Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 1291 (GUJ)

Navinchandra M. Acharya v. Municipal Commissioner

2016-07-12

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. The present First Appeal is filed by the Appellant/Original Plaintiff being aggrieved with the impugned judgment and order rendered in Civil Suit No. 529 of 1994 by the City Civil and Sessions Court, Ahmedabad dated 11.12.2008, by which the Suit of the Appellant/Original Plaintiff was dismissed with costs. The facts of the case briefly stated are as follows. 2. The Appellant/Original Plaintiff was serving as a Medical Officer and was a permanent employee of the Ahmedabad Municipal Corporation. However, the Appellant/Original Plaintiff is said to have been indulged in private practice and was caught red-handed, which led to the charge sheet and the inquiry. After providing reasonable opportunity of being heard to the Appellant, the Inquiry Officer made a report, on the basis of which, his services were terminated and the punishment came to be imposed. Therefore, it has been challenged by the aforesaid Suit by the Appellant on various grounds inter alia the rules of natural justice and the Appellant/Original Plaintiff sought injunction as well as setting aside the same. The issues were framed, and, on the basis of the appreciation of material and evidence, and after considering the rival submissions, the impugned order came to be passed by the City Civil and Sessions Court, Ahmedabad, by which the Suit of the Appellant/Original Plaintiff was dismissed with costs and the order of removal passed by the competent authority - Municipal Commissioner was maintained. Therefore, the present Appeal has been preferred on the grounds set out in the Appeal. 3. It has been contended that the charge sheet is bad in law and against the violation of principle of natural justice. Similarly, it has been contended that the Inquiry Officer held him guilty with prejudiced mind, and the reasonable opportunity of being heard has not been provided, and therefore, the inquiry report is bad and illegal. The competence of the Inquiry Officer as well as the disciplinary authority has been challenged. 4. Similarly, Special Civil Application No. 1167 of 2008 came to be filed by the Ahmedabad Municipal Corporation, challenging the order passed by the controlling authority under the Payment of Gratuity Act, by which it had ordered payment of gratuity vide order dated 13.7.2006. The Ahmedabad Municipal Corporation preferred Gratuity Appeal No. 20 of 2006 before the appellate authority. 4. Similarly, Special Civil Application No. 1167 of 2008 came to be filed by the Ahmedabad Municipal Corporation, challenging the order passed by the controlling authority under the Payment of Gratuity Act, by which it had ordered payment of gratuity vide order dated 13.7.2006. The Ahmedabad Municipal Corporation preferred Gratuity Appeal No. 20 of 2006 before the appellate authority. However, the appellate authority also confirmed the order passed by the authority directing the Ahmedabad Municipal Corporation to make the payment of the gratuity vide order dated 25.7.2007. Therefore, the Ahmedabad Municipal Corporation preferred the aforesaid Special Civil Application No. 1167 of 2008 challenging both the orders on the grounds stated in the memo of Petition inter alia contending that Respondent No. 1 was dismissed from service w.e.f. 21.12.1993 and has served by interim order of the civil court, and therefore, would not be entitled to make any such claim. 5. Heard learned Advocate Shri Sunil K. Shah for the Appellant. 6. Learned Advocate Shri Shah submitted that the Appellant was a Doctor, who is said to have caught red-handed, and on the basis of that, an inquiry was initiated, and ultimately, on the basis of the inquiry report, he was dismissed from service. However, learned Advocate Shri Shah submitted that the court below, while dismissing the Suit of the Appellant/Original Plaintiff has failed to appreciate that as the wife had to go out of station all of a sudden, the Appellant/Original Plaintiff, as a Doctor, had only attended her clinic to avoid any inconvenience to the patients, and therefore, it could not be termed that he has been practicing. Learned Advocate Mr. Shah also submitted that the inquiry was conducted in a biased manner and in violation of the rules of natural justice, which has not been appreciated. Learned Advocate Shri Shah referred to the papers and submitted that assuming that there was some lapse and he was caught red-handed while attending the dispensary of the wife and treating the patients, even then the penalty of dismissal would be disproportionate. Learned Advocate Shri Shah referred to the papers and submitted that assuming that there was some lapse and he was caught red-handed while attending the dispensary of the wife and treating the patients, even then the penalty of dismissal would be disproportionate. Learned Advocate Shri Shah therefore submitted that he has been allowed to function pursuant to the order passed by the Civil Civil and Sessions Court in the two Suits filed by him being Civil Suit No. 4841 of 1993 of 1993 and Civil Suit No. 6478 of 1993 and he had retired on reaching the age of superannuation by virtue of the operation of the interim order of the court and therefore he was entitled to the payment of gratuity. 7. Learned Advocate Shri Shah submitted that the punishment for dismissal from service is very harsh, and therefore, he has alternatively submitted that, only on quantum of punishment the court may consider the lesser punishment, which may enable him to claim the retirement benefits like gratuity. 8. Learned Advocate Shri H.S. Munshaw for the Respondent-Ahmedabad Municipal Corporation, submitted that the inquiry report, which is produced along with the petition filed being Special Civil Application No. 1167 of 2008 by the Ahmedabad Municipal Corporation is self-explanatory, which deals with the report of the vigilance squad and it is clear that even the board clearly mentioned about the name of the wife with the present Appellant/Original Plaintiff and in fact he was regularly attending the said dispensary though he was serving with the Ahmedabad Municipal Corporation. It was submitted that he was paid the Non-Practicing Compensatory Allowance for the same. Learned Advocate Shri Munshaw has also submitted that as per the report made by the vigilance, it is not that only on one occasion he was treating the patients during office hours, and, had the wife left in the morning all of a sudden, it was her look out as a practicing Doctor to make necessary arrangements. Therefore, it would not justify that the Appellant as a Doctor of the Ahmedabad Municipal Corporation could attend the dispensary of the wife during office hours without any leave or intimation, which in turn would have effect of causing prejudice to the patients visiting in the hospital of the Ahmedabad Municipal Corporation. Therefore, in fact it would affect the public interest. Therefore, in fact it would affect the public interest. Learned Advocate Shri Munshaw submitted that he had continued by virtue of operation of the interim stay granted by the City Civil and Sessions Court, and therefore, he was working, and the salary and other allowances, including the retirement benefits were paid. Learned Advocate Shri Munshaw therefore submitted that virtually he has succeeded as other benefits are paid and therefore the direction given by the authority under the Payment of Gratuity Act has been challenged by the Ahmedabad Municipal Corporation by preferring Special Civil Application No. 1167 of 2008. Learned Advocate Shri Munshaw submitted that as he has been dismissed from service, he would not be entitled for payment of gratuity. 9. Learned Advocate Shri Rakesh B. Sharma appearing for Respondent No. 1 in Special Civil Application No. 1167 of 2008, [Appellant/Original Plaintiff in First Appeal No. 402 of 2009] has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2007) 1 SC 663 in case of Jawant Singh Gill v. Bharat Coking Coal Ltd. and Ors. He also referred to and relied upon the judgment reported in 2002 (1) GLR 108 in case of Ahmedabad Municipal Corporation v. Ellvina Samualbhai Christian. 10. In view of these rival submissions, it is required to be considered whether the present First Appeal as well as Special Civil Application No. 1167 of 2008 deserve consideration. FIRST APPEAL No. 402 OF 2009: 11. As it transpires from the discussions made herein above, when the Appellant/Original Plaintiff is found indulging in irregularity and caught red-handed while treating the patients at the dispensary of the wife during office hours, it can hardly be questioned that the order of termination/dismissal is erroneous. However the fact remains that the Appellant/Original Plaintiff had continued his services by virtue of operation of the stay order and thereafter he has retired. Be that as it may, the findings recording the reasons and the conclusion for dismissal of the Suit filed by the Appellant/Original Plaintiff, does not call for any interference. The submissions, which have been raised with regard to the competence of the Ahmedabad Municipal Corporation like the Inquiry Officer and the disciplinary authority has been discussed with reference to the provisions, including Section 53 of the Gujarat Provincial Municipal Corporations Act, 1949 (hereafter referred to as "the Act"). The submissions, which have been raised with regard to the competence of the Ahmedabad Municipal Corporation like the Inquiry Officer and the disciplinary authority has been discussed with reference to the provisions, including Section 53 of the Gujarat Provincial Municipal Corporations Act, 1949 (hereafter referred to as "the Act"). It has been observed that Section 53 of the Act empowers the Municipal Commissioner to appoint staff and accordingly, as a appointing authority he has the authority to pass appropriate orders including that of removal from service. The submissions which have been made with regard to the violation of rules of natural justice is also without any merits inasmuch as sufficient opportunity has been granted and in fact the Appellant/Original Plaintiff has been successful in abusing the judicial proceedings for his benefit inasmuch as the stay was granted, which remained operative and was beneficial to him. Therefore, the submission made by learned Advocate for the Appellant/Original Plaintiff that assuming that there was a lapse on part of the Appellant/Original Plaintiff, the punishment is too harsh and the quantum of punishment should be proportionate to the negligence or the lapse, is also devoid of any merits. It is required to be mentioned that the Appellant/Original Plaintiff was serving as a Doctor with the Ahmedabad Municipal Corporation and was required to attend the patients at the Municipal Hospital, and attending the patients in such general hospital would be in public interest, for which he has been employed. It is not in dispute that Non-Practicing Compensatory Allowance has been paid to the Appellant/Original Plaintiff. Further the Appellant had accepted the job with a clear understanding that he would not be allowed to practice while in service. However, as could be seen from the record, the wife was having a dispensary and the Appellant/Original Plaintiff was attending the same when the wife had to leave out of station, and only on one day, he had attended the patients at the private dispensary, is also not justified. As a medical practitioner, if the wife had left all of a sudden, then, it was for her to make arrangements for the patients, but it could not be at the cost of the public interest or the patients, who would be visiting hospital of the Corporation, where the Appellant/Original Plaintiff was required to attend as part of his duty. As a medical practitioner, if the wife had left all of a sudden, then, it was for her to make arrangements for the patients, but it could not be at the cost of the public interest or the patients, who would be visiting hospital of the Corporation, where the Appellant/Original Plaintiff was required to attend as part of his duty. Instead of attending to his job and the patients at the hospital of the Corporation, the Appellant/Original Plaintiff neglected and went to the private clinic of his wife to attend the private patients ignoring his duties. This cannot be viewed very lightly as the public interest is more relevant, which seems to have been overlooked. The report also suggest that it was a regular affair with him. It is further corroborated by the fact that even the board also had the name of the Appellant/Original Plaintiff suggesting that he was regularly attending the private clinic run in the name of his wife. Therefore, on the aspect of quantum of punishment, the submissions are without any substance and the submission that the order imposing punishment is harsh, is devoid of any merits. In fact, it would be said to be either leniency or abuse of the judicial process that he continued by virtue of the stay order of the court in such service which continued his earning also. Therefore, the order of punishment has not affected him and it is not so harsh. Therefore, there is no justification to interfere with the order. Moreover, it is well accepted by catena of judicial pronouncements that normally the High Court would not disturb the order of punishment imposed by the authority and substitute its own without any justification. If the inquiry has been held properly in compliance with the rules and the natural justice, the order of punishment may not be disturbed or substituted on the ground that it is disproportionate or harsh. A useful reference can be made to the observations made by the Hon'ble Apex Court in a judgment reported in (2004) 8 SCC 218 in case of Regional Manager, Rajasthan State Road Transport Corporation v. Sohan Lal. It has been observed: "It is not the normal jurisdiction of superior courts to interfere with the quantum of sentence unless the said sentence is wholly disproportionate to the misconduct proved." 12. It has been observed: "It is not the normal jurisdiction of superior courts to interfere with the quantum of sentence unless the said sentence is wholly disproportionate to the misconduct proved." 12. Therefore, this court is in complete agreement with the findings and conclusion arrived at by the court below while disposing of Civil Suit No. 529 of 1994. The present First Appeal No. 402 of 2009 therefore deserves to be dismissed and accordingly stands dismissed. SPECIAL CIVIL APPLICATION No. 1167 OF 2008: 13. Special Civil Application No. 1167 of 2008 filed by the Ahmedabad Municipal Corporation challenging the order passed by the authorities under the Payment of Gratuity Act as well as the appellate authority confirming the order of the authority under the Payment of Gratuity Act for the payment of the amount of gratuity deserve consideration. 14. The provisions of Payment of Gratuity Act provide for the payment of such gratuity on satisfactory completion of service. In light of the discussions made herein above and the findings as well as the report of the Inquiry Officer culminating into the order of removal, it can hardly be said that Respondent No. 1 in Special Civil Application No. 1167 of 2008 [Appellant/Original Plaintiff in First Appeal 402 of 2009] had satisfactorily completed the service, which would entitle him for the payment of gratuity. Therefore Special Civil Application No. 1167 of 2008 filed by the Petitioner - Ahmedabad Municipal Corporation deserve to be allowed and accordingly stands allowed. The impugned judgment and order passed by the authority under the Payment of Gratuity Act vide Gratuity Application No. 5 of 2006 dated 13.7.2016 at Annexure-D and the order passed by the appellate authority - Respondent No. 2 in Gratuity Appeal No. 20 of 2006 dated 25.7.2007 at Annexure-F deserve to be quashed and set aside and accordingly both the orders are hereby quashed and set aside.