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2016 DIGILAW 419 (GUJ)

Lata H. Machchhar v. State of Gujarat

2016-02-22

V.M.PANCHOLI

body2016
JUDGMENT : V.M. Pancholi, J. 1. By way of this petition, the petitioner has prayed that the communication dated 29.4.2002 and 14.6.2001 in incorporating adverse remarks in the service record of the petitioner in the year 2001-02 be quashed and set aside and further direct the respondents to expunge the adverse remarks in the service record of the petitioner as reflected in the aforesaid communication. The petitioner has also prayed that the order dated 5.7.2003 issued by the Director of Employment and Training be quashed and set aside and the respondents be directed to give deemed date promotion to the petitioner from the date on which her immediate junior was promoted. 2. Heard/learned advocate Ms. Harshal Pandya for the petitioner and learned AGP Mr. Swapneshwar Gautam for the respondents. 3. It is the case of the petitioner that she joined services as Junior Employment Officer (Computer) under office order dated 7.7.1992. Thereafter, she was confirmed as permanent employee on 31.10.1999. The petitioner has discharged her duties efficiently and sincerely and has put in hard work. Director of Employment and Training himself has therefore given the certificate dated 21.4.2003 to the petitioner accepting the efficiency and sincerity of the petitioner. Surprisingly the petitioner received a show cause notice dated 16-1/2-2/2002 wherein it has been alleged that on 12.1.2002 which was a public holiday, the petitioner remained unauthorizedly absent even though she was informed to remain present at Gandhinagar office for the purpose of server repairing. It was thus alleged that such unauthorized absence of the petitioner was indicative of insubordination and lack of commitment towards her duty. The petitioner submitted her reply to the said show cause notice. The respondent No. 3-authority, without properly considering the reply given by the petitioner, informed her by communication dated 29.4.2002 that it was decided to incorporate adverse remarks in the Confidential Record of the year 2001-2002 in respect of her dereliction of duty. The petitioner made representation against the said decision, however, the Director of Employment and Training, by communication dated 28.5.2002, stated that the decision dated 29.4.2002 was maintained. 4. It is further the case of the petitioner that by an order dated 5.7.2003, junior to the petitioner namely Shri J.D. Jetwa was placed in the cadre of Office Superintendent, Class III in the scale of Rs. 4. It is further the case of the petitioner that by an order dated 5.7.2003, junior to the petitioner namely Shri J.D. Jetwa was placed in the cadre of Office Superintendent, Class III in the scale of Rs. 5500-9000/- and because of the aforesaid adverse remarks, the case of the petitioner was not considered and therefore the present petition is filed. 5. Learned advocate for the petitioner mainly contended that the petitioner was never informed in writing on previous day that she has to remain present on 12.1.2002 i.e. on holiday. The respondents have not produced any material on record pointing out that written instruction was given to the petitioner to remain present on holiday in the office. Learned advocate has referred to Government Resolution dated 24.2.1984 issued by the State Government wherein standing instructions are given with regard to working hours in the government office. As per the said standing instructions, it is clarified that there shall be full holiday on second and fourth Saturday of each month and the offices should avoid detaining staff in the office till late hours or call them to attend office on holidays and in case of emergency, staff/employee can be called for work after taking written order of the head of the office or any responsible officer. Even female employees should not be detained beyond office hours. 12.1.2002 was a holiday and no written previous communication was given on previous day i.e. 11.1.2002 to the petitioner to remain present on 12.1.2002. The petitioner was not aware that she has to attend the office on holiday for a particular work. However, when the petitioner came to know that her presence is required in the office, she immediately rushed from Ahmedabad to Gandhinagar and it is admitted by the respondents in the affidavit that petitioner reached at 5.00 clock in the evening. However, at that time, the technician left the office and therefore the work remained incomplete. Learned advocate, therefore, submitted that in absence of written instructions given to the petitioner and even in absence of oral instructions, when the petitioner has not remained present on the holiday in the office, it cannot be said that the petitioner has remained negligent as alleged. The aforesaid aspects were clarified by giving reply and representation. Learned advocate, therefore, submitted that in absence of written instructions given to the petitioner and even in absence of oral instructions, when the petitioner has not remained present on the holiday in the office, it cannot be said that the petitioner has remained negligent as alleged. The aforesaid aspects were clarified by giving reply and representation. However, the respondents have not properly considered the same and the aforesaid incident was treated as negligence on the part of the petitioner and same was considered as adverse remarks in her Confidential Record. 6. At this stage, learned advocate for the petitioner further submitted that Director of Employment and Training himself has issued certificate on 21.4.2003 to the petitioner wherein he has specifically stated that the petitioner is found very enthusiastic, sincere, efficient and hard working. That the said certificate is produced at Annexure 'A' with the compilation. Thus, it is contended that except incident of 12.1.2002, during the entire career of the petitioner, no other adverse remarks was made in the Confidential Record of the petitioner and therefore the only adverse remarks which is challenged before this Court is unreasonable and without application of mind. Learned advocate for the petitioner further submitted that by order dated 15.2.2006, the respondent No. 2 passed an order granting higher pay in the scale of Rs. 5500-9000/- applicable to the category of Office Superintendent to the petitioner. Thus, in view of the subsequent development, the order which is impugned in the present petition has been treated as non-est and, therefore, now the right of the petitioner to be promoted to the post of Employment Officer automatically stands crystalized. Therefore, this Court may quash and set aside the impugned order and thereby direct the respondents to grant deemed date of promotion to the petitioner from the date on which her junior Shri Jetwa was placed in the cadre of Office Superintendent as reflected in the order dated 5.7.2003. 7. On the other hand, learned AGP mainly contended that it was orally informed to the petitioner on 11.1.2002 that she has to remain present on 12.1.2002 in the office though it was a public holiday. The petitioner had not remained present till 5.00 p.m. The concerned experts, therefore, left the office and the work which was required to be carried out during public holiday remained incomplete. The petitioner had not remained present till 5.00 p.m. The concerned experts, therefore, left the office and the work which was required to be carried out during public holiday remained incomplete. Thus, the petitioner remained negligent and therefore show cause notice was issued to the petitioner and after considering the reply, it was decided that the petitioner has remained negligent and therefore the same was treated as adverse remarks in the Confidential Record of the petitioner. When the Departmental Promotion Committee met, the said fact was considered and the petitioner was not found fit to be promoted on higher post. Her junior Mr. Jetwa was found fit and therefore he was promoted. Thus, no illegality is committed by the respondents. 8. Learned AGP further submitted that scope of judicial review in a matter of adverse remarks is limited only to the deficiency in the decision making process. The Court does not have the right to sit over either assessment made by the Initiating Officer or the Accepting Officer regarding the performance of the petitioner. Learned AGP, therefore, requested that this petition be dismissed. In support of the aforesaid contentions, learned AGP has placed reliance upon the decisions rendered by the Hon'ble Supreme Court in the case of Colonel Narendar Singh V/s. Union of India and Ors. in the case of Writ Petition (Civil) No. 7196 of 2005 and Civil Appeal No. 392 of 2008 in case of Vinod Kumar V/s. State of Haryana and others, more particularly on paragraph 18 which reads as under: "18. The matter can be looked into from another angle as well. In those cases where Courts are concerned with the judicial review of the administrative action, the parameters within which administrative action can be reviewed by the courts are well settled. No doubt, the scope of judicial review is limited and the courts do not go into the merits of the decision taken by the administrative authorities but are concerned with the decision making process. Interference with the order of the administrative authority is permissible when it is found to be irrational, unreasonable or there is procedural impropriety. However, where reasonable conduct is expected, the criterion of reasonableness is not subjective but objective; albeit the onus of establishment of unreasonableness rests upon the person challenging the validity of the acts. Interference with the order of the administrative authority is permissible when it is found to be irrational, unreasonable or there is procedural impropriety. However, where reasonable conduct is expected, the criterion of reasonableness is not subjective but objective; albeit the onus of establishment of unreasonableness rests upon the person challenging the validity of the acts. It is also trite that while exercising limited power of judicial review on the grounds mentioned above, the court can examine whether administrative decisions in exercise of powers, even if conferred in subjective terms are made in good faith and on relevant considerations. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or facts in a material respect. (See: M.A. Rasheed & Ors. v. The State of Kerala, (1974) 2 SCC 687 ). The decision of the administrative authority must be related to the purpose of the enabling provisions of Rules or Statutes, as the case may be. If they are manifestly unjust or outrageous or directed to an unauthorized end, such decisions can be set aside as arbitrary and unreasonable. Likewise, when action taken is ultra vires, such action/decision has no legal basis and can be set aside on that ground. When there are Rules framed delineating the powers of the authority as well as the procedure to be followed while exercising those powers, the authority has to act within the limits defined by those Rules. A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness. This was so explained in Shri Sitaram Sugar Co. Ltd v. Union of India (1990) 3 SCC 223 in the following manner: "A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness. See Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223. See Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223. In the words of Lord Macnaghten in Westminster Corporation v. London and North Western Railway, [1905] AC 426: "...It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first...." In Barium Chemicals Ltd. and Anr. v. The Company Law Board and Ors., [1966] Supp. SCR 311, this Court states: "...Even if (the statutory order) is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts." In Renusagar, AIR 1988 SC 1737 , Mukharji, J., as he then was, states: "The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. Similarly, if the power has been exercised on a non-consideration or non-application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated". Similarly, if the power has been exercised on a non-consideration or non-application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated". The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it." 9. Having considered the submissions canvassed by learned advocates for the parties and having gone through the material produced on record, it emerges that except the incident of 12.1.2002, no other adverse remarks were made in the Confidential Record of the petitioner. On the contrary, the Director of Labour and Employment has issued certificate in the year 2003 itself in favour of the petitioner that she is enthusiastic, sincere, efficient and hard working. There is no dispute with regard to the proposition of law that scope of judicial review is limited as held by the Hon'ble Supreme Court. However, the Hon'ble Supreme Court in the aforesaid paragraph itself has held that the interference with the order of the Administrative Authority is permissible when it is found to be irrational, unreasonable or there is procedural impropriety and such decision can be interfered with where there is an error or arbitrariness in the decision making process by the respondent-authorities. 10. Thus, keeping in mind the aforesaid principles, if the facts of the present case are seen, it is revealed that on 12.1.2002, there was a public holiday. If the presence of any employee is required for any work on public holiday, written order of the head of the office or any responsible officer was required to be communicated to the petitioner on previous day. In the present case, the petitioner has placed on record Government Resolution dated 24.2.1984 where standing instructions are given for taking work on public holidays from the employees. In the present case, the petitioner has placed on record Government Resolution dated 24.2.1984 where standing instructions are given for taking work on public holidays from the employees. The respondents have failed to produce any document on record to suggest that any written order of the head of the office or any responsible officer was obtained and communicated to the petitioner that she has to remain present on public holiday i.e. on 12.1.2002. It is admitted by the respondents that no such written instruction was given but oral information was given to the petitioner. However, petitioner has specifically pleaded since beginning that no such oral instruction was given to her to remain present on public holiday. From the conduct of the petitioner, it is also revealed that when she came to know that her presence is required during afternoon, she immediately rushed from Ahmedabad to Gandhinagar and reached the office at 5.00 p.m. If the petitioner was informed in advance on previous day, she would have remained present in morning but no material to that effect is produced by the respondents. Thus, from the record and in the facts and circumstances of the present case, it can be said that the decision of the respondents to treat the said incident as negligence on the part of the petitioner and also to treat the same as adverse remarks in the Confidential Record is arbitrary and unreasonable. Except the aforesaid incident, no other adverse remarks were found in the Confidential Record of the petitioner. 11. Therefore, in the facts and circumstances of the present case, though the scope of the judicial review is limited, this Court is of the opinion that this is a fit case in which the powers are required to be exercised by this Court by quashing and setting aside the adverse remarks made against the petitioner. Accordingly, the communication dated 29.4.2002 (Annexure 'D') and 14.6.2001 (Annexure 'G') are hereby quashed and set aside. The respondents are directed to consider the case of the petitioner by giving deemed date of promotion from the date on which her junior Mr. Jetwa was promoted i.e. from 5.7.2003. The deemed date of promotion from 5.7.2003 shall be considered only for the purpose of pay fixation, seniority and pension. The respondents are directed to consider the case of the petitioner by giving deemed date of promotion from the date on which her junior Mr. Jetwa was promoted i.e. from 5.7.2003. The deemed date of promotion from 5.7.2003 shall be considered only for the purpose of pay fixation, seniority and pension. However, petitioner is not entitled to get the arrears for the period between 5.7.2003 to 15.2.2006 which is the date when the petitioner was granted higher pay in the scale of Rs. 5500-9000/-. Petition is accordingly allowed and disposed off. Rule is made absolute to the aforesaid extent. No order as to costs.