Gujarat High Court
State Of Gujarat vs Dharampal Subhashchandra Jakhad on 21 October, 2020
Author: J.B.Pardiwala
Bench: Vikram Nath, J.B.Pardiwala
C/LPA/786/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 786 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 6087 of 2017
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STATE OF GUJARAT
Versus
DHARAMPAL SUBHASHCHANDRA JAKHAD
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Appearance:
GOVERNMENT PLEADER(1) for the Appellant(s) No. 1,2,3
HIMANSHI R BALODI(8919) for the Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date : 21/10/2020
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This appeal under Clause 15 of the Letters Patent is at the instance of the State of Gujarat and others being the original respondents and is directed against the judgment and order passed by a learned Single Judge of this Court dated 25.02.2019 in the Special Civil Application No.6087 of 2017, by which, the learned Single Judge allowed the writ application filed by the respondent herein (original writ applicant).
2. The facts giving rise to this appeal is borrowed from Para-3 of the impugned judgment. Para-3 reads thus:
"The facts in nutshell are that the petitioner was appointed on 1.2.1983 as Police Constable in State Reserved Police Force, Group No.12, Gandhinagar, and he served as such Page 1 of 8 Downloaded on : Sat Aug 21 14:39:46 IST 2021 C/LPA/786/2020 ORDER till he was dismissed from service by order dated 3.3.2012 passed by the respondent No.3. A charge sheet was served upon the petitioner by the respondent no.3 for holding a departmental inquiry into the charge inter alia that at the time of appointment, he had produced false leaving certificate. An inquiry officer was appointed to hold the departmental inquiry, who as per his report found the charge proved against the petitioner. A show cause notice dated 17.3.2011 was issued to the petitioner calling upon him for imposing a penalty of dismissal. By order dated
3.3.2012, the petitioner came to be dismissed from service. Against this order of dismissal, the petitioner filed an appeal before the Deputy Inspector General of Police, Armed units, Gandhinagar. By order dated 19.10.2012, the appeal of the petitioner was rejected. Thereafter, the petitioner filed Revision Application before the Director General and I.G.P.. By order dated 18.4.2013, the revision application has been rejected. Hence, this petition."
3. It appears that the learned Single Judge relied on a decision of this Court in the case of Mahendrasinh Gayaprasad Mali vs. State of Gujarat rendered in the Special Civil Application No.2224 of 2012, decided on 13.07.2018. The facts in the case of Mahendrasinh (supra) were similar and the issues involved were also identical and, in such circumstances, the learned Single Judge granted the benefit of the said judgment to the respondent herein (original writ applicant). In Mahendrasinh (supra), the learned Single Judge observed and held as under:-
"The complaint on the basis of which inquiry has proceeded is anonymous. In pursuance to the advertisement for filing up approximately 1600 posts of constables, the petitioners have approached the respondents authority. They submitted applications along with the necessary documents including School Leaving Certificates as well as birth certificates. At the time of selection, the original certificates of qualification as well as date of birth were taken by the respondents. Out of these 1600 constables, the issue seems Page 2 of 8 Downloaded on : Sat Aug 21 14:39:46 IST 2021 C/LPA/786/2020 ORDER to have been raised in Group XII. It is not in dispute that officials of the respondents who were required to maintain record of the petitioners have come out with a plea that, they have lost the certificates. These certificates were produced by the petitioners in the year 1983 and were part of service record. Surprisingly, all these petitioners are residents of other States. No such suspicion has been raised regarding appointments of remaining 1400- 1500 constables who are stated to be from the State of Gujarat. On one hand, these certificates are claimed to have been lost by the Employer and coincidently, at that very moment, an anonymous application is received by the employer that let these certificates be again asked from the concerned constables. The authority seems to have not taken into consideration the fact that these constables have come from other States and had left their homes 20/30 years ago. Most of these constables seem to be from the States of U.P. and Bihar etc. It is known fact that schools and village panchayats of these States are not well equipped to maintain the record in a proper way. This is particularly so when places where such records are kept gets generally washed away during floods and rains. The respondents have asked the petitioners to produce record which might be more than 40 years old. If old service record of the petitioners could not be maintained by State of Gujarat for 20/30 years, how do one expect undeveloped States like U.P. and Bihar could maintain such records." (para-16) "The inquiry officer was required to conduct inquiry at the Head Quarter of the respondents, however, he seems to have conducted ex-parte inquiry at the places where schools of these constables were situated. The petitioners have not been afforded sufficient opportunity to cross- examine the witnesses who have been examined by the respondents. In some of the cases, even the record is found correct, however, services of these petitioners are terminated." (para-17) "The appellate authority seems to have adopted different yard-sticks while dealing with the different people for the same allegations. As pointed out by the learned senior counsel, one constable namely Sardarsing Sohansing Ahir, who was recruited with the petitioners and have put in 19 Page 3 of 8 Downloaded on : Sat Aug 21 14:39:46 IST 2021 C/LPA/786/2020 ORDER years of service. The appellate authority quashed and set aside the order of dismissal for the reasons that he has put in 19 years of service. The case of the petitioners is even more stronger because at the time of dismissal, these petitioners have put in 27-28 years of service." (para-18) "Original certificates produced by the petitioners are stated to have been lost by the respondents. The petitioners have been asked to produce duplicate certificates or certified copies of the original certificates which have been lost. This Court is of the considered opinion that the petitioners cannot be asked to create evidence against themselves. Action of the respondents is also against the Bombay Police Manual. The respondents were required to follow the Bombay Police Manual which is still a good law even after publication of Gujarat Police Manual which does not contain any provision about the disciplinary action against S.R.P. Personnels. Besides, Rule 47(4) of the Bombay State Reserve Police Force Rules, 1959, makes the Bombay Police Manual applicable to the State Reserve Police Force."
(para-19) "During the course of arguments, learned counsel for the petitioners has agreed in principle that, in case, the main prayer of the petitioners for reinstatement cannot be granted, then substitute the order of dismissal with voluntary retirement." (para-20) "Admittedly, all the petitioners have spent best part of their life in service of the respondents. They have worked for about 30 years when they have been dismissed from service. By now, most of them might have reached to the age of superannuation and might have found alternative job though such jobs are difficult to get at fag end of the life. However, keeping in view the circumstances of these cases, the order of dismissal can be substituted with the order of voluntary retirement." (para-21) 5.1 It was finally directed thus, Page 4 of 8 Downloaded on : Sat Aug 21 14:39:46 IST 2021 C/LPA/786/2020 ORDER "As a result of foregoing discussions, these petitions are partly allowed. Petitioners are ordered to be treated as voluntary retired in place of dismissal. The petitioners will be treated to have retired from service. They will be entitled to pension and other pensionary benefits from that date, but they will not be paid any arrears for the aforementioned period i.e. from the date of retirement till the decision by this Court. However, they will be entitled to full pension after this date i.e. decision of this Court. Rule is made absolute to the aforesaid extent in all these petitions."
4. Applying the ratio of the aforesaid judgment, the learned Single Judge ultimately concluded in para-6 as under:-
"As a result, the petitioner is ordered to be treated as voluntarily retired in place of dismissal. The petitioner will be treated to have retired from service accordingly and will be entitled to pension and other pensionary benefits from such date but he will not be entitled for any arrears for the period from the date of retirement till the date of present petition is decided. However, it is clarified that the petitioner will be entitled to full pension after the date of present order."
5. The State of Gujarat, being dissatisfied with the impugned order passed by the learned Single Judge, is here before this Court with the present appeal.
6. We have heard Mr. Dharmesh Devnani, the learned AGP appearing for the appellants and Mr. Anand Sharma, the learned counsel appearing for the respondent (original writ applicant).
7. We take notice of the fact that the judgment in the case of Mahendrasinh (supra) relied upon by the learned Single Judge was carried in appeal by the State of Gujarat being the Letters Patent Appeal No.1115 of 2019. A Coordinate Bench of this Court disposed of the Letters Patent Appeal No.1115 of 2019 and allied appeals by common judgment and order dated 7 th Page 5 of 8 Downloaded on : Sat Aug 21 14:39:46 IST 2021 C/LPA/786/2020 ORDER May,2019. The order passed by the Appeal Court reads thus:-
'Having considered the submissions of the learned counsel for the respective parties, what needs to be appreciated is that:
(A) The respondents were appointed in the State Reserve Police Force as early as in the year 1982-83.
(B) At no point of time was there a whisper or a suspicion about the genuineness of the School Leaving Certificates that the respondents - original petitioners had produced before the appointing authority.
© In fact, a clear and categorical opinion was rendered by the Addl. Director General of Police in the year 2010 that it will be futile to impose any penalty on the respondents in view of the long tenure of service having undergone.
(D) It was a specific and clear case where in fact, the employer State to whom the Certificates were handed over to was not in possession of the original service record. It was, therefore, a situation where an employee was asked to prove the genuineness of the Certificate which in fact was handed over to the employer and who had lost the service record.
(E) Apparent violation of principles of natural justice was evident on reading the Inquiry Officer's Report, as is evident from the directions issued by the learned Single Judge. In fact, no departmental proceedings were held and only statements of the Principals were recorded without following the principles of natural justice. This even cannot be called to be a departmental proceeding as sought to be made out.
8 The upshot of all these is that the appellants sought to resurrect an issue after a period of more than 20 years after the respondents were appointed. The very function of the proceedings was an anonymous application. It is a fact that the employer-State was not in possession of the original certificates, which the applicants/respondents had handed over to the employer and the administration lost the copy of such certificates which were part of the service record in the year 1983. It is a sheer coincidence that such certificates Page 6 of 8 Downloaded on : Sat Aug 21 14:39:46 IST 2021 C/LPA/786/2020 ORDER are claimed to have been lost by the employer and at the very moment an anonymous application is received.
9 The employees had to approach this Court in the third round of litigation and what the learned Single Judge has done is limited the relief in exercise of powers under Article 226 of the Constitution of India.
10. Even otherwise, the records of service of the respondents - original petitioners have been unblemished. The employer confronted the petitioners with the statement of the school principal qua their record. The school authorities' statements were recorded which said that the documents were forged. Therefore, looking to the passage of time and the fact that Mr. Jeet P Bhatt, learned counsel for the respondents concedes that he is willing to restrict the further relief and concede that the respondents - original petitioners be entitled to pension at 50% of the receivable amount and that too not from the date of dismissal but from the date of the judgment of the learned Single Judge i.e. from 13.07.2018 or the date of superannuation of the concerned respondents whichever is later, the directions issued in para 22 of the oral judgment under challenge are modified as under: The appeals are partly allowed. The respondents - original petitioners will be treated to have voluntarily retired from service from the date of the order of dismissal. They will be entitled to pension at 50% of the receivable amount. Such amount of pension @ 50% of the receivable amount shall be payable to the respective respondents from the date of the judgment of the learned Single Judge i.e. 13.07.2018 or the date of their respective superannuation, whichever is later. The other pensionary benefits shall also be payable to the respondents, accordingly. However, the respondents shall not be entitled to be paid any arrears for the aforementioned period i.e. from the date of their dismissal (now considered as voluntary retirement) till the date of decision of this Court or their respective date of superannuation, whichever is later. Civil Applications (For Stay) are also accordingly disposed of."
8. We propose to dispose of the present appeal also in terms of the order passed by the Coordinate Bench in the Letters Patent Appeal No.1115 of 2019 and allied appeals.
Page 7 of 8 Downloaded on : Sat Aug 21 14:39:46 IST 2021 C/LPA/786/2020 ORDER9. Mr. Sharma, the learned counsel appearing for the respondent would submit that the very same order may be passed as the one passed in the Letters Patent Appeal No.1115 of 2019.
10. In the result, this appeal is partly allowed. The respondent (original writ applicant) shall be treated to have voluntarily retired from service from the date of the order of dismissal. He would be entitled to draw pension at 50% of the receivable amount. Such amount of pension at the rate of 50% of the receivable amount shall be payable to the respondent herein from the date of the judgment of the learned Single Judge, i.e, 25.02.2019 or the date of his superannuation, whichever is later. The other pensionary benefits shall also be payable to the respondent accordingly. However, the respondent shall not be entitled to be paid any arrears for the afore-mentioned period, i.e, from the date of his dismissal (now considered as voluntary retirement) till the date of the decision of this Court or the respective date of superannuation, whichever is later. The appeal stands disposed of accordingly. Civil application, if any, also stands disposed of.
(VIKRAM NATH, CJ) (J. B. PARDIWALA, J) Vahid Page 8 of 8 Downloaded on : Sat Aug 21 14:39:46 IST 2021