Gujarat High Court
Kailashben Priteshkumar Patel vs State Of Gujarat & 2 on 11 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/2239/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2239 of 2016
==========================================================
KAILASHBEN PRITESHKUMAR PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MS DIMPLE A THAKER, ADVOCATE for the Petitioner(s) No. 1
MS VACHA DESAI, AGP for the Respondent(s) No. 1
MR AR THACKER, ADVOCATE for the Respondent(s) No. 2.1 - 2.2
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 11/03/2016
ORAL ORDER
1. By this writapplication under Article 226 of the Constitution of India, the petitioner serving as an Assistant Professor with the Veer Narmad South Gujarat University, at present under suspension, has prayed for the following reliefs: "9(A) to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ quashing and setting aside the order dated 8.2.2016 passed by the Respondent no.2 University and declaring the said order as bad, illegal, unjust, violative of principle of natural justice and violative of Article 14 and 16 of the Constitution of Inda;
(B) Pending the hearing and final disposal of the present petition, to stay the operation, implementation and execution of the order dated 8.2.2016 passed by the Respondent no.2 University and to restrain the Respondent No.2 University from initiating or proceeding with the departmental inquiry against the petitioner as the same would be illegal, unjust and violative of principle of natural justice;
(C) pending the hearing and final disposal of the petition, to direct the Respondent no.2 University for not restraining the petitioner from Page 1 of 5 HC-NIC Page 1 of 5 Created On Wed Mar 16 01:35:43 IST 2016 C/SCA/2239/2016 ORDER entering into the premises of the University during the period of suspension and pending the departmental inquiry;
(D) for ad interim relief in terms of Para B and C;
(DD) to direct the Respondent University to provide all the documents relief upon by the respondent University for passing the order of suspension against the present petitioner and to not initiate any action against the present petitioner without following the due procedure of law and as prescribed in the rules annexed at Annexure U;
(E) for costs;
(F) Such other and further orders as this Court may deem fit in the
facts and circumstances of the case."
2. It appears that the petitioner has an alternative efficacious remedy in the form of an appeal before the Gujarat Educational Institutions Services Tribunal constituted under the Gujarat Educational Institutions Services Tribunal Act, 2006.
3. Section11 of the said Act referred to above reads as under: Section11 : Application (1) An employee aggrieved by the order or decision of the educational institution which is connected with the conditions of service of such employee or, as the case may be, the educational institution, may within a period of sixty days from the date of such order or decision, make an application to the Tribunal for the redressal of the grievance.
(2) Notwithstanding anything contained in subsec.(1), the Tribunal may entertain an application made to it after the expiry of the period of sixty days, if it is satisfied that the applicant has sufficient cause for not making the application within the said period.
4. Ms. Thaker, the learned counsel appearing for the petitioner made a gallant effort to convince the Court that the appeal is not maintainable and that the only remedy is to invoke the writ jurisdiction of this Court under Article 226 of the Constitution. Ms. Thaker also tried her best to Page 2 of 5 HC-NIC Page 2 of 5 Created On Wed Mar 16 01:35:43 IST 2016 C/SCA/2239/2016 ORDER convince that the order of the suspension itself was not warranted as the leave was sanctioned in favour of her client by the authority concerned.
5. I am not inclined to go into the merits of the order of suspension since I am of the view that the appeal is maintainable. A coordinate bench of this Court had an occasion to deal with the very same issue, with which I am confronted in the case of 'Adesh Pal Vs. University Grant Commission And Ors.' in Special Civil Application No.4715 of 2015; decided on 05.05.2015.
6. I may quote the relevant observations as contained in Paras16, 17, 18, 19, 20 and 21.
16. This Act makes it clear that any employee if is aggrieved by any decision of the educational institution which connects his service conditions, he has an efficacious alternative remedy of preferring an appeal to the Tribunal.
17. A combined reading of sections 10 and 11 of the said Act reveal that the petitioner herein undoubtedly is an employee of the university which is the university constituted under section 2(m) of the Hemchandracharya North Gujarat University Act, 1986. Either the original order or the appellate order or any decision of the educational institution connected with the conditions of service of such employee, he/she is required to challenge the same before the Tribunal within the period of 60 days from the date of such order. The Tribunal may entertain appeal of the employee on expiry of prescribed period of 90 days, if it is specified that sufficient cause is made out of not preferring the appeal within the prescribed period.
18. The appointment of the petitioner by the university on 13.4.2006 as Director of the Centre for Indian Diaspora and Cultural Studies as programme coordinator of UGC approved Area Study Centre was in a capacity of the professor of the university. He was not only to work as programme coordinator, but, one of the conditions was that such activities were to be carried out in such a manner that normal teaching work and academic activities of the department of English would not be disturbed at all.
19. There was no direct relation of the employee with UGC. There being no privity of contract as UGC is concerned with the universities Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Mar 16 01:35:43 IST 2016 C/SCA/2239/2016 ORDER and the university would surely have every right to question the alleged illegality or irregularity committed by the employee. Under the circumstances if the university passed an order having the jurisdiction to inquire into the fund allocated to it by UGC for the purpose of specified Area Study Centre, the employee aggrieved by such order of such inquiry shall have to take recourse to the appeal provided under the Gujarat Educational Institutions Services Tribunal Act,2006. Efficacious alternative remedy is already made available under the said statute.
20. In the case of Sadhana Lodh vs. National Insurance Co.Ltd. and another reported in (2003) 3 SCC 524, the Apex Court held that the right to appeal is a statutory right where the law provides remedy by way of filing an appeal on limited grounds and such challenge cannot be enlarged by filing a petition under Articles 226 and 227 of the Constitution of India. It would be profitable to reproduce the findings and observations of the Apex Court as under:
6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd, Chandigarh vs. Nicolletta Rohtagi and others 2002(7) SCC 456). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 C.P.C., in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115 C.P.C., no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution.
Page 4 of 5HC-NIC Page 4 of 5 Created On Wed Mar 16 01:35:43 IST 2016 C/SCA/2239/2016 ORDER
7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.
21. For the aforesaid reasons, this Court is of the view that the petitioner since is having a remedy of filing an appeal before the Tribunal, this Court cannot entertain this petition under Article 226 of the Constitution of India. Accordingly, neither the Civil Application nor the Special Civil Application deserve to be entertained only on the ground of maintainability. This Court has not touched the merit of the matters except for deciding the issue of maintainability. Any observation made by this Court on the aspect of merit for the aforementioned purpose shall not come in the way of the either side before the appropriate forum."
7. In view of the above, without going into the merit or expressing any opinion on the merits of the case, this petition is disposed of with liberty to the petitioner to prefer an appropriate appeal before the Tribunal. If any such appeal is filed by the petitioner, the Tribunal shall consider the same expeditiously in accordance with law.
(J.B.PARDIWALA, J.) aruna Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Mar 16 01:35:43 IST 2016