOMASOL campus on Relief Road. The said officer has called me and other members and had recorded our statements. We had made definite statements that the impugned decision was signed after the order was passed by the learned member of the Board of Nominee of Registrar. It is a matter of record that the concerned clerk of the department was also examined and as per my understanding the official record was also scrutinized by the Inquiry Officer. I understand that the report of the Inquiry conducted by him is already submitted on 24 th February 2011 to the Government. The Honourable Court may be kind enough to call for the same from the respondent no.1 that ought to have assisted the Honourable Court on the subject matter by producing the report on his own as he is the party to the proceedings and has chosen to maintain a blissful silence.
It is a matter of record that the deponent whose action was subjected to the inquiry would be aware of the same. He ought to have disclosed the same before this Honourable Court as this was the fact within his information and/or knowledge. The deliberate attempt to conceal the same must be viewed seriously more particularly in view of the definite statement made in paragraph 7 of the Affidavit in reply that the order was passed by the deponent on 16th November 2010 but the same was dispatched on 19th November 2010."
(emphasize supplied) Thus the allegation was made in respect to tampering. Jt. Registrar (Audit) Shri A.B.Gadhavi was appointed and asked to carry on the inquiry and who has recorded definite statement, but the same was not brought to the knowledge of the Court. That itself was said to be a fact militating against the stand of respondents, especially respondent no.2. The petitioners along with this affidavit by way of annexures produced xerox copies of the notings. In one of the notings at page-256 there appears to be a change in date from 19/11/10 to 16/11/10 below note no. 19 and the signature is made on note no. 20.
During pendency of this petition Civil Application No. 5191 of 2011 came to be filed with a specific prayer to initiate action against respondent no.2, i.e. District Registrar Cooperative Societies, Ahmedabad City. The Court therefore while disposing of the main matter being Special Civil Application No. 16610 of 2010 vide order dated 28/4/2011has observed as under:
"3.
Mr. Joshi for the petitioner submitted that the report of Mr. Gadhavi, Joint Registrar (Audit) is eloquently clear in respect of tampering and petitioner has also preferred Civil Application being Civil Application No.5191 of 2011 in Special Civil Application No. 16616 of 2010. The Court may while disposing of the main matter keep Civil Application alive, so that, grievance made by the applicant in respect of the deponent of the affidavit viz. N.I.Patel - District Registrar Co-operative Society, Ahmedabad (City) may not be whittle down in any manner and it may be processed in accordance with law.
Shri Joshi further submitted that the disposal of this matter may not (be) construed in any manner in respect of forgery and misleading wiped of while disposing the matter. The Court may take care of this contention or else it may be argued that the main matter is itself not substantive and therefore, it would be proper to put an end to the controversy.
In view of the circumstances, the Court is of the view that when the impugned order itself is quashed, the main matter need not be kept alive, but, disposing the main matter itself, shall not (be) construed by any party as if the Court has accepted the deponents affidavit and thereby exempted him from his liability to answer to the contention raised in the Civil Application No. 5191 of 2011. The Court is of the view that the Civil Application No.5191 of 2011 be treated as independent application for the prayers made thereunder and while deciding the said application, record and proceedings of the main matter i.e. Special Civil Application No. 16616 of 2010 would be very much essential. The office will see that both the matters are tagged together, despite the fact that Special Civil Application No.16616 of 2010 is disposed of. If there is a need to send the main matter in Decree Department for certified copy or for other purpose, after the completion of said work the same can be send back and be tagged with the Civil Application No.5191 of 2011, wherein the affidavit is filed, which is said to be misleading and based upon the forgery is made. It shall be treated as a part of the Civil Application No.5191 of 2011. The order dated 19.11.210, which is reported to be vitiated on account of tampering is squashed and set aside so far as the date is concerned.
New incumbent - District Registrar Co-operative Society, Ahmedabad (City) is directed to decide the proposal of respondent No.3 - Society afresh, without being influenced by the proceedings as he has to exercise statutory duty cast upon him and while deciding the same, he shall consider all the relevant material and decide it in accordance with law, after offering opportunity to all concerned."
The main matter was thus disposed of and civil application for orders being Civil Application No. 5191 of 2011 was kept alive. Therefore the office put up office note in form of submission to the Honourable The Chief Justice on 28/6/2011 and sought Honourable Chief Justice's order for placement of civil application, on account of change of roster, the non service (Group I) had been assigned to Honourable other Single Judge. Honourable Chief Justice passed an order for placement of this civil application before this Court (Coram: S.R. Brahmbhatt, J) on 28/6/2011. According the civil application was assigned to this Court for being heard and decided.
At this stage it is pertinent to note that this Court during pendency of Special Civil Application No. 16616 of 2010 passed the following order on 8/04/2011 which is set out as under.
"1.
Leave to amend so as to join State of Gujarat through Secretary, Department of Agriculture & Cooperation, New Sachivalaya, Gandhinagar.
2. Special Civil Application No. 16616 of 2010 is filed by the petitioners who are opponents in the civil application for challenging the order dated 19/11/2010 approving the amendment in the bye-laws of respondent no.3 society on various grounds, including the ground that the said order is passed, despite the fact that there was prohibitory order in operation where under respondent no.3 society was under an obligation to maintain status-quo with regard to granting permission for commercial use of members' premises. It is contended on behalf of the petitioners that, despite there being a prohibitory order with regard to permission for commercial use in operation, the society in order to over-reach the process of the Court called a general body meeting and passed resolution for amending the bye-laws, as the bye-laws as they stood without amendment, did not specifically permit the property being used by the members to be covered into commercial property or be permitted to be used for commercial purpose. The earlier suit was pending, it was on the verge of being heard finally and the resolution was passed as it is alleged with a view to knock down the challenge to earlier actions of the society in permitting members to put up premises for commercial purpose. The petitioners therefore had to file one more lavad suit being Lavad Suit No. 707/2010 wherein they prayed that resolution passed in the meeting dated 21/9/2010 may not be made basis for carrying out further proceedings for seeking appropriate order from the competent authority for approving amendment in bye-laws. This lavad suit was filed on 22/10/2010. On 18/11/2010 the Board of Nominees passed prohibitory order of injunction in terms of Para-9(A) of the suit where under prohibition was sought against the society that the society may not proceed further pursuant to its meeting dated 21/9/2010 for seeking amendment to its bye-laws. The said order was served upon respondent no.2 on 19/9/2010. It was noticed that the concerned respondent, i.e. respondent no.2 had approved amendment in the bye-laws vide order dated 16/11/2010 which was dispatched on 19/11/2010.
3. Learned advocate for the petitioners has made serious grievance in the petition, which are set out as under:-
"2.3 The petitioners state that simultaneously the district registrar, cooperative societies issued a notice to the petitioners who objected to the amendment of bye law calling upon them to produce the evidence in support of their objections by issuing notice dated 8th November 2010. The petitioner members produced their written submissions dated 11th November 2010 pointing out the injunction granted by the Hon'ble Court was operating and the Hon'ble Court has specifically directed the parties to maintain status-quo and requested the registrar not to proceed with the sanctioning of the proposed amendment. One such notice is produced herewith and marked as Annexure H to the petition. Petitioners state that the notice was issued on 8th November 2010 whereby the petitioners were supposed to submit their objections within three days of the notice. Petitioners submitted their written objections on 11 November 2010, which is produced herewith and marked as Annexure I. Petitioners state that on 11th November 2010 the district registrar sent the papers to the Assistant Cooperation Officer Shri M.N.Patel directing him to submit the report in respect of the proposed amendment in the bye laws by checking all the records and submitting his opinion on the subject matter. On 15th November 2010, the Asstt. Cooperation Officer Shri M.N. Patel submitted his report stating therein that the Chairman of the Society has given a statement on 12th November 2010 accompanied by opinion of an advocate and therefore opined for sanctioning the amendment in the bye laws. Copy of the statement given by the Chairman together with the advocate's opinion is produced herewith and marked as Annexure J. Petitioners state that the opinion was submitted on 15th November 2010 which was received by the office of the district registrar on the same day. Copy of the opinion / Report of the Cooperation officer is produced as Annexure K.
2.4 The petitioner state that inspite of the fact that in letter and spirit, it was necessary and obligatory for the parties to proceed with the suit, get a decision on merits and inspite of the fact that the Ld. Board of Nominees was ceased of the matter and inspite of the fact that the Ld. Board of Nominees had granted injunction on 18th November 2010, the respondent registrar passed an order sanctioning the amendment of bye laws as if the same is sanctioned before the interim order was passed by the Ld. Board of nominees. A copy of the order dated 19th November 2010 is produced herewith and marked as Annexure L. Petitioner state that the opinion of the Asst. Cooperation Officer was placed on 16th November 2010 before the district registrar of cooperative Societies and an office note was made on 18th November 2010 making an endorsement that there was no difficulty (impediment) in sanctioning the amendment and thereafter the date was corrected to that of 16th November 2010 and the order was passed as if the same passed on 16thNovemebr 2010. However, the concerned clerk made a specific endorsement that the file was received by him on 19th November 2010 refusing to be a party to the interpolations and tampering with the record. As a matter of fact, the decision was taken on 19th November 2010 in view of the fact that on 18th November 2010 the Ld. Board of Nominees had granted injunction against the society. Petitioner state that the petitioners presented the letter dated 19th November 2010 to the Registrar pointing out that the Ld. Board of Nominees had granted the injunction on 19th November 2010 and therefore no further action may be taken. Therefore the alleged interpolation /tampering was done on 19th November 2010 itself as if the order was passed on 16th November 2010. Petitioners crave leave to refer to and rely upon the office record that may be called upon from the office of the district registrar, cooperative societies for that purpose."
4. The respondent no.2 has filed an affidavit which is affirmed on 29/3/2011 wherein , in para-7 he has made the following averments.
"7.
I respectfully say and submit considering the report dated 15.11.2010 order was passed by the deponent herein on 16.11.2010 but the same was dispatched on 19.11.2010."
5. The petitioner has filed rejoinder wherein he has annexed xerox copes of the noting and alleged that the record is tampered. Though the order was passed on 18/9/2010 but it is projected as if it was passed on 16/9/2010 so as to held out the petitioner and that the order was passed before respondent no.2 came to be served with prohibitory order of Board of Nominees. The relevant averments are made in para-5 of the affidavit in rejoinder on page-243 and xerox copies of the documents are produced on record on the noting. They are from page-247 to 257.
6. The Court therefore requested learned AGP to obtain specific instructions on this aspect. Learned AGP has submitted that, in fact the tampering was complained of by one Anilbhai M. Shah vide his communication dated 10/12/2010 as could be seen from inquiry officer's report and was requested to conduct inquiry into the matter by Addl. Registrar (Admn.) vide his letter dated 28/12/2010. The report is placed on record. Said report is accompanying communication dated 24/2/2011 which is addressed by inquiry officer who happened to be Jt. Registrar, Cooperative Societies (Audit) to Addl. Registrar (Adm.). Said report is taken on record. The findings of the inquiry officer, viz. Jt. Registrar, Cooperative Societies (Audit) go to show that the tampering with the record is established.
7. Against the aforesaid backdrop, the Court is of the considered view that tampering with the official record is a very serious matter which calls for prompt and stern action against those who have been prima facie said to be responsible for committing said tampering. Tampering of the record which is said to have been proved as per inquiry officer's report calls for appropriate and prompt action at the end of the Registrar, Cooperative Societies, State of Gujarat and the Secretary, Agriculture & Cooperation Department. Learned AGP at this stage submitted that as suggested by inquiry authority the matter is sub-judice, no action is initiated. This Court is of the view that tampering with the record is an independent act which if proved would amount to committing of offence punishable under provisions of Indian Penal Code. Therefore, the authorities, viz., Addl. Registrar (Admn.), Registrar, Cooperatives Societies, Gujarat State and the Secretary, Agriculture & Cooperation Department have to look into the matter and submit their "ACTION TAKEN REPORT" before the Court. The Secretary, Agriculture & Cooperation Department, newly added respondent, shall personally look into the matter in consultation with all the concerned for arriving at an appropriate decision for taking action on the basis of the report submitted by the Jt. Registrar in his covering letter dated 24/2/2011 to Addl. Registrar (Admn.). The pendency of this petition shall not in any way be construed as an impediment in the way of the Secretary, Agriculture & Cooperation, Registrar and Addl. Registrar in taking action. The Court is expecting of the Secretary to consult the concerned and arrive at an appropriate decision for initiating appropriate action against those who are prima facie responsible for tampering with the record.
8. The Secretary, Agriculture & Cooperation, shall take the original files pertaining to this matter into his custody, therefore there may not be any further opportunity to any one for tampering and or demolishing the evidence. The matter is kept on 20/4/2011 for further hearing. However the 'Action Taken Report' which is called for from the Secretary, Agriculture & Cooperation Department be submitted on / or before 25/4/2011. Once again it is reiterated that, pendency of this proceedings may not be treated as an impediment and the Secretary, Agriculture & Cooperation is expected to take prompt action in the matter.
9. Adjourned to 20/4/2011."
Thereafter on 28/4/2011 the main matter was disposed of as it is stated herein above, keeping alive the Civil Application No. 5191 of 2011 and the Civil Application was assigned to this Court.
In this civil application original respondent no.5 was not joined as party in his personal capacity, as there was serious allegation against him he was ordered to be joined as party respondent in his personal capacity, who is represented through Senior Advocate Shri M. J. Thakore with Advocate Shri Ramnandan Singh.
The relevant portion of notice issued to Shri N.I. Patel, respondent no.5 herein above on 27-29/4/2011 is also required to be referred to, and which is also forming part of this compilation on page-29 onwards as R-I (colly),wherein it is clearly opined by author of the notice that action of tampering was criminal offence which was based upon the statement recorded of the concerned employees. This notice is eloquently clear qua the act and omission on the part of the respondent no.5 who is alleged to have been involved in tampering. The notices issued to other employees from page-33 of the compilation are also required to be seen, wherein the author of the notice has not imputed any criminal conduct or criminal misconduct or offence against them. Page-80 of the compilation contains noting prepared and submitted to the concerned authority on 14/4/2011 which is proposal for immediately transferring the officer Shri N.I. Patel. In that noting there exist sufficient justification warranting immediate action and transfer of the said officer. It is also contended that there was instruction from Principal Secretary for transferring respondent no.5. This action was proposed pending submission of Action Taken Report which was called for under the Court order on 8/4/2011 and the report was to be submitted as stated in the noting by 25/4/2011. Said noting is approved by all. The file was referred to General Administration Department wherein one Section Officer opined on 27/4/2011 that Shri N.I. Patel happened to be native of Mehsana and therefore, as per the guidelines and principles governing transfer of Class-I officer, he should not be posted in his native place. Therefore that proposal was not approved and it was opined that Agriculture department while mooting proposal should have taken care of this fact and it was opined that in view of the fact that serious allegation of tampering with record is alleged, he is required to be posted at less sensitive place and appropriate action for punishment is required to be taken and Honourable Chief Minister's opinion also be taken thereon. Thereafter an affidavit came to be filed by the Secretary, Cooperation.
Thereafter one Shri R.K.Tripathy, Principal Secretary, Agriculture & Cooperation Department, Gandhinagar has filed compliance affidavit, verified & affirmed on 4/5/2011 along with annexures, wherein it is said that on 27-29/04/2011 office of the Registrar, Cooperative Societies, Gandhinagar, issued show cause notices asking for explanation before taking disciplinary action to the understated persons, wherein five employees names have been shown starting with Mr. N.I. Patel, District Registrar, Co-operative Societies, Ahmedabad (city)Mr. M.C.Parmar, Sr.Clerk etc., and copies of the show cause notices have been annexed. In para no.3, 4, 5, 8, 10 and 12 of the affidavit following averments are made, which are set out as under.
"3.
I humbly say and submit that Shri N.I. Patel was directed to proceed on leave till the decision of his transfer is finally taken I humbly say and submit that the General Administration Department's Resolution dated 25.11.2005 is applicable in case of Shri N.I. Patel (Class-I Officer) for the purpose of his transfer. A Copy of the Resolution dated 25.11.2005 is annexed herewith and marked as ANNEXURE-R-III to this affidavit in reply.
" 5.
I humbly say and submit that, the reports submitted by Shri A.B. Gadhvi dated 24.02.2011 is inadequate, since the report does not mention about the specific extent of role of each Class-I, Class-II officer and Class-III employee in tampering with record. The report is totally based on statements and assumption and presumptions the inquiry office has mentioned about proceeding going on in the Hon'ble High Court which is not within the scope of the inquiry officer. Hence I have considered it proper to issue show cause notices, obtain explanation, examine those explanation and thereafter consult Gujarat Vigilance Commission for its advice as regards to the action to be taken.
I humbly say and submit that vide letter dated 28.12.2010 Additional Registrar (Administration) Cooperative Societies, Gujarat State,Gandhinagar, directed Shri Gadhvi, Joint Registrar (Audit) to initiate fact-finding inquiry and submit the report along with his opinion and all the evidence on record in this matter within period of 10 days. In the said letter, the words criminal proceedings was mentioned as a demand of the applicant Shri Anil Shah in his application dated 10.12.2010. Therefore, in my respectful submission neither any opinion was formed nor any decision was taken for criminal proceedings, by the Additional Registrar (ADM) of Cooperative Societies before entrusting the preliminary inquiry to Shri A.B. Gadhvi. It is humbly submitted that Additional Registrar (Administration) Cooperative Societies has no authority/jurisdiction for deciding to initiate criminal proceedings for any employee. In case of Class-I and Class-II officers State Government is disciplinary authority. For Class-III, it is the Registrar of Co-operative Societies who can take the decision on criminal proceedings.
I humbly say and submit that on 27.01.2011 it was informed that the judicial case is going on. Therefore, the decisions will be taken after the matter is over. Therefore, after that again it was written to Additional Registrar to specifically submit the report regarding the tampering of record in case of Patidar Cooperative Society.
12. It is humbly submitted that, Shri Khandhar, Director of Sugar, Gujarat State, Gandhinagar is entrusted with the inquiry about the role of Shri A.B.Gadhvi and Administrative wing of Registrar Cooperative Societies, Gujarat State,Gandhingar. The said inquiry report is required to be submitted within a period of 15 days to Government. It is further submitted that Additional Secretary, Shri M.A. Narmavala, IAS has also been asked to look in to the conduct of the Under Secretary (Cooperation), the then Joint Registrar (Marketing) in Office of the RCS and the preliminary inquiry officer."
(emphasize supplied) The notes appended to the Action Taken Report or compliance of report filed by Shri R.K.Tripathy, Principal Secretary, Agriculture & Cooperation Department, betrays deliberate inaction on the part of all concerned authority as the officer, i.e. respondent no.5 who was orally ordered to proceed on leave had resumed his charge on the very same post on 4/7/2011 and office charge taking process was also frowned upon by the concerned authority without instruction from any one and he had taken charge and put up note that he had to proceed on leave on account of his mother's ailment and not that he was instructed to proceed on leave, which belies the statement made on oath by Shri R.K. Tripathy, Principal Secretary, Agriculture & Cooperation Department in his affidavit in para-3 which was affirmed on 4/5/2011. Thus either Shri Tripathy has made false and incorrect statement on oath or said Shri N.I.Patel has made wrong statement in his defense. The Court would advert to it at proper stage as this civil application is not being disposed off now. But it becomes clearer that Authorities in State were not only inert in taking action against said Shri N.I.Patel but rather out to protect him for his conduct. One more affidavit came to be filed by one Dr. D.H. Brahmbhatt, Secretary (Cooperation), Agriculture & Cooperation Department, affirmed on 20/7/2011 indicating therein that the Vigilance Commission was requested to opine for action to be taken against the officer. Annexure-R-1 to this affidavit is a letter dated 4/7/2011 issued by Dy. Secretary to the Registrar, Cooperative Societies, calling upon him to explain as to the charge of the office of District Registrar was already held on 24/4/2011 by one Shri B.N. Jaiswal, then how in his absence concerned officer Shri N.I.Patel had taken unilaterally charge of that officer and his explanation was called for in his order dated 5/7/2011 by Addl. Registrar (Administration) which was annexed to the petition. This all exercises were required to be undertaken as the petitioners filed supplementary affidavit bringing additional information, wherein it is indicated that Shri N.I. Patel had taken over charge despite the assurance given to the Court that Shri N.I. Patel was asked to proceed on leave.
The affidavit of Shri N.I. Patel, respondent no.5 contains following which are required to be set out as under:
"3.
With respect to para 3, I say and submit that in the writ petition, I was being represented by the learned Assistant Government Pleader, therefore, filing of reply was subjected to the direction of the learned Assistant Government Pleader and when the learned Assistant Government Pleader had drafted the reply and then I had affirmed the reply on 29.3.2011. Therefore, the allegation that I have not filed reply initially is not relevant because the affidavit was dependent upon the instructions and directions of the learned Assistant Government Pleader through whom I was being represented in the writ petition.
With respect to para 4, I say and submit that whatever information was sought for by the learned Assistant Government Pleader, I had supplied all the relevant information to the learned Assistant Government Pleader and it was in the wisdom of the learned Assistant Government Pleader to file reply which was required to be done to assist this Hon'ble Court in the matter.
With respect to para 5, I say and submit that I have never made any false statement before this Hon'ble Court in the reply, as it is alleged by the applicants that I have given wrong information in para No.6 and 7 of the reply. However, detailed reply of allegation of para
(i) to (iii) is as under:-
5.1.
With respect to para (i), I say and submit that the reply was to be drafted by the learned Assistant Government Pleader and as and when I was called by the learned Assistant Government Pleader, to give instructions and to swear the affidavit-in-reply, I have followed the direction of the learned Assistant Government Pleader and therefore, it is not correct to say that the affidavit was not filed by the present deponent until insisted upon by the applicants.
5.2.
With respect to para (ii) I say and submit that the affidavit-in-reply was based on the points inquired by learned Assistant Government Pleader. I was asked whether I had tampered with the document and I informed the learned Assistant Government Pleader that I have not tampered with the records and accordingly, the reply was drafted and I sworn in the affidavit. Neither the learned Assistant Government Pleader inquired about pending inquiry nor it was subject matter of the petition. Hence, I had not stated this fact. With regards to this Hon'ble Court, I say and submit that I had no slightest intention to suppress any information from this Hon'ble Court or to avoid stating any relevant information before this Hon'ble Court. It is submitted that the inquiry which was being made by Shri Gadhvi was an inquiry which was initiated at the instance of the application before Government but it was not a departmental inquiry, it was simplicitor preliminary inquiry on the application of public. I never made any attempt to mislead this Hon'ble Court or I never concealed any relevant facts from this Hon'ble Court.
With respect to para 6, I say and submit that I have never thought or imagined to do any act nor I have done any act which could result into any contempt of this Hon'ble Court. I never filed any false affidavit. However, I tender unconditional apology if inadvertently, I have not stated regarding inquiry being conducted by Shri Gadhvi or any other allegation which is made against me in this application. I undertake that in future, I will cautious in dealing with the Court's matter."
19. One more affidavit came to be filed by one Shri Jayantibhai B. Vaghela, Deputy Secretary, Agriculture and Cooperation Department, affirmed on 16/9/2011. Relevant paras thereof are set out as under:
" 2.
I say that in pursuance to the letter dated 02.07.2011, from the Registrar,Co-operative Societies, Gandhinagar, the Deputy Secretary, Agriculture and Cooperation Department, Gandhinagar, Gujarat vide letter dated 04.07.2011 instructed the Registrar, Cooperative Societies to ask for explanation of Shri N.I.Patel for his resuming duty on the same post one sided without intimation to the concerned authority. I say that in view of the above referred instruction, the Additional Registrar, Cooperative Societies issued a notice dated 05.07.2011 to Shri N.I.Patel,calling upon him to give explanation within 7 days. Vide letter dated 12.8.11, the Registrar, Cooperative Societies had sent his report to this department on the explanation given by the District Registrar, Cooperative Societies, Shri N.I.Patel vide his letter dtd.13.7.11. After scrutiny of the said report along with the said explanation of Shri N.I. Patel, this Agriculture and Cooperation Department has asked for certain information wanting in this report from the Office of the Registrar, Cooperative Societies, Gujarat State, Gandhinagar vide our letter dated 7.9.11.
3. I say that after considering the proposal of this Department dated 2.7.11 for seeking its advice with regard to the action to be taken against the six officers / employees concerned with the case of tampering with record, the Gujarat Vigilance Commission has recommended for holding joint inquiry under Rule 13 as well as Rule 9 & 10 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, against the said officers/employees vide its letter dtd. 16.7.11. Thereafter, this department has asked the Registrar, Cooperative Societies, vide letter dtd. 2.8.11 to send the drafts of chargesheets along with necessary enclosures to be given to the said officers/employees. After receipt of the drafts of chargesheets, a proposal for seeking the approval of the State Govt. for initiating departmental inquiry by accepting the advice of the Gujarat Vigilance Commission will be submitted by this department."
Since the Class-II & III officers/employees have already been transferred elsewhere, their suspension from duty has not been found necessary after considering the opinion of the Registrar, Cooperative Societies.
A proposal to put Shri N.I. Patel under suspension with change in his headquarter has been submitted for the orders of the State Govt. and it is under active consideration of the Government."
As it is stated herein above, there appear to be an attempt to pay lip service and stand to defend this officer so as not to disturb him in any manner and permit him to be continued on the same post where he had alleged to have committed misconduct of tampering with record. This Court was constrained to call upon the Chief Secretary of the State to clarify the stand of the State vide order dated 15/9/2011, which is also set out for the sake of ready reference.
"1.
Learned advocate Shri Joshi invited this Court's attention to compliance affidavit filed by one Shri R.K. Tripathy, Principal Secretary, Agriculture & Cooperation Department, Gandhinagar, affirmed on 4/5/2011 at Gandhinagar, wherein that officer has stated on oath on page-23 in para-3 as under.
"I humbly say and submit that Shri N.I. Patel was directed to proceed on leave till the decision of his transfer is finally taken."
The said affidavit contains Annexure-R1 collectively wherein a show cause notice dated 27/29-4-2011 appears to have been issued to respondent no.5 herein in respect of the alleged tampering with the record so as to help the litigant who had been restrained by the competent Court, and this tampering was with a view to prohibit interim order passed in favour of those litigant who had serious grievance in respect of the persons being helped by the respondent no.5 herein. Shri Joshi invited this Court's attention to the office note no. 418 dated 27/4/2011 forming part of the compilation at page-82 indicating therein that the proposal for transferring respondent no.5 was processed. That noting appears to have reached up to Additional Chief Secretary. Shri Joshi has invited attention of this Court to one more affidavit filed by one Dr. D.H. Brahmbhatt, Secretary, (Cooperation), Agriculture & Cooperation Department, Gandhinagar, affirmed on 20/7/2011 and accompaniment thereof in form of inter-office note at page-87, the communication issued to respondent no.5 by Addl. Registrar (Administration), Gujarat State, calling upon the respondent no.5 to explain as to what action be taken against him for the conduct alleged therein by indicating that respondent no.5 assumed his charge of the office, though he had proceeded on leave on 21/4/2011, he resumed on 2/7/2011 without any procedure required to be followed.
The Court is of the view that the submissions made by learned advocate for the applicant that the reluctance on the part of the State in initiating prompt action for obvious reasons cannot be lightly brushed aside, as on earlier occasion also a specific query was put to learned Government Pleader as to under what Business of Rules when Class-I officer who is not head of the department is sought to be transferred, the file is required to be processed by the authorities beyond the Secretary of the Department. Till date no answer has come forward justifying the lack of action on the part of the authorities.
In view of this, now, it is in fitness of things that the Chief Secretary of the State shall file affidavit in reply in respect of the allegations made in the Civil Application and indicate unequivocal stand of the State as to what action State proposes in light of the allegations made in the civil application. Affidavit of the Chief Secretary shall be placed on record on or before 22/9/2011. In the meantime the affidavit which is already sent for affirmation as submitted by learned Addl. Government Pleader may be brought on record, with a copy to the other side and that affidavit be served by 16/9/2011.
Adjourned to 16/9/2011 to ensure that the affidavit which has been sent for affirmation has been served or not, and the matter thereafter be kept for hearing on 22/9/2011.
Office is directed to make available copy of this order immediately to learned AGP for onward communication."
The Chief Secretary of the State did not file Affidavit as ordered by 22.09.2011. Shri Joshi Learned Advocate for the applicants informed this Court that Respondent No. 5 Shri N. I. Patel had challenged the order dated 15.09.2011 passed by this Court, reproduced herein above, calling upon the State to clarify it's stand through Affidavit to be filed by the Chief Secretary of the State by 22.09.2011, in Letters Patent Appeal No. 1391 of 2011 in CA 5191 of 2011 and sought stay of this order which came to be disposed off by the Division Bench on 22.09.2011, copy of the order of Division Bench is placed on record by Shri Joshi which reads as under :
"Learned advocate for the appellant does not press this Letters Patent Appeal. The Letters Patent Appeal as well as Civil Application for stay stand disposed of accordingly."
The Chief Secretary of the State thereafter filed Affidavit -in Reply only on 23.09.2011 which was affirmed on 23.09.2011, i.e. beyond the time limit fixed by the Court for filing the same with and pleaded following "
I, A.K. Joti, I.A.S., Chief Secretary to the Govt. of Gujarat do hereby solemnly affirm and state on oath as under:
"1.
I am filing this affidavit in reply for due compliance of the order passed by this Hon'ble Court dated 15.09.2011, more particularly the direction issued in para-4 of the said order. Para-4 of the order dated 15.09.2011 is reproduced herein for ready reference of tis Hon'ble Court:
"In view of this, now, it is in fitness of things that the Chief Secretary of the State shall file affidavit in reply in respect of the allegations made in the Civil Application and indicate unequivocal stand of the State as to what actions state proposes in light of the allegations made in the civil application. Affidavit of the Chief Secretary shall be placed on record on or before 22.09.2011. In the meantime, the affidavit which is already sent for affirmation as submitted by learned Addl. Government Pleader may be brought on record, with a copy to the other side and that affidavit be served by 16.09.2011."
2. I state that I have gone through the Action Taken Report and compliance affidavit filed by the Principal Secretary, Agri. & Co. Op. Dept. dated 21.04.2011 and 04.05.2011 respectively. I have also gone through the affidavit filed by the Secretary (Cooperation), Agriculture and Cooperation Department dated 20.07.2011 and the affidavit filed by the Deputy Secretary (Cooperation), Agriculture and Cooperation Department dated 16.09.2011.
3. It is most respectfully submitted that as per the present allocation of business of the State Govt. this matter relates to the Cooperation Division of the Agriculture and Co-operation Division of the Agriculture and Co-operation Department which is headed by the Secretary (Cooperation), Dr. D.H. Brahmbhatt since 12.07.2011. Earlier these affairs were dealt with by the Principal Secretary, Agriculture & Co-operation Department, Shri R.K. Tripathy.
4. I say and submit that on 12.08.2011, I had concurred the proposal for suspension of Mr. N.I. Patel,Class I Officer, District Registrar, Cooperative Societies (City), Ahmedabad and then the file was sent to the higher authority as per the channel of submission prescribed by General Admn. Dept. Thereafter on 19.09.2011, the said proposal was re-submitted to me by the cooperation dept., which was submitted to higher authority on 19.09.2011 itself, for suspension of N.I. Patel, with my concurrence.
5. I say and submit that on 22.09.2011, the state authority has instructed me, to gather all the written complaints received by the Dept. / Govt. against Mr. N.I. Patel, Class I Officer, Dist. Registrar Co-operative Societies (City) Ahmedabad and proceed as per Acts & Rules by higher Officer of Secretary level other than Agri. & Co. Op. Dept.
6. I say and submit that the letter of Ld. Assist Govt. Pleader dtd. 15.09.2011 regarding filing of further affidavit by the Chief Secretary was received by the co-operation Dept. on 16.09.2011 (in the evening).
I n this regard on 17.09.201, Co-operation Dept. prepared proposal for the appointment of Ld. Advocate General, which was sent to the Secretary, Legal Dept. on 19.09.201. The approval from the Legal Dept. was received on 20.09.201 (in the evening).
I say and submit that on 21.09.201, the Deputy Secretary, Co. Op. Dept. requested the Ld. Assit. Govt. Pleader to seek two weeks time for preparing & filing the Affidavit by the Chief Secretary. A copy of the letter Dt. 21.09.2011, annexed herewith and marked as Annexure-R-1 to this reply.
In view of the above mentioned circumstances, the affidavit could not be filed on 22.09.2011."
(emphasize supplied)
23. It would be most appropriate at this stage to set out some of the noting on the file betraying deliberate attempt on the part of the concerned to protect the said officer Respondent no. 5 and rather permitting him on the post despite detailed noting by all the officers including Chief Secretary of the State approving his suspension.
24. On 27.09.2011 this Court passed following order:
This Court on 26/9/2011 observed as under:
"1.
Shri Joshi, learned advocate appearing for the petitioners has made submissions extensively.
2. Learned AGP Ms. Pathak was invited to clarify specifically as to whether in this case the State is in any manner represented by learned Government Pleader or learned Additional Advocate General or learned Advocate General, as the affidavit-in-reply filed by the Chief Secretary of the State contains communication dated 20.9.2011 and 21.9.2011. Ms. Pathak submitted that in this case, learned Advocate General or learned Additional Advocate General or learned Government Pleader are not representing the State and she is to represent the State and she has absolute authority to conduct the matter.
3. Learned AGP further submitted that apropos this court's order dated 8.4.2011, the files containing change in dates and alleged tempering with the record is in custody of the Secretary, Agriculture and Cooperation Department. This is as per the oral instructions she has received from Mr. Jayantibhai Vaghela, the Deputy Secretary, Agriculture and Cooperation Department, who is present in the Court and instructing her.
4. Learned AGP Ms. Pathak under the instruction of Shri Jayantibhai Vaghela, the Deputy Secretary has submitted that file in respect of the proposal containing transfer / suspension of Shri N.I. Patel is at present not available and the same could be available. Learned AGP also to produce the documents, which have been referred to in the affidavit-in-reply filed by the then Secretary Shri Tripathi, Shri Brahmbhatt and Chief Secretary Shri Joti. Orders accordingly.
5. Shri Singh, learned advocate appearing for respondent no. 5 also made submissions.
6. Matter is adjourned to 27.09.2011. The aforesaid files and documents, as ordered, shall be kept ready with learned AGP for perusal of the Court without being insistence of the availability of the copy of this order, as this order is passed in presence of learned AGP and Shri Jayantibhai Vaghela, the Deputy Secretary, Agriculture and Cooperation Department."
Today, during course of submissions, learned AGP, instructed by Shri. Jayantibhai B. Vaghela, Deputy Secretary, Agriculture & Cooperation Department, relied upon various files and notings made by the concerned at various levels. From the submissions made at the Bar,on the part of the State, the Court has gathered that there exists three files in respect of the action to be taken pursuant to the allegation of tampering with the evidence on the part of respondent no.5; (1) The file in respect of proposal for his transfer from the existing place, (2) file containing proposal for placing respondent no.5 under suspension, (3) and the file in respect of initiating the departmental proceeding and preparation of charge sheet for major punishments, which includes two main files and one part file. The Court is of the view that when there is specific submission made at the Bar on behalf of the applicants that there exist deliberate attempt on the part of all the concerned in shielding, defending and harbouring the persons who are responsible for perpetrating or who are facing the allegation of having perpetrated the tampering with the official record, it is all the more incumbent that the Secretary, Agriculture & Cooperation department shall file an affidavit indicating expressly the developments of events with dates, notes put up by various authorities on the file movements. The Court is of the view that the Secretary, Agriculture & Cooperation department shall bear-in-mind while preparing the affidavit that has been ordered herein above, the following:-
1.On 28/4/2011 this Court in Special Civil Application No. 16616 of 2010 recorded as under:
"3.
Mr.Joshi for the petitioner submitted that the report of Mr.Gadhvi, Joint Registrar (Audite) eloquently clear in respect of tampering and petitioner has also preferred Civil Application being Civil Application No.5191 of 2011 in Special Civil Application No. 16616 of 2010. The Court may while disposing of the main matter keep Civil Application alive, so that, grievance made by the applicant in respect of the deponent of the affidavit viz. N.I.Patel - District Registrar Co-operative Society, Ahmedabad (City) may not be whittle down in any manner and it may be processed in accordance with the law.
5. In view of the circumstances, the Court is of the view that when the impugned order itself is quashed, the main matter need not be kept alive, but, disposing the main matter itself, shall not construed by any party as if the Court has accepted the deponents affidavit and thereby exempted him from his liability to answer to the contention raised in the Civil Application No. 5191 of 2011. The Court is of the view that the Civil Application No. 5191 of 2011 be treated as independent application for the prayers made thereunder and while deciding the said application, record and proceedings of the main matter i.e. Special Civil Application No. 16616 of 2010 would be very much essential. The office will see that both the matters are tagged together, despite the fact that Special Civil Application No. 16616 of 2010 is disposed of. If there is a need to send the main matter in Decree Department for certified copy or for other purpose, after the completion of said work the same can be send back and be tagged with the Civil Application No. 5191 of 2011, wherein the affidavit is filed, which is said to be misleading and based upon the forgery is made. It shall be treated as a part of the Civil Application No. 5191 of 2011. The order dated 19.11.2010, which is reported to be vitiated on account of tampering is quashed and set aside so far as the date is concerned.
6. New incumbent - District Registrar Co-operative Society, Ahmedabad (City) is directed to decide the proposal of respondent No.3 - Society afresh, without being influenced by the proceedings as he has to exercise statutory duty cast upon him and while deciding the same, he shall consider all the relevant material and decide it in accordance with law, after offering opportunity to all concerned."
These observations were expected to be understood in its letters and spirit. The Secretary of this department shall therefore indicate unequivocally as to what action so far have been followed, taken or even proposed pursuant to the aforesaid observations.
(2)The show cause notice issued to the respondent no.5 on 27/29-4-2011 contains prima facie opinion based upon the material available to the competent authority, namely the Registrar, Cooperation Department, State of Gujarat, Gandhinagar, that on account of tampering mentioned in the notes there appears to be commission of criminal offence prima facie.
Otherwise the prima facie opinion of the competent authority has expressed unequivocally in the show cause notice itself, where under the respondent no.5 is called upon to explain his conduct in respect of tampering with the record. Then, at which level and under whose instructions the further actions were peddled softly.
(3)The notings contained in the files, mentioned herein above, has prima facie revealed that there exists lack of willingness to even take decision in respect of the prima facie opinion expressed by the Registrar, Cooperative Societies, in his show cause notice.
(4)The movements of files from one department to another and from one party to another and notings made by officers being found inadequate to be made basis for further action, calls for appropriate explanation from all those who are responsible for making notings in the file.
(5)the affidavit filed by the Chief Secretary of the State is not indicative of the action or rather is clearly indicative of lack of action on the part of the concerned.
(6)Learned advocate for the petitioners invited this Court's attention to the document forming part of the proceedings of Special Civil Application No. 6092 of 2011 wherein on an anomalous complaint, inquiry was ordered as could be seen from the document appears to be a communication emanating form the office of Honourable The Chief Minister to the Registrar, Cooperative Societies, for making inquiry. This communication is dated 11/3/2011. Pursuant thereto the inquiry appears to have been entrusted to one Shri B.P. Patel, Assistant District Registrar, by Additional District Registrar (Administration), as the said order is forming part of the compilation at page-189. This is submitted to be an act forming lack of intention to act against respondent no.5 at the appropriate level, as admittedly the one who was asked to look into the affairs as an officer is lower in rank to the person i.e. respondent no.5, whose conduct was entrusted for being inquired.
The Court need not elaborately delve upon the other serious aspects with regard to the involvement of the machinery for investigating crime at this stage. Though detailed submissions were canvassed in respect of the action amounting to offence warranting detailed investigation by the statutory authority so empowered.
These factors are required to be borne-in-mind by the Secretary, Agriculture & Cooperation Department while making an affidavit with all details indicating movement of files and all the relevant extracts which have been available on the file to be part of the affidavit as annexures. The notings and details of movement of files with affidavit be filed by the Secretary, Agriculture & Cooperation on or before 3/10/2011 as requested by learned AGP.
The sealed packet of original records of tampering is ordered to be kept as it is in the custody of the Secretary, Agriculture & Cooperation Department and the seal may not be opened without prior permission of the Court. It goes without saying that files narrated herein above shall be preserved as they are, as now onwards the affidavit that is to be filed is going to contain the notings and extracts made in the files.
Adjourned to 3/10/2011. Office is instructed to make available copy of this order immediately to learned AGP today itself for onward communication."
On 3.10.2011 the Secretary (Co-operation) Agriculture and Co-operation Department Dr. D.H.Brahmbhatt affirmed and filed one more Affidavit as Additional Affidavit with all the noting and submissions made by various officers in respect of the proposal of placing Shri N.I.Patel under suspension its really makes interesting reading. The deponent has averred in paragraph no. 3 of the said affidavit that the sealed packet of original record of tempering pertaining to bye -laws of Patidar Society is has been kept in his custody.
The deponent has further averred in paragraph no, 4 that as per instructions of his predecessor Principal Secretary (Co-Operation ) Shri R.K.Tripathy the Addl. Registrar (Administration ) Office of the Registrar of Co-operative Societies directed all the officers/employees concerned with case to proceed on leave since 21.04.2011. After mentioning this the deponent has stated in the very next paragraph as under "
I say and submit that class ii and iii officers /employees were transferred elsewhere bide order dated 21.04.2011. " Now if one looks at the Affidavit of said Shri R.K.Tripathy it becomes clear that only Shri N.I.Patel was asked to proceed on leave, and others were simply transferred as could be seen from the present affidavit by Shri Brahmbhatt that others were transferred right vide order dated 21.04.2011. It appears to be an attempt to rope in others along with said Shri N.I.Patel but if one looks at the Show Causes notices issued to them by the competent authority all are not facing the serious charges and allegation as imputed on Shri N.I.Patel. In paragraph no 6 the deponent has made following averments.
Para 6 of Addil Affidavit of Secretary " I say and submit that as regards the transfer of the Dist. Registrar Class I, Shri N.I.Patel a proposal was initiated by the Section Officer on 15.04.11, which was cleared by the Under Secretary and Dy. Secretary on 18.04.11 and submitted to the Principal Secretary Agriculture & Co-operation Department on the same day. The Principal Secretary on 21.04.11 proposal ( proposed ?) to post him as Special Auditor (Milk) Mehsana and sent the file to the Addl. Chief Secretary (Personnel) General Administration Department as per channel of submission. Being Mehsana native district of Shri N.I.Patel the said proposal was not found appropriate and therefore general Administration Department with request to the Hon' Minister for Co-operation to propose a posting on non-sensitive post. I say that this file remained there pending and reminder note was sent on 30.06.11 to the Hon' Minister of Co-operation with a request to velar the file , on a separate file , Both the files were returned (alongwith other three files regarding Shri N.I.Patel) to the Secretary (Co-op) with instruction to study all the files and discuss with the Hon' Minister of Cooperation vide his Note dated 24.08.11 which were received by the Secretary (coop) on 5.09.11. A Statement of date of movement and relevant extract of those files are annexed hereto and marked Annexure R 1(Collec) to this reply "
In paragraph no. 10 of the Addl Affidavit the Secretary has averred as under " I say and submit that as regards putting Shri N.I.Patel under suspension, I say and submit that Shri Patel was proceeded on leave since 21.04.11 and the additional charge of his post was entrusted to Shri B.M.Joshi District Reg.(Rural) Ahmedabad. On 2.07.11 when Shri Joshi was on casual leave due to illness Shri Patel resumed one-sided on the same post of Dist.Reg. Coop. Socy (City) Ahmedabad. Hence a proposal regarding suspension of shri N.I.Patel with change in his headquarter was submitted by the Deputy Secretary on 8.7.11 as per channel of submission. This was returned from the Principal Secretary on 11.7.11 with instruction to wait for Vigilance Commission's recommendations. Again this proposal was resubmitted by the Deputy Secretary on 5.8.11 for Consideration and orders as per channel of submission which was endorsed by me on 4.8.11 and sent to the Addl. Chief Secretary (Per (Personnel) ) General Administration Department. The General Administration Department returned the file on 9.8.11 with instruction to resubmit the proposal with specific opinion. Thereafter the said file was resubmitted by my Deptt. With specific proposal of putting Shri N.I.Patel under suspension with changing his Head Quarter to Porbander on 10.08.11. The said proposal was concurred by the General Administration Department and also by the Chief Secretary on 12.08.11 and sent to the Hon' Minister for Cooperation on 16.8.11. This file remained pending there and received back by me on 5.9.11 along with other files as stated earlier. A statement of date of movement and relevant extract of this file are annexed herewith and marked Annexure R 4 (Collec) to this affidavit reply"
In para 11 the deponent has stated as under " I say and submit that as per discussion with the Hon. Minister for Cooperation , I instructed the Dy. Secy on 16.9.11 to put up a comprehensive note containing all the points in all the file which were received back to me on 5.9.11 from the Hon' Minister for Cooperation vide his note dated 24.8.11. The Dy. Secy submitted a comprehensive note on 17.9.11 which interalia contained a request to Hon. Minister for Cooperation to take an appropriate decision urgently on the proposal regarding suspension of Shri N.I.Patel submitted to him earlier on 12.8.11. This proposal was endorsed by me on 19.9.11 and by the Chief Secretary on 19.9.11 and then sent to the Hon. Minister for Cooperation on 20.9.11. He returned back with two queries raised in his notes dated 20.9.11. The file was received back to my office on 21.9.11. I say and submit that the Deputy Secretary submitted me the proposal with clarification on these queries on 22.9.11 for suspension of Shri N.I.Patel for orders of the Hon Chief Minister as prescribed channel of submission. I immediately discussed with the Hon' Min. for Cooperation on telephone and recorded the discussion on the file and asked the Deputy Secretary to submit this file to the Hon. Min. for cooperation personally. The Deputy Secretary approached him and he recorded his orders instructing the Chief Secretary to gather all written complaints received by the Department/Gov. against Mr.N.I.Patel Dist Reg(City) Ahmedabad and proceed as Acts and Rules by higher officer of Secretary level other than the Agriculture & Cooperation Dept . Thereafter I have requested the Chief Secretary to indicate a name of officer of Secretary level as instructed by the Hon' Min for Cooperation vide my note dated 28.09.11."
27. In view of the Addl Affidavit this Court passed an order on 3.10.2011 recording as under :
"1.
The affidavit-in-reply affirmed by one Dr. D.H. Brahmbhatt, IAS, Secretary (Cooperation), Agriculture and Cooperation Department, Gandhinagar is placed on record. As per the affidavit-in-reply and the Annexures at Page Nos. 110 to 113 and the noting of Hon'ble the Minister of the Department, do not indicate any requirement of moving the file to Hon'ble the Chief Minister as there was considered to be no disagreement by Hon'ble the Minister of the Department as recommendations of GAD or else naturally, the file would have been required to be put up to the Hon'ble the Chief Minister as per the Channel of Submission pressed into service by the Secretary in the affidavit-in-reply.
2. The noting dated 22.09.2011 rather go to show that Hon'ble the Minister has not expressed any disagreement with the proposal. In view of this, one fails to understand the inaction thereafter in issuing requisite order of suspension as proposed and approved by all the concerned. The Secretary of the Department in consultation with all concerned is therefore required to place on record the explanation as to when there appears to be no disagreement expressed by Hon'ble the Minister of Department as otherwise the file would have surely put up before Hon'ble the Chief Minister as per the requirement of Channel of Submission evolved by the GAD. The file is not put up before Hon'ble the Chief Minister meaning thereby, there exists no disagreement so far proposal of deponent is concerned. Hence, there ought to have been termed as the inaction after 22.09.2011 till date and therefore it is required to be explained. Hence, the Secretary, (Cooperation), Agriculture and Cooperation Department, shall file affidavit explaining inaction. The affidavit shall be filed by 04.10.2011. Matter is adjourned to 04.10.2011. This order is passed in presence of learned AGP as well as Mr. Ambubhai Maherbanbhai Patel, Incharge Secretary, (Cooperation), Agriculture and Cooperation Department, therefore, the non filing of affidavit on any count would be construed as non-compliance with the order ensuing appropriate observation from the Court. Copy of this order, if required by learned AGP, for on wards transmission, then, office is directed to give copy of this order to learned AGP, if it is demanded, today."
The Secretary Shri Dr. Brahmbhatt filed Additional Affidavit in Reply inter alia pleading his limitation to act in the matter.
In paragraph no. 2 he has stated as under " I say and submit that at the level of Secretary cadre the Secretary is acting as per the Rules of business. Even otherwise also it is not within competency of the Secretary level to have placed the file to the Hon'ble Chief Minister because it was to be done through proper channel"
In paragraph no. 4 it is stated as under " The answering respondent has acted within his limitation and as per the Governing guideline of Government. Hon'ble Court would appreciate the limitation and accept this affidavit in compliance of order dated 3.10.2011. "
After hearing learned advocates the Court on 11.10.2011 inter alia recorded as under :
"Before concluding the hearing in the matter an opportunity was afforded to learned AGP Shri Shah as well as Ms. Pathak to ascertain as to what happened to the proposal of placing respondent no.5 under suspension as mooted and approved on 22/9/2011. Learned AGP Shri Shah has reported to this Court that learned AGP Ms. Pathak telephonically requested Dr. D.H. Brahmbhatt, Secretary (Cooperation), who in turn, after receiving instruction from Hon'ble Minister (Cooperation) informed her that "Secretary, Cooperation does not have any power to deal with the issue of suspension or transfer of Class-I Officer, in this particular case Shri N.I. Patel, Respondent no.5" put up for orders ... ".
Against the aforesaid backdrop of facts and development of events this Court is left with no other alternative but to conclude as under.
There exist serious allegations amounting to committing of criminal offenses against Shri N.I.Patel respondent No. 5 herein above, and the Inquiry officer Shri Gadhvi has recorded his findings accordingly.
The Officer who was subsequently appointed inquiry officer, Shri Khandhar has opined that along with Shri N.I.Patel others are also involved and they cannot escape their liability in tempering the record. Shri Khandhar has opined that time taken by Shri Gandhvi in submitting his report was justified. Shri Khandhar has further recorded that Shri N.I.Patel has conveniently motted any reference of LPA order while according sanction to the amendment.
It is required to be noted that except said Shri N.I.Patel all others have been transferred to other places.
The then Secretary Shri Tripathy has stated on oath in the Affidavit in Action Taken Report that said Shri Patel was instructed to proceed on leave. Shri Brahmbhatt successor of Shri Tripathy has also stated in his affidavit that instructions were issued to said shri N. I.Patel to proceed on leave.
These facts have been denied by said Shri Patel in his reply to the State Authorities.
Shri N.I.Patel has resumed ex parte charge in absence of the officer shri Joshi who was entrusted with the charge of his office. For this unilateral action Shri N.I.Patel's explanation is sought for and disciplinary action is also proposed.
The allegations of tempering with official record with a view to help a party litigant to over reach the interim injunction order of competent court tribunal is not only serious but in fact amounts to an allegation of committing criminal offenses punishable under the provisions of the Indian Penal Code. Hence there cannot be two opinions in respect of taking immediate steps for preventing the officer from doing any further tempering or removing evidences or from repeating such acts in future. The suspension of such officer is absolutely essential in public interest.
The administration up to the Chief Secretary did opine unequivocally time and again for immediately placing this officer under suspension. In fact they initiated and approved two proposal for suspending said Shri N.I.Patel and one proposal for his transfer. But no action or orders were received from the Hon'ble the Minister concerned approving the same.
The Addil. Affidavits in reply filed by Shri Brahmbhatt Secretary of the department with annexure and noting and extracts of relevant averments thereof cited herein above clearly betrays not only ostensible inertia in initiating action against this officer and tacitly permitting him to be safely ensconced in his original post and place in utter defiance of Secretary's instructions in light of the serious allegation recorded to have been prima facie proved by two reports of senior officers, but also leads to indicate uncanny and enigmatic cravings on the part of the concerned authority to shelter and harbor this officer by blatantly avoiding responsibility of approving proposal of his suspensions on one pretext or other.
The shielding of Shri N.I.Patel by the concerned is obvious from the facts narrated herein above. The concerned authority has constantly avoided according of it's approval to the proposal of suspending Shri N.I.Patel on the pretext of raising frivolous queries, without any justification. It's not mere inertia or lack of desire to take action but it's rather an attempt to shield this officer from any disciplinary action and any adverse action likely to visit him on account of the allegation of tempering of record. The respondent no. 5 has earned number of complaints from other quarters also. The enigmatic inaction by the concerned authority against the said officer does not indicate only undeserving, and improper attempt of merely protecting this officer and rendering him impervious to the provisions of law but it rather betrays despotic benevolence and unfortunate exhibition of lack of sensitivity and abandoning of bare minimum of public duty to act in interest of public, which constrained this Court to issue appropriate direction as the concerned authority has evinced blatantly lack of action and unfortunate adamancy in protecting this officer ignoring repeated noting put up by all the concerned.
The tampering of official record with a view to help the party in avoiding prohibitory orders of interim injunction in my view, is not merely miss conduct but it also amounts to committing serious criminal offenses punishable under the Indian Penal Code. The tempering of record in such situation leads to serious inference of motives and strong possibility of involvement of many others at whose instance the tempering might have taken place. The tempering with official record in light of the judgment of the division bench in LPA 39 of 2010 and the prohibitory order of interim injunction by the Board of nominees coupled with observation and preliminary findings of two officers namely Shri Gadhvi and Shri Khandhar persuade this court to hold that the entire incidence of tempering calls for proper investigation by the expert agency armed with the powers of investigation under the provisions Criminal Procedure Code. The Learned Counsel for the respondent no. 5 could not show any reason as to why such criminal investigation shall not be ordered as such it would not be prejudicial to any one. They submitted that the injunction order which was said to be the reason for tempering was in fact not against the respondent no. 5 and he was not to gain personally out of it in any manner. This submission is of no avail as the temporary injunction order is clearly prohibiting all the concerned from acting any further pursuant to the resolution passed by Society in it's meeting dated 21.09.2010. The prima face findings recorded by two officers namely Shri Gadhvi and Khandhar also cannot be brushed aside lightly.
In view of this the Court issues the following directions:-
The State shall forthwith place Respondent No. 5 under suspension and fix his headquarter in such a way as to prevent him from tampering with any evidence of record.
The Secretary of the Department of Co-operation and Agriculture shall forthwith process the suspension of respondent no. 5 and place his suspension order on record of this civil application latest by 6 of January 2012 along with affidavit of compliance.
The Secretary of the Department of Co-operation and Agriculture department shall forthwith hand over the sealed packet containing original papers and record of tampering in the same condition to the Director General of Police, State of Gujarat.
The Director General of Police State of Gujarat shall on receipt of Sealed Packet from the Secretary of the Department of Co-operation and Agriculture shall ensure that the seal is intact and record the same in his acknowledgment receipt which may be placed on record of this civil application by the Secretary of the Department of Co-operation and Agriculture along with his affidavit latest by 6.01.2012.
The Director General of Police State of Gujarat is hereby directed to depute a Senior Police officer not below the rank of the Superintendent of Police for investigating the matter containing in the Sealed Cover in accordance with the provisions of Criminal Procedure Code 1908. The Director General of Police shall not be guided by any one from the State Secretariat in his exercise of entrusting the investigation and he shall use his discretion in entrusting the investigation to an officer of proven integrity and independence.
The concerned Police Officer who may be entrusted with the investigation shall examine the papers including report of Shri Gadhvi dated 24.02.2010 and that of Shri Khandhar and after having lodged formal complaint and FIR proceed further and investigate it strictly in accordance with the provisions of Criminal Procedure Code he shall exercise all the powers including custodial interrogation of the person/persons without any inhibitions and strictly in accordance with the provisions of Criminal Procedure Code. The lodging of formal complaint is required as the full powers to investigate shall be exercised by the Investigating Officer who shall be at liberty to carry out the investigation without any interference from any quarters.
The Investigating Officer shall scurrilously record any attempt from any one including his superiors and other higher authorities, in interfering or influencing the investigation in his diary and it shall be promptly reported to the concerned Magistrate and all the other authorities concerned with investigation. The Investigating Officer shall act strictly in accordance with the provisions of Criminal Procedure Code and shall not be guided by any observations made by this Court in this order as they are made for passing the order but the Investigating Officer shall carry out the investigation independently in accordance with the provisions of CRPC.
After the investigation is over the necessary report be filed to the concerned Court with copy thereof to the Secretary, Cooperation and Agriculture Department, who shall place it on record of this Civil Application.
The Civil Application is adjourned to 28/06/2012. The outcome of the investigation be made part of the proceedings of the Civil Application. It is clarified that in case the investigation is over, an appropriate report is to be filed and the proceedings shall be governed thereafter, as if there was regular criminal complaint. Direct service permitted.
[ S.R. BRAHMBHATT, J ] /vgn