Gujarat High Court
Vipulbhai Mansingbhai Chaudhry vs State Of Gujarat & on 28 January, 2016
Bench: Jayant Patel, Vipul M. Pancholi
C/LPA/55/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 55 of 2016
In SPECIAL CIVIL APPLICATION NO. 177 of 2016
With
CIVIL APPLICATION NO. 731 of 2016
In
LETTERS PATENT APPEAL NO. 55 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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VIPULBHAI MANSINGBHAI CHAUDHRY....Appellant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR SN SHELAT WITH MR PS CHAMPANERI, ADVOCATE for the
Appellant(s) No. 1
MR PRAKASH JANI, AAG WITH MS.MANISHA SHAH, GP AND MR.DAVE,
AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 28/01/2016
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL)
1. The present appeal is directed against the order dated 18.1.2016 passed by learned Single Judge of this Court in Special Civil Application No.177 of 2016 whereby the learned Single Judge has partly allowed the petition and the impugned order before him is quashed only to the extent of disqualification of the period of disqualification beyond three years.
2. We have heard Mr.Shelat with Mr.Champaneri, learned counsel appearing for the appellant and Mr.Prakash Jani, learned Additional Advocate General appearing with learned Government Pleader Ms.Shah as well as Mr.Dave, learned Additional Government Pleader for the respondents for final disposal of the appeal.
3. The facts of the present case can broadly be summarized as under:
3.1. On 12.1.2015, first show cause notice came to be issued by the competent authority under Gujarat Cooperative Societies Act Page 2 of 19 HC-NIC Page 2 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT (hereinafter referred to as `the Act') in purported exercise of the power under Section 76B(1) and (2) of the Act whereby the appellant was so called upon to show cause as to why he should not be removed from the post of Chairman of Mehsana District Cooperative Milk Producers Union Limited (hereinafter referred to as `the Society') and why he should not be further disqualified for holding the post in any other Cooperative Society. On 10.3.2015, the order came to be passed by the competent authority i.e. Registrar, Cooperative Societies for removal of the appellant and for further disqualification for a period of three years. Special Civil Application No.9618 of 2015 was preferred by the appellant challenging the aforesaid decision dated 10.3.2015 and the learned Single Judge of this Court vide its judgment and order dated 29.9.2015 found that no interference was called for to the order for removal under Section 76B(1) of the Act. However, so far as the disqualification under Section 76B(2) of the Act is concerned, learned Single Judge found that the show cause notice was not given nor any opportunity was given in this regard and therefore he quashed the order for disqualification under Section 76B(2) of the Act.
The matter was carried in appeal being Letters Patent Appeal No.1302 of 2015 and the Division Page 3 of 19 HC-NIC Page 3 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT Bench of this Court vide order dated 19.10.2015 did not interfere with the order passed by the learned Single Judge in Special Civil Application No.9618 of 2015.
3.2 It appears that thereafter second show cause notice was issued on 3.10.2015 by Registrar, Cooperative Societies in purported exercise of powers under Section 76B(2) of the Act for disqualification for a period of six years. The said show cause notice was challenged before the learned Single Judge by the appellant in Special Civil Application No.17826 of 2015 and the learned Single Judge vide judgment and order dated 27.10.2015 found no case for interference and the petition was rejected. The matter was carried in Letters Patent Appeal being Letters Patent Appeal No.1343 of 2015 by the appellant before the Division Bench of this Court against the aforesaid order dated 27.10.2015 passed by the learned Single Judge. The Division Bench of this Court vide judgment and order dated 2.12.2015 found that as per Section 76B(1) and (2) of the Act, there has to be conjoint notice for removal and also for disqualification and separate notice under Section 76B(2) of the Act after the action was taken under Section 76B(1) of the Act is not provided under the statute and, therefore, the Division Bench of this Court found Page 4 of 19 HC-NIC Page 4 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT that the second separate show cause notice under Section 76B(2) of the Act is ultra vires to the power and quashed the said show cause notice under Section 76B(2) of the Act for disqualification. The matter was further carried before the Apex Court by the State in the proceedings being SLP (Civil) No.32004 of 2015 and the Apex Court vide order dated 23.11.2015 granted leave to prefer the appeal and also granted ad-interim relief whereby the judgment and order of the Division Bench in Letters Patent Appeal No.1343 of 2015 was stayed and it further permitted the competent authority to proceed with the show cause notice already issued under Section 76B(2) of the Act. It appears that thereafter reply was filed to the show cause notice by the appellant. It may be recorded that in the meantime, the appellant herein has also preferred SLP(Civil) No.33630 of 2015 against the order passed by the Division Bench of this Court dated 19.10.2015 in Letters Patent Appeal No.1302 of 2015 and the Apex Court vide order dated 7.12.2015 granted leave and further observed below the interim application that as the reply to the show cause notice is already filed, the Apex Court observed that if any order adverse to the respondent-appellant herein is passed by the Registrar, Cooperative Societies, the same shall not be implemented for a period of four weeks Page 5 of 19 HC-NIC Page 5 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT from the date of communication of the order to the respondent-appellant herein.
3.3 The aforesaid shows that SLP against the order passed by the Division Bench dated 19.10.2015 in Letters Patent Appeal No.1302 of 2015 whereby the order of the learned Single Judge for maintaining the removal but for setting aside the order of disqualification was not interfered with as well as the SLP against the order dated 2.11.2015 passed by the Division Bench of this Court whereby the second show cause notice for disqualification was found to be beyond the scope of the provisions of Section 76B of the Act were and are pending before the Apex Court for further hearing since it has been also observed by the Apex Court in the order dated 7.12.2015 that the hearing be expedited. However, after the order dated 7.12.2015 and before the aforesaid SLPs are finally heard by the Apex Court, the order dated 16.12.2015 has been passed by the Registrar, Cooperative Societies which is the subject matter in the present appeal whereby the appellant has been disqualified for a period of six years under Section 76B(2) of the Act. The appellant challenged the legality and validity of the order dated 16.12.2015 passed by the Registrar, Cooperative Societies under Section 76B(2) of the Act before this Court by preferring Page 6 of 19 HC-NIC Page 6 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT Special Civil Application No.177 of 2016. Learned Single Judge vide order dated 18.1.2016 found that even if the provisions of Section 76B(2) of the Act was amended for enhancement of the period from four years to six years, the proceedings could not be said to be without jurisdiction since earlier the period of disqualification was already for four years. However, on the question of proportionality of the punishment, learned Single Judge found that earlier on the same facts when the order dated 10.3.2015 was passed, the authority had found three years period as sufficient for disqualification and, therefore, the period of six years provided for disqualification would be said to be shockingly disproportionate and arbitrary and therefore the learned Single Judge maintained the order for disqualification for a period of three years and quashed the order for the period exceeding three years. Under the circumstances, the present appeal before this Court.
4. Learned counsel appearing for the appellant mainly raised two contentions for assailing the order of the learned Single Judge one was that when Section 76B(2) of the Act was already amended but at the later date on 10.4.2015 and when the question of removal is prior thereof i.e. 10.3.2015, the appellant-
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petitioner could not be subjected to the amended provisions of Section 76B(2) of the Act for disqualification of six years. In the present case, the show cause notice has been issued as if the amended provisions of six years disqualification apply. In his submission, in penal statute, retrospectivity is not considered nor it can be considered as retroactive. The statute, as it is, would be prospective. In his submission, the notice for disqualification could not have been issued on the basis of amended provisions of Section 76B(2). Resultantly, the proceedings are vitiated and the learned Single Judge could not maintain the same.
5. Whereas on behalf of the State and its authorities, learned Additional Advocate General submitted that the aspects of applicability of amended provisions of Section 76B(2) of the Act is only an academic exercise since even under the earlier provisions of Section 76B(2) of the Act, the period of four years was provided by way of disqualification. He further submitted that the learned Single Judge in the ultimate decision has maintained the disqualification for three years. As per the learned Additional Advocate General, the State has accepted the decision of the learned Single Judge nor is desirous to prefer cross-appeal against the order of the learned Page 8 of 19 HC-NIC Page 8 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT Single Judge for maintaining the disqualification of the appellant for a period of three years. It was submitted that when the period of three years is in any case less than period of four years, even if the contention is considered for the sake of examination, no prejudice could be said to have been suffered by the appellant and, therefore, the contention could be said as only on academic premise without there being any substantive effect on the disqualification.
6. In our view, even if it is considered for the sake of examination that the penal provision of the statute will have prospective effect then also, while exercising power under Section 226 of the Constitution, this Court would keep in mind the real substance of justice and not the mere procedural aspects. Had there been no provision for disqualification for a period of four years under Section 76B(2) of the Act prevailing then and the provision is inserted for the first time by amendment under Section 76B(2) of the Act for disqualification, may be for six years, it might stand on different footing and different consideration. When it is an admitted position that even if the relevant date is considered as of 10.3.2015, the provision was there on the statute book for providing disqualification of four years and when the issue Page 9 of 19 HC-NIC Page 9 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT is to be considered for a span for the length of period of disqualification, which in any case, as per the ultimate decision taken by the learned Single Judge has not gone beyond the outer limit of four years, it cannot be said that everything would fall to ground for the purpose of proceedings under Section 76B(2) of the Act as sought to be canvassed.
7. At this stage, we may find it proper to record that as per the earlier decision taken by the Division Bench of this Court dated 2.11.2015 in Letters Patent Appeal No.1343 of 2015, the second separate show cause notice under Section 76B(2) of the Act is found as not contemplated under the Act but the matter is still pending before the Apex Court in the proceedings of SLP(C) No.32004 of 2015 and the said view is stayed and the proceedings of show cause notice were allowed to continue and if ultimately found by the Apex Court, the second separate show cause notice under Section 76B(2) of the Act after order under Section 76B(1) of the Act is permissible, then only the contention that said show cause notice could not have been issued under the amended provisions of the Act under Section 76B(2) of the Act would be inconsequential. However, if in the aforesaid SLP No.32004 of 2015, the Apex Court finds that the Page 10 of 19 HC-NIC Page 10 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT second separate show cause notice under Section 76B(2) of the Act is not conceived or not provided as per the scheme of the Act, then the second show cause notice dated 3.10.2015 and the impugned order dated 16.12.2015 passed thereon would automatically go. Since in any case, the matter is pending before the Apex Court, no further observations deserve to be made. However, excluding the said aspect, the examination of the contention of the learned counsel for the appellant, in our view, would not detain much when in the ultimate decision of the learned Single Judge, the disqualification is maintained for a period of three years which in any case, is lesser than period of four years provided by the statute prevailing then on 10.3.2015 when the removal was ordered.
8. Mr.Shelat, learned counsel appearing for the appellant did rely upon the decision of the Apex Court in the case of The Government of Andhra Pradesh and Ors.V/s Ch.Gandhi reported in AIR 2013 SC 2113 for contending that the law is presumed to be prospective when it is pertaining to any penal statute.
9. In our view, even if the principle is considered so far as the present case is concerned, it would not make much difference Page 11 of 19 HC-NIC Page 11 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT since in substance and in ultimate effect, the period of disqualification does not exceed the maximum period of four years which was provided by the statute prevailing then and hence the said decision is of no help to the learned counsel.
10. The next contention raised by the learned counsel for the appellant was that the learned Single Judge of his own could not decide the proportionality of punishment by substituting the disqualification of three years when the authority had found that appropriate punishment was six years. It was submitted that this Court, while exercising power under Section 226 of the Constitution, if finds that the aspects of proportionality of punishment is not properly considered and the punishment so imposed is shockingly disproportionate, the available course would be to quash the punishment and to remand the matter for reconsideration of the punishment. Instead of that, the learned Single Judge has exercised the power of his own as if all the first authority which as per the learned counsel for the appellant was impermissible and, therefore, this Court may consider in the present appeal.
11. Whereas Mr.Jani, learned Additional Advocate General appearing for the state Page 12 of 19 HC-NIC Page 12 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT submitted that it is not in every case, the Court would set aside the punishment and remand for reconsideration of the punishment under Article 226 of the Constitution of India. The power is available to the Court to do substantial justice. In support of his contention, he relied upon the observations of the Apex Court in the case of B.C.Chaturvedi V/s Union of India reported at AIR 1996 SC 484 and more particularly the observations made at paragraphs 18, 22 and 23 of the said decision. He, therefore, submitted that the learned Single Judge having found the peculiar circumstances that when three years disqualification was already ordered on the same facts earlier by the authority, the power has been exercised by the learned Single Judge for substitution of the punishment. In his submission, such an exercise of the power could not be said to be beyond jurisdiction or competence of this Court under Article 226 of the Constitution of India and hence this Court may not interfere with the said part of the decision of the learned Single Judge.
12. The scope and ambit of the jurisdiction of this Court under Letters Patent is by now well settled. If two views are possible and the discretion has been judicially exercised by the learned Single Judge, the Division Bench of this Page 13 of 19 HC-NIC Page 13 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT Court in Letters Patent jurisdiction would be loath to interfere or may not interfere unless the Court finds that there is perversity in exercise of the jurisdiction or the resultant effect of exercise of the jurisdiction is miscarriage of justice. In our view, if the aforesaid parameters for exercise of jurisdiction under Letters Patent are considered and then the impugned order of the learned Single Judge is considered so far as substitution of the disqualification of three years, it cannot be said as perverse exercise of the power. Had it been a case where the order of disqualification maintained for a period of exceeding four years, there would have been substance in the contention but when on the date when the order of removal was passed on 10.3.2015 and the statute provided then prescribed for maximum period of four years as disqualification and the learned Single Judge considered as of three years, it could not be said that the exercise of jurisdiction was perverse nor could be said to be resulting into miscarriage of justice.
13. At this stage, we may usefully refer to the decision of the Apex Court in case of B.C.Chaturvedi (supra) and more particularly the observations made at paragraph 18, 22 and 23 which reads as under:
Page 14 of 19HC-NIC Page 14 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power in undoubtedly has, in view of long lines of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.
23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice Page 15 of 19 HC-NIC Page 15 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT between the parties, the same cannot be ordered. Absence of provisions like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh's case, AIR 1963 SC 1909, that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like of High Court. Of course, this power is not as wide which this Court has under Article 142. That, however, is a different matter."
14. The last contention raised by the learned counsel for the appellant that after the order of disqualification under Section 76B(2) of the Act vide order dated 10.3.2015, the same was set aside only on 29.9.2015 by the learned Single Judge in Special Civil Application No.9618 of 2015 and, therefore, the period of about six months was already suffered as disqualification by the appellant but the said aspect is neither considered by the first authority i.e. Registrar, Cooperative Society nor by the learned Single Judge and, therefore, the order would be vulnerable.
15. Whereas Mr.Jani learned AAG appearing for the State and its authorities submitted that when the ultimate decision of the learned Single Page 16 of 19 HC-NIC Page 16 of 19 Created On Wed Feb 03 00:38:55 IST 2016 C/LPA/55/2016 JUDGMENT Judge is for maintaining the disqualification of three years and the State has accepted the said decision of the learned Single Judge, it would not be open to the State to contend that in addition to the said period of about six months, there will be further disqualification of three years and he submitted that the set off of whatever period as was available between 10.3.2015 to 29.9.2015 if made admissible to the appellant, the State would not object.
16. We would have further considered the matter, however, it appears to us that when the declaration is already made on behalf of the State by the learned AAG, only clarification needs to be made is that the period of three years as maintained by the learned Single Judge for disqualification would include the period from 10.3.2015 to 29.9.2015 and, therefore, in effect for the remainder of the period, the disqualification may follow as per the order of the learned Single Judge.
17. In view of the aforesaid observations and discussion, we find that no further case is made out for interference to the view taken by the learned Single Judge in the impugned order. Hence, the appeal is disposed off accordingly with no order as to cost.
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18. After pronouncement of the order,
Mr.Shelat learned counsel appearing for the
appellant prayed that the interim protection
granted earlier be continued by suspending the operation of the judgment for some time so as to enable his client to approach before the higher forum.
19. Mr.Jani, learned AAG objected to such request contending inter alia that when the disqualification is not interfered with and as there is huge operation of the society, the interim protection may not be continued.
20. Considering the facts and circumstances and more particularly the factum of pendency of above referred two SLPs Nos.32004 of 2015 and 22630 of 2015 before the Apex Court wherein the question of scope and ambit of Section 76B(2) of the Act which provides for a separate show cause notice or not is yet to be finalized by the Apex Court and further considering the facts and circumstances that the interim protection operated pending the matter before the learned Single Judge and also in the present appeal, we find it proper to extend the interim protection for a period upto 15.2.2016. Hence, order accordingly.
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