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2017 DIGILAW 837 (GUJ)

Chauhan Parbatsinh Ramsungji v. Deesa Nagarpalika

2017-04-19

G.R.UDHWANI

body2017
JUDGMENT : G.R. Udhwani, J. 1. The judgment and award dated 4.3.2015 passed by the Labour Court declining to entertain Reference (LCP) No. 8 of 2007 is under challenge in this petition. 2. The petitioner claims to have been appointed as pump operator by an order dated 18.5.1998 with the respondent Deesa Nagarpalika. As his services were terminated on 12.4.2005, a dispute was raised which ultimately culminated into the above referred reference. Certain other relevant events had also occurred before raising of the industrial dispute by the petitioner which are required to be stated, at the outset, to appreciate the controversy involved in the petition. 2.1 As a consequence of Resolution dated 30.7.1996 9 posts of pump operators were created on the set up of the respondent Nagarpalika. Before creation of such posts, it appears that some employees came to be adjusted by respondent No. 1 as pump operators. It appears that the said persons were not appointed against the sanctioned posts and therefore the Collector had reservations against that and directed the respondent Nagarpalika to adjust them against their original appointments. 2.2 It appears that petition came to be filed before this court in 1991 by some of such employees and eventually the matter was remanded to the Collector for reconsideration. It also appears that during the pendency of the case with the Collector, 9 posts of pump operators were sanctioned by the Government on 27.7.1997 on the set up of respondent Nagarpalika. Recruitment procedure was undertaken calling for open interview for filling up the said posts through public advertisements dated 7.5.1998. Interview for the said purpose was held on 17.5.1998 and it is the case of the petitioner that he was selected and appointed in pursuance of such recruitment procedure whereas it is the case of the respondent Nagarpalika that he was never appointed but had forged the documents of his appointment and fraudulently secured the appointment. This court would refer to the events that took place subsequent to the said appointment as claimed by the petitioner in later part of this judgment. This court would refer to the events that took place subsequent to the said appointment as claimed by the petitioner in later part of this judgment. 2.3 It appears from the original files of the first respondent which were called for by this court during the hearing of this case that on one hand the recruitment procedure was undertaken and on the other, the cases of those workmen who had approached this High Court against the orders of the Collector were under consideration on the ground that the posts were now sanctioned and objection of the Collector that their appointment was not against the sanctioned posts can be met with by giving appointment to such eligible persons against 2 of the 9 sanctioned posts. These facts are revealed from the notings on the file of the respondent as approved on 18.5.1998 itself. It also appears that the petitioner was selected and listed at item No. 8 of the select list in pursuance of the interview held on 17.5.1998. However, the original file does not contain any resolution or the letter of appointment qua the petitioner. 2.4 In the aforesaid background, Special Civil Application No. 7082 of 2005 came to be instituted by the petitioner challenging the show cause notice dated 2.5.2005 which was issued to the petitioner seeking cause from him for termination of his services. In that petition, this court passed the following order: "1. The present petition was filed challenging the show cause notice dated 31st March, 2005, calling upon the petitioner as to why legal action should not be taken against him. Respondents No. 2 and 3 appearing on caveat had produced on record, an order dated 12th April, 2005, by which the petitioner is removed from service. Though there was no prayer challenging the said order dated 12th April, 2005, I have permitted the learned counsel for the petitioner to address the Court at length on the legality of such an order also. 2. The petitioner claims to have been appointed as Bore Operator pursuant to an interview held on 17th May, 1998. It is the case of the petitioner that he was appointed by an order dated 18th May, 1998, having been selected in the said interview. 2. The petitioner claims to have been appointed as Bore Operator pursuant to an interview held on 17th May, 1998. It is the case of the petitioner that he was appointed by an order dated 18th May, 1998, having been selected in the said interview. The respondents, however, found that the appointment order of the petitioner is not to be found in the official records and that there was no resolution passed by the administration appointing the petitioner on the said post. It was also found that the petitioner has never been appointed by the respondents No. 2 and 3. A show cause notice dated 31st March 2005, therefore, came to be issued against the petitioner. In the show cause notice, it was stated inter alia that the petitioner has never been appointed on the post of Bore Operator. From the record of the Nagar Palika it is revealed that no resolution has been passed appointing the petitioner on the said post nor any procedure undertaken for his appointment. The show cause notice also states that the service book of the petitioner is not prepared nor has he produced the medical fitness certificate. It is, therefore, stated that the petitioner had committed a fraud and had secured appointment through fraudulent means. The petitioner was, therefore, called upon to show cause why he should not be dismissed from service and why salary paid to him should not be recovered. 3. The petitioner replied to the show cause notice by his letter dated 2-4-2005. He states that he appeared for the interview on 17th May, 1998 and was asked to report for duty after verifying his original documents. He is discharging his duties since more than six years and receives regular salary and increments. He has never been asked to supply medical fitness certificate. He, therefore, cannot be blamed for the defaults. He denied that he had secured employment through fraud. 3.1 Respondents, however, found the defence of the petitioner untenable. In the impugned order dated 12-4-2005, it is recorded that the petitioner was never selected in the interview held on 17th May, 1998. The petitioner was called upon to produce material in support of his selection, which he failed to do. It was found that the petitioner had secured appointment through fraud. He is, therefore, ordered to be dismissed from service. The petitioner was called upon to produce material in support of his selection, which he failed to do. It was found that the petitioner had secured appointment through fraud. He is, therefore, ordered to be dismissed from service. With respect to the salary already paid, separate proceedings are ordered to be initiated. 3.2 In the affidavit-in-reply filed by the respondents it is stated that pursuant to interview held on 17th May, 1998, the interview Committee drew a list of 8 candidates. The petitioner was placed at serial No. 8. Persons appearing at serial Nos. 1 to 7 were given appointments on 18-5-1998. The petitioner, however, was never given appointment and that appointment order dated 18-5-1998 produced by the petitioner was not on the record of the Municipality and there is no noting of the then President on the file. It is stated that appointment order of the petitioner dated 18-5-1998 is not in existence. Thus, the petitioner fraudulently produced his appointment order and secured employment. It is further stated that after reporting for duty through a false appointment order, the petitioner never produced the medical certificates nor his service book was prepared. It is stated that the name of the petitioner does not reflect in the seniority list. It is thus contended that the petitioner systematically planned fraud and ensured that the fraud does not come to light. It is stated that the action will be initiated against the responsible employees of the municipality, if found involved in the fraud. 4. On the basis of above averments on record, learned counsel for the petitioner submitted that the service of the petitioner could not have been dispensed with without full-fledged inquiry. He contends that the petitioner discharged his duties for six long years uninterruptedly. He submits that, therefore, it is not possible to believe that the petitioner was appointed through fraud and in any case, the petitioner should be given sufficient opportunity to defend himself. 5. Having considered the material on record and taken into account rival submissions, it is clear that the petitioner was given show cause notice before the impugned action was taken. The petitioner could produce no material in rebuttal. The stand of the respondents is that the petitioner was never appointed by the authorities and in fact, his appointment order was a forgery. The petitioner could produce no material in rebuttal. The stand of the respondents is that the petitioner was never appointed by the authorities and in fact, his appointment order was a forgery. It is stated on record that no such appointment order is found on the file, none was ever issued. 6. The petitioner having been given a show cause notice and his reply having been taken into consideration, in facts of the present case, I do not find that the principles of natural justice have been violated. Significant aspects of the matter appear to be the admitted facts that the services book of the petitioner has not been prepared. The petitioner has also not produced medical fitness certificate. To produce fitness certificate is one of the important formalities to be completed before regular appointment can be made in Government, Semi Government organizations. Service book is an important document recording the important events of the employees in Government and Semi Government organizations. For more than six years, when no such service book is prepared, the petitioner never made a grievance regarding the same. The petitioner also did not produce medical fitness certificate. No allegations of mala fides have been alleged against any of the respondents as to why the petitioner is falsely targeted. Principles of natural justice cannot be put in a straight-jacket and have to be applied to the facts of each case. When it is found that the petitioner is not an employee of the Corporation from the very outset, holding a full-fledged inquiry to prove the charges against him would not be necessary. Though the order records that term "dismissal", in reality it is nothing but the termination of engagement of the petitioner which was illegal from the inception. I therefore do not find any reason to interfere with the action of the respondent." 2.5 The said order came to be challenged in Letters Patent Appeal No. 188 and 902 of 2006 wherein the following order came to be passed. "These two Appeals preferred under clause 15 of the Letters Patent arise from the orders dated 26th April, 2005 and dated 3rd August, 2006 made by the learned Single Judge in above Special Civil Applications. Pursuant to the order made earlier, learned advocate Mr. Rathod has produced the original record in connection with the subject matter of these Appeals for perusal by this Court. Pursuant to the order made earlier, learned advocate Mr. Rathod has produced the original record in connection with the subject matter of these Appeals for perusal by this Court. The appellants-writ petitioners claim that by order dated 18th May, 1998 they were appointed by the respondent Deesa Municipality (hereinafter referred to as, "the Municipality") as "Bore Operator" (Pump Operator) in the pay-scale of Rs. 950-1500. Pursuant to the said orders of appointment they were issued posting orders. Over the years, they were transferred from one posting to another. Their pay bills were also assessed and they were paid salary regularly. However, on 31st March, 2005 the Municipality issued notice upon the appellants informing them that they were not appointed by the Municipality; and that they had forged the appointment orders and had secured posting on the basis of such forged appointment orders. They were called upon to show-cause why they should not be dismissed from service. The said notice were duly replied by the appellants. According to the appellants, pursuant to the advertisement published on 7th May, 1998, they had applied for appointment as Bore Operator and had appeared before the Interview Committee on 17th May, 1998. Pursuant to their selection in the said interview, they were given appointment order on 18th May, 1998. They had since been working as Bore Operator regularly. The said reply was not accepted by the Municipality. By order dated 12th April, 2005 the appellants were dismissed from service with immediate effect. Feeling aggrieved, they preferred the above Special Civil Applications before this Court under Article 226 of the Constitution of India. The petitions were contested by the respondent Municipality. It was admitted that the Municipality had issued public notice to invite applications for appointment as Bore Operators; that the interview for the posts of Bore Operator was held on 17th May, 1998. It was, however, submitted that to fill-in the nine vacancies the Municipality had appointed seven Bore Operators by direct selection and two posts were filled-in by appointment of the existing employees. The orders of appointment were issued on 18th May, 1998 under the signature of the then Chief Officer. No order for appointment was issued in favour of the appellants. Their posting done at the field office was never notified in the establishment branch of the Municipality. The Accountant had drawn the pay bills of the appellants. The orders of appointment were issued on 18th May, 1998 under the signature of the then Chief Officer. No order for appointment was issued in favour of the appellants. Their posting done at the field office was never notified in the establishment branch of the Municipality. The Accountant had drawn the pay bills of the appellants. Accordingly, the payment of salary was made. The establishment branch of the Municipality had no information about the said appointments, posting or payment of salary. The Municipality had never sent the appellants for medical examination which is a mandatory requirement. Nor had the Municipality prepared their service books. The aforesaid fraud was disclosed by an anonymous complaint received by the Municipality. The Municipality had promptly acted and discharged the appellants from service for their entry in the service was unauthorised. We have perused the original record. We are satisfied that no appointment order was ever issued in favour of the appellants herein. The signature of the Chief Officer on the appointment order received by the appellants is quite different from the signature of the Chief Officer found on the other appointment orders issued by the Municipality. We are, therefore, satisfied that the appellant's entry in service was based on forged appointment order. The appellants had been given a notice to show-cause and had been given adequate opportunity to establish that their appointment was indeed made by the Municipality. The appellants having failed to establish that the appointment order received by them were genuine, they have rightly been discharged from service. No case for interference is made out. The Appeals are dismissed in limine. Civil Applications stand disposed of." 2.6 The petitioner, after dismissal of the Letters Patent Appeal, raised an industrial dispute against his termination. The appellants having failed to establish that the appointment order received by them were genuine, they have rightly been discharged from service. No case for interference is made out. The Appeals are dismissed in limine. Civil Applications stand disposed of." 2.6 The petitioner, after dismissal of the Letters Patent Appeal, raised an industrial dispute against his termination. In the reference, statement of demand was filed by the petitioner and after reiterating that he was appointed in pursuance of the recruitment procedure and that his termination was illegal, the reference to the events qua the aforementioned Special Civil Application filed by him was made in Gujarati in paragraph No. 11 thus: "After receipt of the show cause notice, in order to see that Nagarpalika does not terminate my service, instead of replying to the show cause notice, I had filed writ application in the High Court under wrong advice and during the pendency of the writ proceedings, Nagarpalika had issued the order of termination dated 12.4.2005 and that to see that the principles of natural justice are not violated, and that Nagarpalika has an authority to conduct departmental inquiry, writ application was filed. In the writ application, the Hon'ble High Court had expressed some opinion but has not ruled that the order of termination dated 12.4.2005 issued by Nagarpalika is legal and valid on merits; and that the order of termination passed by the Nagarpalika is under challenge in this application." 2.7 Respondent No. 1 contested the proceedings in the Labour Court pointing out all the relevant facts as indicated above and eventually reference was dismissed. 3. The learned counsel for the petitioner would contend that jurisdictional error was committed by the Labour Court by not applying its mind independently but only relying upon the order passed in above stated Special Civil Application against the petitioner. It was argued that the petitioner was legally appointed and it was only with a view to accommodate Arjun Thakor and Laxmanbhai Solanki that services of the petitioner and one other employee came to be terminated. The learned counsel while referring to the summary of the performance of the selected candidates as on 17.5.1998 would contend that against the said two persons no marks were at all given and other persons were given the marks of their performance during the interview and arranged in the select list accordingly. The learned counsel while referring to the summary of the performance of the selected candidates as on 17.5.1998 would contend that against the said two persons no marks were at all given and other persons were given the marks of their performance during the interview and arranged in the select list accordingly. It was contended that in absence of the marks of the said two persons, they could not have been appointed then and only with a view to accommodate them, the case that the appointment letter was forged by the petitioner came to be developed against him. It was contended that the petitioner was enlisted at item No. 8 in the select list and since the advertisement was issued for appointment of 9 persons, the petitioner was, in fact, appointed. It was also argued that since the advertisement was for 9 persons, it should not have been reduced to 7 during or after interview and that therefore also the petitioner was entitled to be appointed as he was occupying place 8 in the select list. 3.1 The learned counsel submitted that certain crucial factors were not controverted by the first respondent in the proceedings before the Labour Court. It was argued that the petitioner had stated on oath that entire file of recruitment was manipulated by destroying the papers qua the petitioner and thus, the termination of the petitioner's service was actuated by mala fides. It was contended that before terminating the petitioner's service, no opportunity was given and therefore, the principles of natural justice were violated. 4. Opposing the petition, the learned counsel for the first respondent would contend that the proceedings before the Labour Court were not maintainable in view of the fact that this court had already examined in the writ petition the dispute raised by the petitioner in the reference. The learned counsel drew the attention of this court to the order passed by this court in the above Special Civil Application and contended that though the petitioner did not challenge the order of termination, the court had given opportunity to the petitioner to argue on the said order as well and without any demur or reservation fullfledged arguments were advanced by the petitioner which were considered by the court. It was pointed out that even the Division Bench of this court in Letters Patent Appeal concurred with the findings reached by the learned Single Judge of this court. The learned counsel contended that no order appointing the petitioner is found in the file of the first respondent; nor was there medical certificate evidencing the petitioner having passed medical test required as a condition for appointment to a public service. He would, therefore, contend that since the appointment order of the petitioner itself was a forged document, his name did not figure in the recommendees for medical examination and thus, there was no medical certificate on record qua the petitioner. The learned counsel contended that in absence of above crucial document, mere crediting of salary to the petitioner and maintaining of Provident Fund account would not lead to the inference about the legal appointment of the petitioner. The learned counsel reiterated the findings rendered by the Labour Court and urged this court to dismiss the petition. 5. Having considered the rival contentions and on perusal of the order dated 26.4.2005 passed in Special Civil Application No. 7082 of 2005 as also the order dated 8.8.2006 passed in Letters Patent Appeal No. 902 of 2006, it cannot be disputed that the case identical to the one agitated by the petitioner before the Labour Court was pleaded and agitated by the petitioner before this court. Having failed in the High Court, only course available to the petitioner for further proceedings was the Apex Court. The petitioner seems to have stated the facts and made a show before the Labour Court as if the High Court has not decided the case on merits but only on show cause notice. A perusal of the above two orders passed by the High Court belie such case of the petitioner. It can be noticed from the order passed in Special Civil Application No. 7082 of 2005 that though the petitioner had challenged the show cause notice, the court had given an opportunity to him to address it also on the order of termination and the petitioner was heard at length accordingly, and the court eventually found that no order of appointment was contained in the file of respondent No. 1 which fact was concurred by the Division Bench. 5.1 The impugned judgment and award relies upon the findings rendered by the High Court in Special Civil Application and Letters Patent Appeals above referred and rightly so inasmuch as the Labour Court was bound by the findings rendered by the High Court and could not have expressed any other opinion in absence of liberty given by the High Court to the petitioner to reagitate the case under the Industrial Disputes Act. Concededly, no such opportunity was asked for and granted by this court. In fact, as indicated above, the facts were twisted in the Labour Court to make a show as if the High Court has decided the case only on show cause notice. In the opinion of this court, the Labour Court would have gone wrong had it entertained the case of the petitioner on merits as it could not have exercised its jurisdiction in the face of the jurisdiction exercised by the High Court on identical facts of the petitioner itself. In fact, the petitioner was not entitled to maintain the industrial dispute after having exhausted the remedy under Article 226 of the Constitution of India and clause 15 of the Letters Patent. The orders in both the proceedings above were passed on merits after dealing with each and every contention raised by the petitioner. Thus, no jurisdictional error as urged by the learned counsel for the petitioner can be noticed in the impugned judgment and award. 5.2 The arguments pertaining to the flaws in procedure of recruitment cannot be permitted to be advanced in a case where appointment is stated to have been secured on the basis of forged appointment order. The arguments are advanced after the petitioner has taken advantage of the forged appointment order and only when the petitioner is asked to give up the job in the above circumstances. 6. In view of above facts, no substance is found in the petition. The petition must fail and is dismissed. Notice is discharged. No order as to costs. Petition Dismissed.