Ramesh Kantilal Shah v. STATE — 1997 DIGILAW 178 (GUJ)

S. D. PANDIT, J. ( 1 ) RAMESH Kantilal Shah has filed the present petition to challenge the notification issued by the respondent on 31st January, 1996 by which petitioners appointment as a Public Prosecutor, Ahmedabad City has been cancelled. ( 2 ) THE petitioner was enrolled as an Advocate of the Bar Council of Gujarat at 25th march, 1964 and since then he was practising as an Advocate. He was appointed by the state Government as 3rd Assistant Public Prosecutor, Ahmedabad City on 27th August, 1970 and since then he was continued in that capacity of Additional Public Prosecutor till 14th February, 1986. On 15th February, 1986, he was appointed as a Public Prosecutor for Ahmedabad City and since then his appointment was renewed from time to time and the last order of this appointment was passed on 15th April, 1994 for a period of three years. He had carried out meritorious work and he represented the State Government in many important prosecutions and his work has been also appreciated by the various courts. He was also appointed as a Special Prosecutor in many more cases in the State not only by the State Government but also by the Central Government. But according to him, the politicians who were in the office of the State Government were trying to pressuries him and they insisted him to act in the manner in which they desired. But he was not yielding to their desire and was acting as a fair Public Prosecutor and that had dissatisfied the Government. Therefore, without holding any inquiry or giving any opportunity of being heard, all of a sudden on 31st January, 1996, his appointment as a Public Prosecutor was cancelled by issuing the following notification. "the Government of Gujarat, in exercise of its power, under Rule 5 (4) of the Law officers Conditions of Service Rules, 1965, hereby cancels with immediate effect the appointment of Shri R. K. Shah, Public Prosecutor, City Sessions Court, Ahmedabad. " ( 3 ) IT is the claim of the petitioner that the above notification is putting a stigma on him. It is causing harm to his reputation and as no due inquiry was held against him as well as no oppportunity of being heard was accorded to him. " ( 3 ) IT is the claim of the petitioner that the above notification is putting a stigma on him. It is causing harm to his reputation and as no due inquiry was held against him as well as no oppportunity of being heard was accorded to him. He has been removed from holding a public office and, therefore, he seeks issuance of writ of mandamus declaring the impugned notification as null and void and to declare that the petitioner continues to hold the office and to function as a Public Prosecutor of the City of Ahmedabad as if the impugned notification is non est. ( 4 ) THE respondent has filed his affidavit-in-reply. It is contended by the respondent that the respondent never wonted to put any stigma on the petitioner and never intended to disrepute him and the order in question of cancelling his appointment was passed purely in the public interest and in view of the incompatible relations between the petitioners and the respondent. Mr. Shelat, learned Additional Advocate General fairly submitted before me that the petitioner was a competent Public Prosecutor and the Government never doubted either his competency or his integrity. But in view of the strained relations which had arisen, it is not possible for the Government and the petitioner to continue to work in harmony and merely because of that his services are terminated. In the affidavit-in-reply, the respondent has quoted instances in which he had not acted as per the directions of the state Government as a Public Prosecutor in certain cases in Sessions Courts in other districts and that had resulted in unfavourable decisions and the learned Addl. Advocate general submitted that these are the instances which have created incompatible relations between the petitioner and the respondent. Thus, he contended that the order issued by the respondent is just and proper. It is also ultimately submitted by him that under Sub-clause 6 of Rule 5 of the Gujarat Law Officers (Appointment and Conditions of Service) Rules, 1965, it was open for the respondent to terminate the appointment of the petitioner by giving three months notice. It is also submitted that on 30th September, 1996 the petitioner was to attend the age of superannuation by completing 60 years and he, therefore, could not have continued, in any case, beyond that date. It is also submitted that on 30th September, 1996 the petitioner was to attend the age of superannuation by completing 60 years and he, therefore, could not have continued, in any case, beyond that date. Therefore, there is no question of giving a declaration that he is continued in the said office even till today. ( 5 ) THE claim of the petitioner that the petitioner is holding a public office though he could not be treated as a public servant is not at all disputed before me. In the case of shrilekha Vidyarthi vs. State of U. P. , 1991 (1) SCC 212 , the Apex Court has negatived the contention raised in that case by the Addl. Advocate General that appointment of district Government Counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it. By making the following observation in para 17 at page 235:"we are, therefore, unable to accept the argument of the learned Additional advocate General that the appointment of District Government Counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the Government excluding judicial review. We have already indicated the presence of public element attached to the office or post of District government Counsel of every category covered by the impugned circular. This is sufficient to attract Art. 14 of the Constitution and bring the question of validity of the impugned circular within the scope of judicial review. "5a. Then in the earlier para 13, the Apex Court had made the following observations: "this, however, does not necessarily mean that a person who is not a government servant holding a post under the government does not hold any public office and the engagement is purely private with no public element attaching to it. This part of Clause (3) of para 7. 06 means only this and no more. The other part of Clause (3) which enables the Government to terminate the appointment at any time without assigning any cause can also not be considered in the manner suggested by the learned Additional Advocate general. This part of Clause (3) of para 7. 06 means only this and no more. The other part of Clause (3) which enables the Government to terminate the appointment at any time without assigning any cause can also not be considered in the manner suggested by the learned Additional Advocate general. The expression at any time merely means that the termination may be made even during the subsistence of the term of appointment and without assigning any case means without communicating any case to the appointee whose appointment is terminated. However, without assigning any case is not to be equated with without existence of any cause. It merely means that the reason for which the termination is made need not to be assigned or communicated to the appointee. It was held in Liberty Oil Mills vs. Union of india that the expression without assigning any reason implies that the decision has to be communicated, but reasons for the decision have not to be stated; but the reasons must exist, otherwise, the decision would be arbitrary. The non-assigning of reasons or the non-communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy. Clause (3) of para 7. 06 must, therefore, be understood to mean that the appointment of a District government Counsel is not to be equated with appointment to a post under the government in the strict sense, which does not necessarily mean that it results in denuding the office of its public character; and that the appointment may be terminated even during currency of the term by only communicating the decision of termination without communicating the reasons which led to the termination. It does not mean that the appointment is at the sweet will of the government which can be terminated at any time, even without the existence of any cogent reason during the subsistance of the term. " [the provisions of the Legal Remembrancers Manual of U. P. are similar to the provisions of Gujarat Law Officers Conditions of Service Rules. ]5aa. " [the provisions of the Legal Remembrancers Manual of U. P. are similar to the provisions of Gujarat Law Officers Conditions of Service Rules. ]5aa. The above quoted notification quoted in para No. 2 of this judgment issued by the respondent-Government clearly mentions that the appointment of the present petitioner as a Public Prosecutor has been cancelled under the provisions of Rule 5 (4) of the Gujarat Law Officers (Appointment and Conditions of Service) Rules, 1965. The said rule 5 (4) runs as under : " (4) A law officer shall be liable to be removed from his office at any time, if he is guilty of any act or conduct which, in the opinion of the State government, is incompatible with his duties as such law officer. The decision of the State Government in such cases shall be final. "5b. If the above provisions of Rule 5 (4) are taken into consideration, then it would be quite clear that the order in question if read by a common man then it will lead him to believe that the present petitioner was found guilty of any act or conduct which, in the opinion of the State Government, in incompatible with his duties as such law officer. Therefore, when that would be the reading or understanding of the order in question, the passing of the order of cancelling the appointment of the present petitioner without giving him any opportunity to explain about his conduct and giving any opportunity of being heard would definitely be against the principles of natural justice. Learned Additional advocate General submitted before me that the order in question would not amount to putting up any stigma on the present petitioner and in support of the submission made by him, he cited before me the case of Allahabad Bank Officers Association vs. Allahabad bank, AIR 1996 SC 2030 and put reliance on the following head-note. "mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot be inferred. "mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot be inferred. So also, if the statement in the order refers only to the assessment of employees work and does not at the same time cast an aspersion on the conduct or character of the Government servant, then it will not be proper to hold that the order compulsory retirement is in reality an order of punishment. Whether the statement in the order is stigmatic or not will have to be judged by adopting the test of how a reasonable person would read or understand it. "5c. The above conclusion is arrived at by the Apex Court after referring to the various earlier decisions of the Apex Court right from the year 1961. In that case of AIR 1996 SC 2030 , the Chairman and Managing Director of the bank was the competent authority to pass an order of compulsory retirement and he has passed the following order: "i agree, particularly, on the view expressed regarding his want of application to Banks work and lack of potential, he has also been found not dependable. Hence retire him immediately as recommended. "5d. That order of the Chairman and Managing Director has been upheld as not amounting to causing of sigma on the officer as well as not amounting to an order of punishment. The order of the Chairman and Managing Director was quoting the entries in the Confidential Reports of the bank employee while passing the order of compulsory retirement and, therefore, in the circumstances, the quoting of those entries in the confidential. Reports in his order has been treated as not amounting to stigma. The order of the Chairman and Managing Director was quoting the entries in the Confidential Reports of the bank employee while passing the order of compulsory retirement and, therefore, in the circumstances, the quoting of those entries in the confidential. Reports in his order has been treated as not amounting to stigma. But, in the instant case before me, the order in question is only mentioning that his services have treated under Rule 5 (4) of the Gujarat Law Officers (Appointment and Conditions of service) Rules, 1965 and without stating any further or without mentioning any circumstances in which the said order is being passed and, therefore, the reading of the said order gives a ground to hold that his services have been terminated on finding that he was guilty of any act or conduct, which in the opinion of the State Government, in incompatible with his duties as such law officer. Therefore, when that is the position, it was necessary to give an opportunity of being heard to the present petitioner before passing an order of cancelling his appointment and as that was not done, the order in question would be against the principles of natural justice and consequently, the same deserves to be quashed and set aside. ( 6 ) BUT the question is as to whether the petitioner is entitled to get further declaration as on today that he continues to hold an office of the Public Prosecutor. Admittedly, the petitioner before me has completed the age of 60 years in the month of September 1996. and as per the rules of the State of Gujarat, he was to retire on 30th September, 1996. The provisions of Rule 5 (2) of the Gujrat Law Officers (Appointment and conditions of service) Rule, 1965 clearly mentions that no advocate shall be appointed as Law Officer after he had attained the age of 60 years and no persons who has been appointed law officer shall be continued in office after he had attained the age of 60 years. Therefore, in the circumstances, the petitioner would at the most be entitled to a declaration that he continued to hold that said office of Public Prosecutor till the date of 30th September, 1996. ( 7 ) THEN there is a further question as to whether the petitioner will be entitled to get any remuneration and, if yes, what remuneration. Therefore, in the circumstances, the petitioner would at the most be entitled to a declaration that he continued to hold that said office of Public Prosecutor till the date of 30th September, 1996. ( 7 ) THEN there is a further question as to whether the petitioner will be entitled to get any remuneration and, if yes, what remuneration. At the cost of repetition, it must be stated that admittedly prior to the order in question there was exchange of correspondent between the petitioner and the office of the Law Secretary. The petitioner himself has also stated in his petition that pressure was being brought against him by the politicians who were in power in the Government to act on behalf of the Government in a particular manner and that he was not acting accordingly. But he was acting as a fair Public prosecutor in the public interest and that has earned displeasure for him. Mr. shelat, learned Additional Advocate General submitted before me that from the averments made in the petition as well as from the averments made by the respondent in the affidavit-in-reply, it would be quite clear that the relations between the petitioner and the state Government had become incompatible and because of the said incompatible relations, the order in question happened to be passed. The definition of the word "incompatible" as given in Oxford Dictionary is as under: "opposed in character, unable to live, work, together in harmony. "7a. It seems that the State Government had lost faith and confidence in the petitioner. The State Government had lost trust in the petitioner. That has resulted in passing order in question. Now, when that was the position of the petitioner and the respondent and though the respondent was not entitled to terminate his services without following the principles of natural justice, it was quite competent for the respondent to withdraw the work from him. Merely because he happened to hold the office of a Public prosecutor, it cannot be said that there was compulsion to assign the work to him for everyday. Therefore, the power of Government not to assign work to him cannot be disputed. A public Prosecutor or a Government Pleader cannot insist that merely because he was holding the office of the Government Pleader or the Public Prosecutor, the government must assign him the work everyday. Therefore, the power of Government not to assign work to him cannot be disputed. A public Prosecutor or a Government Pleader cannot insist that merely because he was holding the office of the Government Pleader or the Public Prosecutor, the government must assign him the work everyday. The power of the Government to withdraw the work from the Public Prosecutor and assigning it to another Addl. Public prosecutor or Public Prosecutor has been upheld by the Apex Court in the case of mudrika Prasad Singh vs. State of Bihar, 1979 (4) SCC 701 . In that case the petitioner was appointed as a Government Pleader for Patna District and he was to represent the government in all the civil cases. During the currency of his term as a Government pleader, there was also appointment of Assistant Government Pleaders and one day the government had passed an order directing him that a bunch of land acquisition cases should be made available to one of the new nominees and the petitioner had challenged the said action of the Government and that challenge by him in the said case was rejected by the Apex Court. 7aa. But when he continues to hold an office of a Public Prosecutor, he would be entitled to draw the remuneration which he is entitled by way of retainer as per terms of his appointment order. As has been held by me that merely because he happened to continue to hold the office of a Public Prosecutor in view of the incompatible relations between the petitioner and the respondent, it was open for the Government to withdraw the work from him. Merely because he was holding the office of the Public Prosecutor, it cannot be said that on everyday he would have assigned the work to him and he would have conducted the same. Therefore, in the circumstances, I hold that during this period, i. e. , from January, 1996 till September, 1996 he will be entitled to get the actual amount or remuneration which is payable to him as a retainer as per the terms of appointment and as no actual work was carried by him and as it was open for the Government to withdraw the work from him, he will not be entitled to get any other remuneration. ( 8 ) THUS, I hold that the notification issued by the respondent on 31st January, 1996 cancelling the appointment of the present petitioner as a Public Prosecutor of ahmedabad City is hereby quashed and set aside and it is declared that he continued to hold the office of a Public Prosecutor from January 1996 till September 1996 and he would be entitled to get the remuneration as a retainer for the said period. Thus, the petitioner stands partially allowed accordingly. Rule is made absolute accordingly and in the circumstances, I direct the parties to bear the respective costs. .