Gujarat High Court
Rameshbhai vs Gujarat on 28 November, 2011
Author: R. Tripathi
Bench: Ravi R.Tripathi
Gujarat High Court Case Information System
Print
CA/11746/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR ORDERS No. 11746 of 2011
In
SPECIAL
CIVIL APPLICATION No. 14511 of 2010
=========================================================
RAMESHBHAI
NATHUBHAI - Petitioner(s)
Versus
GUJARAT
STATE ROAD TRANSPORT CORPORATION THRO'LEGAL ADVISOR - Respondent(s)
=========================================================
Appearance
:
MR.P.C.
CHAUDHARI for
Petitioner(s) : 1,
MR.T.R. MISHRA for Mr.ASHISH M DAGLI for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 28/11/2011
ORAL
ORDER
The present application is filed by Rameshbhai Nathubhai, applicant - original respondent in Special Civil Application No.14511 of 2010 praying that, "6(B) Your Lordships be pleased to pass the order or direction directing the opponent to forthwith comply with the provisions of sec.17B of Industrial Disputes Act, 1947 and pay the arrears as per the last drawn salary to the concerned applicants from the date of award till today."
2. The Court inquired as to when was the order passed granting benefits under section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") the learned advocate replied that it was on 25th April 2011. It was then inquired as to when this application is filed, the learned advocate replied that it was field on 10th November 2011. It was then inquired as to why it was filed after 8 months, the learned advocate replied that he had sent this application for affirmation and it was affirmed on 18th September 2011. It was again inquired as to why the application was drafted in the month of September 2011 and sent for affirmation, the learned advocate replied that he gave notice to Gujarat State Road Transport Corporation (GSRTC) in the month of June 2011 for complying with the provisions of section 17B of the Act, but GSRTC did not comply with the provisions. The learned advocate then prepared Civil Application. The Civil Application along with affidavit runs into 5 pages, of which 1 page is title page. In fact, the memo of Civil Application is only of 2½ pages. The learned advocate took more than two months to draft out the Civil Application and send it for affirmation. Though it is affirmed on 18th September 2011 it is filed only on 10th November 2011.
On perusal of papers it is noticed that the statement of the learned advocate of having sent this application to the client for affirmation is found to be incorrect, because the application is affirmed before Notary, Mr.S.G. Goswami, who is registered as Notary at Ahmedabad District.
(emphasis supplied)
3. On inquiry as to whether the services of the applicant were terminated on account of corruption charges, the learned advocate for the applicant submitted that the applicant was convicted for offence under section 302 of IPC, but in an appeal filed before the High Court he was acquitted of charge under section 302 of IPC. By just turning pages the Court noticed a copy of order passed in Criminal Appeal No.516 of 1987 with Criminal Appeal No.740 of 1987 which is produced at Annexure 'C', pages 28 to 36, typed copies of which are produced at pages 36A to 36H. Last para of that judgement reads as under:
"In the result, Criminal Appeal No.516/87 filed by accused Rameshbhai Nathubhai Patel is partly allowed and the order of conviction u/s 302 IPC and sentence of life imprisonment is modified and he is convicted for offence u/s 304-Part I IPC and the order of sentence as sentence already undergone is passed. It is therefore ordered that the accused- appellant Rameshbhai Nathubhai Patel be released forthwith, if not required in connection with any other offence. (emphasis supplied) Criminal Appeal No.740/87 is dismissed."
4. On inviting the learned advocate's attention to this, the learned advocate submitted that under S.R. 81, section 304, Part-I of the IPC is not included in the list and therefore, a person though convicted for offence under section 304, Part-I of the IPC can be reinstated and continued in service and is also entitled to claim back wages. On request, the learned advocate for the applicant made available a copy of the Confidential Circular No.328. The subject of the Circular is, "termination of services of an employee under S.R. 81". The learned advocate for the applicant has highlighted a portion in that circular and that highlighted portion is as under:
"2. .. .. employees for offence connected with the affairs of the S.T."
3. When an employee is convicted for offences involving normal (sic., moral) turpitude not connected with affairs of the S.T. The services of such an employee may be terminated by the appointing authorities under S.R. 81.
The offences which can be generally taken into consideration while terminating the services under SR 81 are specified below:
sec.279 IPC Rash driving or riding on a public way.
Sec.302 IPC murder sec.337 IPC Causing hurt by act endangering life or personal safety of others sec.338 of IPC Causing grievous hurt by act endangering life or personal safety of others.
Sec.341 of IPC Wrongful restraint.
Sec.363 of IPC kidnapping.
Sec.366 of IPC kidnapping, abducting or inducing woman to compel her for marriage, etc. sec.376 of IPC rape sec.379 of IPC theft sec.392 of IPC robbery sec.395 of IPC dacoity sec.406 of IPC criminal breach of trust.
Sec.411 of IPC dishonestly receiving stolen property.
Sec.465 of IPC forgery sec.494 of IPC marrying again during the life time of husband or wife.
Sec.497 of IPC adultery sec.498 of IPC enticing or taking away or detaining with criminal intent a married woman.121
IPC conspiring to commit certain offences against the State.124
IPC sedition.
147 IPC rioting.148
IPC rioting.
151IPC knowing joining or continuing in any assembly of five or more persons after it has been commanded to disperse.
Offences under sec.4, 5 & 12 of Gambling Act. Offences u/s 66, 85(1), (2), (3) of the Bombay Prohibition Act."
5. The learned advocate for the applicant submitted that as the offence under section 304, Part-I is not included in the aforesaid list, the applicant was within his right to claim reinstatement. The aforesaid submissions made by the learned advocate for the applicant causes serious concern. This Court is of the opinion that the learned advocate for the applicant has misled and misrepresented before the Court by not inviting attention of the Court to the opening para of the Confidential Circular No.328, which reads as under:
"Under SR 81, the appointing authority has been empowered to terminate the services without notice of an employee if he has been convicted in a criminal court or has been declared insolvent by a competent court. .. .. " (emphasis supplied) The Court is of the opinion that if this matter is not referred to the Bar Council for taking necessary disciplinary action against the learned advocate for the applicant, there will be miscarriage of justice.
The Registry is directed to send a copy of this order along with a copy of the Confidential Circular No.328 to the Bar Council of Gujarat for placing the same before the Disciplinary Authority for taking necessary action in the matter.
6. In view of the aforesaid facts the Civil Application is dismissed.
7. Taking into consideration the glaring facts, the Registry is directed to notify Special Civil Application No.14511 of 2010 for final hearing on 30th November 2011.
(RAVI R. TRIPATHI, J.) karim Top