Gujarat High Court
Pravinkumar Hariprasad Gupta vs Bosson Mohandoss Bosson & 4 on 10 July, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/31261/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 31261 of 2016
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PRAVINKUMAR HARIPRASAD GUPTA....Applicant(s)
Versus
BOSSON MOHANDOSS BOSSON & 4....Respondent(s)
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Appearance:
MR ASHISH B DESAI, AMICUS CURIAE, ADVOCATE for the Applicant(s) No.
1
PARTY-IN-PERSON, ADVOCATE for the Applicant(s) No. 1
MS SHRUTI PATHAK, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 5
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 10/07/2017
ORAL ORDER
1.Applicant is a partyinperson, who seeks, by way of writ of mandamus or any other appropriate writ quashing and setting aside of the termination order passed by respondent No.1School on 20.2.2006.
2.While respondent No.1 was serving at Aditya Birla Public School a show cause notice came to be issued against him on 9.1.2004 for alleged misconduct committed by him as teacher. Pursuant to an inquiry Page 1 of 12 HC-NIC Page 1 of 12 Created On Sun Jul 23 23:43:43 IST 2017 R/CR.MA/31261/2016 ORDER conducted by the school, the charges were held to be proved, and therefore, a show cause notice also was served upon the present applicant. It was decided by the Management to dismiss the applicant from service as Assistant Teacher from the School and, accordingly, approval of the Commissioner of School, Gandhinagar was sought invoking deeming provisions, as no reply was given by the Commissioner of Schools. As per section 14(3) of the Gujarat Higher Secondary Schools Services Tribunal Act, 1983, the school proposal is deemed to have been approved within stipulated time period. The order came to be passed by respondent No.1School dismissing the applicant as Assistant Teacher with immediate effect.
3.This was challenged before the Gujarat Higher Secondary School Service Tribunal (for brevity "the Tribunal") being Application No.257 of 2006. The Tribunal was not inclined to interfere with the termination order. His earlier application being Application No.172 of 1996 filed before another Tribunal was dismissed for default. Yet another application being Application No.86 of 2006 which Page 2 of 12 HC-NIC Page 2 of 12 Created On Sun Jul 23 23:43:43 IST 2017 R/CR.MA/31261/2016 ORDER was dismissed for default was not disclosed by the applicant. On cumulative reading, the Tribunal did not entertain the application.
4.This was challenged before this Court by preferring Special Civil Application No. 9407 of 2014, Special Civil Application No.9408 of 2014 and Special Civil Application No.9409 of 2014 for setting aside the order of dismissal with reinstatement and continuity of service so also for regularizing provident fund facility. All the three petitions were heard together and this Court on 10.1.20017 dismissed all the three petitions.
5.Letters Patent Appeal is preferred by the present applicant against dismissal of these petitions.
6.Present application is preferred for initiating criminal action against school authority for not having complied with the directions of the Tribunal. According to the applicant, despite direction of the Tribunal, the respondent authorities did not comply with those directions. They have indulged into cheating perjury and deceit. He, therefore, has sought initiation of criminal action against the Page 3 of 12 HC-NIC Page 3 of 12 Created On Sun Jul 23 23:43:43 IST 2017 R/CR.MA/31261/2016 ORDER respondents. All proceedings before the Tribunal since are deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Code of Criminal Procedure, the Tribunal also can initiate actions under the Code of Criminal Procedure for the act of perjury, deceit and fraudulent act. On earlier occasion, the applicant had preferred Criminal Miscellaneous Application for direction.
7.This Court passed the following order vide order dated 23.3.2016 in Criminal Miscellaneous Application No.5409 of 2016, which is reproduced hereunder: "1. Applicant as a partyinperson, has sought following reliefs: "(62) PRAYER:
Petitioner request for High Secondary salary from the Date of Joining 02081985, with arrears and other facilities as per Govt. Rules. Petitioner also request for the salary release from 20022006 with immediate effect of sustenance of his life. Petitioner also request the Court and Honble Judge for regularizing the P.F. Facilities which the school gives highest to principal of the school. Petitioner has served in the school for more than 20 years, therefore, pension facilities should be provided. Petitioner request the Court for the facilities which are applicable to Higher Secondary teacher in the Page 4 of 12 HC-NIC Page 4 of 12 Created On Sun Jul 23 23:43:43 IST 2017 R/CR.MA/31261/2016 ORDER Govt. school. The dismissal order is wrong, therefore, the petitioner requests the Court to set aside the dismissal order.
2. Against his termination order and for payment of his wages etc., he already had approached Gujarat Higher Secondary School Services Tribunal. His litigations in relation to his service matter are going on for a long time before different authorities. It appears that before the Additional Chief Judicial Magistrate, he preferred a complaint under section 420 of the Code of Criminal Procedure on the ground that due to deceitful act of the respondent, he has suffered the agony from the year 1989 and such act has deprived him of his legitimate dues. It is also his allegation that respondent manipulated the records giving rise to criminal actions. It is a false and fabricated evidence presented in the judicial proceedings by the respondents, which he has alleged in this application.
3. The Court had called for report under section 202 of the Code of Criminal Procedure. Such report was sent by Veraval city police station on 28.1.2014, which states that the petitioner herein was a resident of Bihar and from the year 1985 he served Indrayon School of Aditya Biral Group as a Science Teacher. He was dismissed from service from the year 2006 and therefore is now spending his life as a retired teacher. Principal of Indrayon School dismissed him without any reason or evidence. Applicant preferred Inquiry Case No.41 of 2010. As he was not satisfied, applicant preferred Inquiry Case No.52 of 2013. He then went to Gujarat Higher Secondary School Services Tribunal, Ahmedabad. No reply has been given to him till date. Due to his misconduct with the students and parents, on the basis of the complaint of the Principal, the Management committee had issued Page 5 of 12 HC-NIC Page 5 of 12 Created On Sun Jul 23 23:43:43 IST 2017 R/CR.MA/31261/2016 ORDER show cause notice to the petitioner in January, 2004 and after conducing the inquiry by appointing an inquiry officer, second show cause notice dated 21.9.2005 was issued and after following due process, he was dismissed.
4. Before he was dismissed, the letter received from District Education Officer (DEO) dated 23.12.2004 had indicated that school being a nongrant school, the issue deserves to be handled at the school level and at the DEO level the issued was already filed. It is further noted that the then Principal after dismissing him from the service vide his communication dated 20.2.2006, had also given him the sum of Rs.44,226/. The petitioner had filed Application No.172 of 1996 before Gujarat Secondary Education Tribunal which had been dismissed for default on 13.4.2005. The second case being Case No.86 of 2006 also had been dismissed on 17.11.2006. Later on Application No.257 of 2006 was preferred which has been dismissed on 30.11.2010. He preferred Review Application No.30 of 2011 which was rejected on 11.1.2012. Once again he preferred Review Application No.2 of 2012 which was rejected on 1.2.2012.
5. The petitioner, therefore, preferred a complaint against the Principal. Opinion of the police indicated that no element of cheating from the complaint could be culled out against the order of dismissal. He had already preferred a complaint before the Gujarat Secondary Education Tribunal, which came to be repeatedly rejected. The petitioner has not mentioned anywhere in the present petition as to what has happened to his Criminal inquiry. Thereafter, no order is also brought on record. It appears that after receipt of such report, possibly the Court may not have entertained his petition, and therefore, he is before this Court. Even nothing is made out to indicate any Page 6 of 12 HC-NIC Page 6 of 12 Created On Sun Jul 23 23:43:43 IST 2017 R/CR.MA/31261/2016 ORDER illegality in such report and not issuing the process.
6. No civil litigations are pending including any Special Civil Application before this Court challenging the order of the Tribunal. No case, in the opinion of this Court, even prima facie is made out for this Court to entertain this petition.
Resultantly, the application is dismissed."
8.Once again application is preferred. In this application, the Registry has also raised an objection and on verification, it found the prayer to be of civil nature.
9.This Court had also particularly questioned the partyinperson. Since he was unable to assist the Court, learned advocate Mr.Ashish Desai was appointed as amicus curiae, who has appreciably assisted the Court on the issue in question raised here by the party in person in his written as well as oral submission that when repeatedly the Tribunal passed an order and the authorities did not comply with the same, and instead had committed perjury and also indulged in the act of cheating and deceit, the actions are indeed to be initiated against the respondent authorities and the Tribunal since has failed to initiate them either under section 340 of Page 7 of 12 HC-NIC Page 7 of 12 Created On Sun Jul 23 23:43:43 IST 2017 R/CR.MA/31261/2016 ORDER the Code of Criminal Procedure or under any other provisions, this Court may issue writ of mandamus commanding the Tribunal to initiate such actions.
10.Learned advocate Mr. Ashish Desai, an amicus curiae, has urged that this Court on earlier occasion had rightly not entertained the petition of the applicant, which does not deserve to be entertained on criminal side. He further has urged that the Tribunal has wide powers even to initiate the actions. He also has urged that the applicant is already before the Letters Patent Appeal Bench where if the Court deems it fit, it can grant other and further reliefs. No relief can be asked in the present proceedings, as the proceeding itself is not maintainable.
11.Learned Additional Public Prosecutor Ms.Shurti Pathak also supported the submissions putforth by the learned advocate Mr. Ashish Desai. She also further argued that this Court in Criminal Miscellaneous Application No.5409 of 2016 had dismissed the plea of the applicant and found him having suppressed certain material and also the fact of his having approached the Tribunal. She also Page 8 of 12 HC-NIC Page 8 of 12 Created On Sun Jul 23 23:43:43 IST 2017 R/CR.MA/31261/2016 ORDER urged that independently also, the applicant can approach the Tribunal.
12.Having thus heard learned advocates for both the sides so also the party in person, for the reasons to follow hereinafter, the application merits no sustenance.
13.As is apparent from the order passed by this Court on 23.3.2016 in Criminal Miscellaneous Application No. 5409 of 2016, the very relief was also sought earlier by the applicant, which has not been entertained by this Court.
14.The applicant was also asked before initiating the hearing of this matter as to whether he would like to make any change, whether he wanted any re thinking over the issue, as in no manner, the Criminal Miscellaneous Application is maintainable, to which he had declined specifically.
15.It is true that the proceedings before the Tribunal are judicial in nature and, therefore, any one who commits perjury or any act which would amount to an offence during the course of the proceedings of any matter, there are provisions available under the Page 9 of 12 HC-NIC Page 9 of 12 Created On Sun Jul 23 23:43:43 IST 2017 R/CR.MA/31261/2016 ORDER Chapter 11 of the Indian Penal Code under the Heading of "false Evidence and offence against public justice" which can be resorted to. The procedure is also prescribed under sections 340 and 344 of the Code of Criminal Procedure.
16.Section 195 of the Code of Criminal Procedure also requires reference at this stage. However, it was for the concerned Tribunal to decide as to whether there was any case made out for initiating action on criminal side against respondent authorities. Moreover, against the order of the Tribunal, the challenge had been made to this Court by preferring various petitions where, essentially, challenge is to the order of dismissal. The applicant is aggrieved by the fact that true and correct material has not been allowed to be bought on record by the respondent authorities. Applicant is already before the Letters Patent Appeal Bench where also, the applicant has a course open to make a request for initiating action against those who have allegedly acted to adduce false evidence or has not permitted correct evidence to come on record.
17.In any case even as rightly pointed out by learned Page 10 of 12 HC-NIC Page 10 of 12 Created On Sun Jul 23 23:43:43 IST 2017 R/CR.MA/31261/2016 ORDER advocate Mr. Desai and learned Assistant Government Pleader, the applicant can also approach the concerned Tribunal for initiation of such action. It was the prerogative of the Tribunal to have so done if it felt that either on the ground of perjury or on the ground of noncompliance of its direction, there was a need to initiate such action. No such request so far has been made to the Tribunal nor any such request has been reiterated in Special Civil Application No.9407 of 2014 and allied matter. One of the grounds raised was of remanding the matter. There also the applicant could have urged in his Special Civil Application, in the present form, is not maintainable. However, while dismissing this, it is being clarified that, this Court has not concluded on the merit of the issue raised. This being not a proper forum, the applicant would be at liberty to agitate this issue by taking appropriate recourse under the law. Rejection of this application shall not come in the way of the applicant.
18.Application stands disposed of accordingly.
Page 11 of 12 HC-NIC Page 11 of 12 Created On Sun Jul 23 23:43:43 IST 2017 R/CR.MA/31261/2016 ORDER (MS SONIA GOKANI, J.) SUDHIR Page 12 of 12 HC-NIC Page 12 of 12 Created On Sun Jul 23 23:43:43 IST 2017