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2024 DIGILAW 1010 (GUJ)

Ambalal Punjabhai Rohit v. State Of Gujarat

2024-04-24

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. By way of present petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: “(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus, or any other appropriate writ, order and/or directions, directing the respondents to pay to the petitioner interest @ 18% p.a. on the legitimate retiral dues of the petitioner from 1.2.2005 till the actual date of payment made to the petitioner. (B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus, or any other appropriate writ, order and/or directions, directing the respondents to exempt the petitioner from passing of departmental examination on his attaining age of 45 years and consequently direct the respondents to release all increments and consequential benefits to the petitioner after giving increments from the completion of 45 years till his retirement and refix his pay and accordingly pay him arrears due and payable on such refixation and revise his retirement benefits and pension accordingly. (C) Pending admission hearing and till final disposal of the present petition, Your Lordships may be pleased to direct the respondents, their agents and servants to forthwith fix adhoc revised pension of the petitioner considering the increments and refixation. (D) Your Lordships may be pleased to pass such other and/or further orders as may be deemed fit, just and proper in the interest of justice.” 2. The brief facts giving rise to the present petition are that, the petitioner belongs to Scheduled Caste and he is constrained to approach this Court being aggrieved and dissatisfied by the non-payment of amount of interest on the outstanding amount of Gratuity, Commuted Pension, G.P.F., Leave Encashment of 300 days, Balance amount of Pension, Suspension allowances and other dues. It is the say of the petitioner that the petitioner was all throughout discriminated in service and the said discrimination continued even after his retirement and the respondents have not paid him the legitimate amount of interest on his legal dues. It is the case of the petitioner that, while he was serving at Mahemdabad, one criminal case came to be filed against him in which he was acquitted by the Trial Court as well as by this Court. It is the case of the petitioner that, while he was serving at Mahemdabad, one criminal case came to be filed against him in which he was acquitted by the Trial Court as well as by this Court. That due to frequent transfers and on account of the mental stress and harassment, the petitioner was not able to concentrate on his studies and was unable to clear internal departmental examination. That on account of his non-passing of the departmental examination, the petitioner was not granted increments and has suffered huge financial loss. The petitioner thereafter, filed Special Civil Application No.14015 of 2012 before this court which was disposed of on 18.06.2013 with a direction to make representation and respondents were directed to consider the representation. However, the respondent authority passed the order without properly appreciating the representation and rejected the representation on erroneous grounds. 2.1 Being aggrieved and dissatisfied with the same, the petitioner has preferred this petition under Article 226 of the Constitution of India. with the aforesaid prayers. 3. Heard learned advocate Mr.Premal Joshi, appearing on behalf of the petitioner and learned Assistant Government Pleader Ms.Dharitri Pancholi, appearing on behalf of the respondent – State Authorities. 4. Learned advocate Mr.Joshi has submitted that so far as the suppression of material facts is concerned, it has no relevance and no bearing on the prayers made in the present petition. He has submitted that the prayers made in the present petition is that the petitioner retired from the service and under the circumstances the retiral dues were not paid to the petitioner at the time of retirement. He has submitted that inspite of the representation made by the petitioner to the respondent authorities, as per the directions of this Court in Special Civil Application No.14015 of 2012 filed by the petitioner, the respondent authorities has passed the order without properly appreciating the representation and rejected the representation on erroneous grounds. He has therefore, urged that the present petition be allowed and the respondents be directed to pay the interest @ 18% on the legitimate retiral dues of the petitioner. 5. As against that, the learned AGP Ms.Dharitri Pancholi, appearing for the respondent authorities, has objected the present petition. He has therefore, urged that the present petition be allowed and the respondents be directed to pay the interest @ 18% on the legitimate retiral dues of the petitioner. 5. As against that, the learned AGP Ms.Dharitri Pancholi, appearing for the respondent authorities, has objected the present petition. She has submitted the copy of the departmental proceedings initiated against the present petitioner and submitted that from the bare perusal of the order dated 26.07.2004 passed by the disciplinary authority, it is crystal clear that the petitioner was served with the show- cause notice for the departmental proceedings, for which the petitioner himself had submitted his defence statement/written submissions on 11.04.2002 and after considering his submissions and the documentary evidence led before the disciplinary authority, the disciplinary authority has passed the order dated 26.07.2004. 5.1 In support of her submissions, learned AGP Ms.Pancholi has referred and relied upon the decision of the Hon’ble Apex Court in case of Kusha Duruka Vs. State of Odisha, reported in AIR 2024 SC 790 , wherein, in paragraphs 8 and 9, it has been observed and held as under : “8. In a recent matter, this Court again came across a litigant who had tried to overreach the Court by concealing material facts in Saumya Chaurasia v. Directorate of Enforcement. It was a case where the appellant before this Court had challenged the order passed by the High Court rejecting his bail application. He was accused of committing various crimes under the Indian Penal Code and the Prevention of Money Laundering Act, 2002. His bail application was rejected by the High Court on 23.06.2023. In the pleadings before this Court, it was mentioned that the High Court had committed gross error in not considering the chargesheet dated 08.06.2023 and the cognizance order dated 16.06.2023, which clearly suggested that there was error apparent on the fact of it. The fact which was available on record was that an order in the bail application was reserved by the High Court on 17.04.2023 and pronounced on 23.06.2023. Having some suspicion, this Court directed the appellant to file an affidavit to clarify the aforesaid position. There was no specific reply given to the aforesaid query to the Court. Rather vague statements were made. Having some suspicion, this Court directed the appellant to file an affidavit to clarify the aforesaid position. There was no specific reply given to the aforesaid query to the Court. Rather vague statements were made. Considering the facts available, this Court observed that there was a bold attempt by and on behalf of the appellant therein to misrepresent the facts for challenging the order 2023 INSC 1073 High Court of Chhattisgarh at Bilaspur in Miscellaneous Crl. Case No.1258/2023 impugned therein, regarding the conduct of the parties and the counsel, this Court made the following observations: “14. It cannot be gainsaid that every party approaching the court seeking justice is expected to make full and correct disclosure of material facts and that every advocate being an officer of the court, though appearing for a particular party, is expected to assist the court fairly in carrying out its function to administer the justice. It hardly needs to be emphasized that a very high standard of professionalism and legal acumen is expected from the advocates particularly designated Senior advocates appearing in the highest court of the country so that their professionalism may be followed and emulated by the advocates practicing in the High Courts and the District Courts. Though it is true that the advocates would settle the pleadings and argue in the courts on instructions given by their clients, however their duty to diligently verify the facts from the record of the case, using their legal acumen for which they are engaged, cannot be obliviated.” (emphasis supplied) 8.1. Finally, this Court dismissed the appeal with costs of Rs.1,00,000/-. 9. In Pradip Sahu v. The State of Assam the accused who was found to be guilty of concealing material facts from the court and against him the High Court had directed for taking appropriate legal action, had challenged the order passed by the High Court before this Court. In the aforesaid case, first bail application filed by the appellant there was dismissed by the High Court, thereafter he moved second bail application before the High Court in which notice was issued on 30.11.2021. During the pendency of the aforesaid application before the High Court, the appellant therein moved fresh bail application before the Trial Court on 01.12.2021, which was granted on the same day. During the pendency of the aforesaid application before the High Court, the appellant therein moved fresh bail application before the Trial Court on 01.12.2021, which was granted on the same day. The aforesaid facts came to the notice of the High Court on 08.12.2021 when a report of the Registrar (Judicial) was received, who was directed to conduct the enquiry in the matter. However, on an apology tendered by the appellant therein and also considering the facts as stated that he belonged to Tea Tribe community and his brother, a cycle mechanic, who was also pursuing the case, did not appreciate the intricacy of the law. As a result of which, the mistake occurred. This Court, having regard to the unqualified apology Special Leave Petition (Criminal) No. 4876 of 2022, decided by this Court on 24.08.2023 Gauhati High Court On 11.11.2021 tendered by the appellant therein, had set aside the order passed by the High Court to file FIR/complaint against the appellant therein.” 5.2 Learned AGP Ms.Pancholi has submitted that relying upon the aforesaid decision, this Court has also passed the order while dismissing the petition on the ground of suppression of material facts and therefore, she has urged that the present petition be dismissed on that count only. 6. I have heard the learned advocates appearing for the respective parties and perused the material produced on record. Learned advocate Mr.Joshi has emphasized upon the order dated 03.12.2007 passed by the Deputy Director, Land Records, Vadodara, infact, this impugned communication which is referred and relied upon by the petitioner is based upon the order passed by this Court in Special Civil Application No.25339 of 2007. In the first round of litigation in Special Civil Application No.25339 of 2007, even in that petition also, the petitioner has categorically mentioned on oath before this Court that there was no departmental proceedings initiated against him and because of pendency of the criminal proceedings the respondents have withheld his retiral dues. Therefore, this Court while disposing of the petition on 04.10.2007 has issued directions in paragraphs 4, 5 and 6, which read as under : “4. Therefore, in light of the aforesaid background, once the petitioner has retired and having the benefit of acquittal by competent criminal Court and not making the payment of retirement benefits under the guise of pendency of appeal is not proper on the part of respondent authorities. Therefore, in light of the aforesaid background, once the petitioner has retired and having the benefit of acquittal by competent criminal Court and not making the payment of retirement benefits under the guise of pendency of appeal is not proper on the part of respondent authorities. Therefore, the respondent authorities are directed to consider the case of petitioner for retirement benefits whatever available and legally due as per service rules in favour of petitioner and also consider that after acquittal, no departmental inquiry was initiated by the respondents and pass appropriate reasoned order in respect to the claim of retirement benefits including pension and gratuity of petitioner, within a period of three months from the date of receiving the copy of this order and communicate the decision to the petitioner. 5. The respondents shall have to consider that which rules of Gujarat Civil Services Rules or GR is restraining the respondent authorities not to pay the retirement benefits to such employee, who has been declared acquittal by the competent criminal Court and only appeal against the acquittal is pending. The respondents shall have to examine this issue also and then to pass appropriate reasoned order and if according to respondent authorities the petitioner is entitled whatever retirement benefits including provisional pension and gratuity amount being an undisputed amount as per service rules then same may be paid to the petitioner by the respondent authorities within a period of six weeks from the date of receiving the copy of this order. Otherwise respondents shall have to decide in accordance with law by passing appropriate reasoned order within a period of three months from the date of receiving the copy of this order and communicate the decision to the petitioner. 6. In view of the above observations and directions, present petition is disposed of without expressing any opinion on merits. However, in case if ultimate decision is adverse to the petitioner, it is open for the petitioner to challenge the same before appropriate forum in accordance with law. Direct service is permitted.” 6.1 Therefore, considering the directions given by this Court for payment of retiral dues, the order dated 03.12.2007 was passed by the Deputy Director, Land Records, Vadodara. However, in case if ultimate decision is adverse to the petitioner, it is open for the petitioner to challenge the same before appropriate forum in accordance with law. Direct service is permitted.” 6.1 Therefore, considering the directions given by this Court for payment of retiral dues, the order dated 03.12.2007 was passed by the Deputy Director, Land Records, Vadodara. In that order it was categorically mentioned by the authority that in response to the petition decided by this Court on 04.10.2007, the amount of retiral dues is to be paid subject to the final outcome of the criminal case pending against the petitioner. Now, again in the present petition also, the petitioner has not stated with regard to the departmental proceedings in paragraph no.2 of the petition and there was specific averment made that there was no any disciplinary action taken by the respondent authority. Infact, the petitioner was served with the show-cause notice and in response thereto, the petitioner had filed his written submissions before the disciplinary authority in the departmental proceedings and he himself has tendered his written submissions/defence statement before the authority on 11.04.2002 and after considering all these relevant aspects, the disciplinary authority had passed the order and imposed punishment upon the present petitioner on 22.06.2007. Inspite of the fact that the petitioner himself had tendered his written submissions/defence statement before the disciplinary authority in 2002, twice the petitioner has preferred petition before this Court without disclosing all these facts, thereby suppressing the materiel facts before this Court. At the time of preferring the present petition also, the petition has stated on oath incorrect facts and therefore, considering the facts of the present case, the petitioner is not entitled to any relief as prayed for in the present petition. 6.2 Considering the facts of the case and considering the submissions made on behalf of the learned advocate for the petitioner that though the petitioner was acquitted by the competent criminal court from the charges levelled against him in Criminal Case No.56 of 1999 on 30.04.2004, subsequently, the said decision came to be challenged by the State of Gujarat by way of preferring appeal and the appeal also came to be dismissed and therefore, the authority was held responsible for the delayed payment and therefore, the petitioner is entitled for interest on the delayed payment. It is pertinent to note herein that in the earlier round of litigation also, the petitioner has suppressed the material fact that there was departmental proceedings initiated against the petitioner in 2007. It is on the basis of the directions given by this Court, the respondent authority had passed the order and paid all the retiral benefits and interim amount of pension. Even in the present petition also, the petitioner has suppressed the material facts before this Court in paragraph 2 of this petition, and therefore, the petitioner is not entitled to get any relief as prayed for in the present petition. 7. Accordingly, the present petition is hereby dismissed. Rule is discharged. No order as to costs.