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2024 DIGILAW 1085 (GUJ)

Vishal Bakulchandra Pandya v. State of Gujarat

2024-05-01

HEMANT M.PRACHCHHAK

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JUDGMENT : HEMANT M. PRACHCHHAK, J. 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 certiorari or any other appropriate writ, order or direction, declaring the impugned Notice and Office Order dated 25.2.2014 terminating the service of the petitioner as arbitrary, unreasonable, irrational violating the principles of natural justice as well as Articles 14 and 16 of the Constitution and also as inconsistent with, and contrary to, Article 311(2) of the Constitution and quashing and setting aside the same. (B) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the condition no. 2 “the appointment is purely temporary and is terminable at any time by giving 24 hours notice on wither side” as is invoked to terminate the service of the confirmed employee, as illegal and void, as it is in violation of Article 311(2) of the Constitution. (C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent authorities to reinstate the petitioner in service from the date his service was terminated with all the consequential benefits, including back wages and continuity of service and other benefits that flow from such continuity of service. (D) Pending admission and final hearing of the present petition, Your Lordships may be pleased to suspend the operation of the impugned notice and Office Order dated 25.2.2014. (E) Your Lordships may be pleased to pass any other and/or further order, as deemed fit, in the interest of justice.” 2. The brief facts giving rise to the present petition are as under: 2.1 The petitioner rendered service with the respondent No. 2 Jamnagar Area Development Authority, as Accountant Clerk-cum-Computer Operator from 01.10.1997 to 28.10.2005 and again as Assistant Accountant from 01.11.2005 to 29.01.2007 on contract basis. It is the case of the petitioner that, by way of regular recruitment calling names from the Employment Exchange, the respondent no. 2, by Office Order dated 08.01.2008 appointed the petitioner on purely temporary basis to the post of Clerk-cum-Typist on the terms and conditions specified therein on basic salary of Rs. 3,050/- per month in the pay scale of Rs. 2, by Office Order dated 08.01.2008 appointed the petitioner on purely temporary basis to the post of Clerk-cum-Typist on the terms and conditions specified therein on basic salary of Rs. 3,050/- per month in the pay scale of Rs. 3050-75-3950-80-4590 plus usual allowances as admissible as per rules of Government of Gujarat. The appointment was on probation for a period of two years and condition no. 2 stipulated that “The appointment is purely temporary and is terminable at any time by giving 24 hours notice on either side.” 2.2 It is the case of the petitioner that on completion of his two years of probation on 08.01.2010, by order dated 03.02.2010, the respondent no. 2, by treating the probation period as continuous service confirmed the petitioner in terms of the terms and conditions of service stipulated in Government Resolution dated 30.09.1988, as amended from time to time. Accordingly, the petitioner was also given the benefit of pay revision under 6th Pay Commission and, thus, his pay was fixed in the Pay Band of Rs. 5200-20200 with Grade Pay of Rs. 1,900 with date of his first increment being 01.07.2008. That, to the utter shock and dismay of the petitioner, came, without forewarning or notice, like a bolt from the blue, “Notice and Office Order” dated 25.02.2014 from the respondent no. 2 terminating the service of the petitioner at 2 P.M. on 26.02.2014 by invoking the condition no. 2 of his initial appointment on probation, namely “the appointment is purely temporary and is terminable at any time by giving 24 hours notice on either side.” 2.3 Being aggrieved and dissatisfied by the aforesaid Notice and Office Order dated 25.02.2014 terminating the service of the petitioner without any notice or reason and without following the procedure prescribed in the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, the petitioner, by way of this petition under Article 226 of the Constitution of India, challenges the same, as being arbitrary, unreasonable and violative of Articles 14, 16, 21 and 311(2) of the Constitution. 3. Heard learned senior advocate Mr. Shalin Mehta assisted by learned advocate Ms. Aditi S. Raol, appearing on behalf of the petitioner, learned Assistant Government Pleader Ms. Dharitri Pancholi, appearing on behalf of the respondent No. 1 and learned advocate Mr. A.R. Thacker, appearing on behalf of the respondent No. 2. 4. Learned senior advocate Mr. 3. Heard learned senior advocate Mr. Shalin Mehta assisted by learned advocate Ms. Aditi S. Raol, appearing on behalf of the petitioner, learned Assistant Government Pleader Ms. Dharitri Pancholi, appearing on behalf of the respondent No. 1 and learned advocate Mr. A.R. Thacker, appearing on behalf of the respondent No. 2. 4. Learned senior advocate Mr. Mehta has submitted that the petitioner was initially appointed for a period of 2 years on probation and on completion of his probation period, the service of the petitioner was regularized by order dated 03.02.2010. He has submitted that thereafter, after about four years, by the impugned Notice and Office Order dated 25.02.2014, the service of the petitioner came to be terminated stating therein that “Shri Vishal Bakulchandra Pandya was appointed on purely temporary basis vide abovementioned office order as Clerk-cum-Typist in this office” and in the above office order the following condition was mentioned: “The appointment is purely temporary and is terminable at any time by giving 24 hours notice on either side.” He has referred to the affidavit-in-rejoinder filed on behalf of the petitioner and submitted that at the time of filing of this petition, the petitioner had already availed the remedy available by way of preferring an appeal before the Gujarat Civil Services Tribunal and also preferred an interim application, in-fact that fact was not mentioned in the petition but, before hearing of the present petition took place, the petitioner had approached the Tribunal and filed a purshish dated 18.03.2014 at page 67 of the compilation, by which the petitioner had withdrew the appeal in order to file petition before this Court. He has referred to the Additional Affidavit filed on behalf of the petitioner and submitted that the petitioner has produced all the relevant documents before the respondent No. 2 with regard to the service conditions and the SCR prepared by the respondent No. 2 and in the service book prepared by the respondent No. 2, the entry made in the service book by the respondent No. 2 at page 122 of the compilation is relevant for the purpose of considering the issue involved in the present petition. 4.1 In support of his submissions, learned senior advocate Mr. 4.1 In support of his submissions, learned senior advocate Mr. Mehta has referred and relied upon the decision of the Hon’ble Apex Court in case of S.J.S. Business Enterprises (P) Ltd. vs. State of Bihar and Others, (2004) 7 SCC 166 and emphasized upon the observations made in paragraphs 14, 15 and 16 and submitted that there is a difference between suppression of material facts and the facts and here in the present case, the facts which are not stated correctly by the petitioner cannot be termed as suppression of material facts in light of the observations made by the Hon’ble Apex Court in the aforesaid paragraphs, which read as under: “14. Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable, the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a Court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If however a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the Court to entertain the writ petition. The Rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another Court. But this Court has also held in C.B. Gosain Bhan vs. State of Orissa, 1963 (2) SCR 879 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. But this Court has also held in C.B. Gosain Bhan vs. State of Orissa, 1963 (2) SCR 879 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226. Therefore the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits. 15. In this case, admittedly the appellant has withdrawn the suit two weeks after the suit had been filed. In other words the appellant elected to pursue its remedies only under Article 226. The pleadings were also complete before the High Court. No doubt, the interim order which was passed by the High Court was obtained when the suit was pending. But by the time the writ petition was heard the suit had already been withdrawn a year earlier. Although the appellant could not, on the High Court's reasoning, take advantage of the interim order, it was not correct in rejecting the writ petition itself when the suit had admittedly been withdrawn, especially when the matter was ripe for hearing and all the facts necessary for determining the writ petition on merits were before the Court, and when the Court was not of the view that the writ petition was otherwise not maintainable. 16. 16. As the issue of suppression was the only ground on which the High Court has rejected the appellant's plea for relief, we would ordinarily have set aside the order of the High Court in view of our finding and remanded back to the High Court for decision of the matter on merits. But the matter has been argued on merits before us and we are in a position to dispose of the matter which we accordingly proceed to do.” 4.2 Learned senior advocate Mr. Mehta has emphasized that before actual hearing of the present petition took place before this Court, the petitioner had already filed purshish before the Gujarat Civil Services Tribunal for withdrawal of the appeal and therefore, the observations made by the Hon’ble Apex Court in paragraph 15 of the above referred judgment, the petitioner cannot be made remedy less, as on one hand, he has already withdrew the appeal filed before the Tribunal and on the other hand, the petition was dismissed on account of suppression of material facts. He has therefore, urged that the present petition be allowed. 5. As against that, the learned advocate Mr. Thacker has vehemently opposed the present petition and has raised serious objections with regard to suppression of material facts in paragraph 4 onwards and has referred to the detailed affidavit-in-reply filed on behalf of the respondent No. 2. He has submitted that the service of the present petitioner was primarily on temporary basis and his service was never regularized and even from the bare perusal of the order dated 03.02.2010 at Annexure-D, it cannot be termed that the order of regularization was passed. He has referred to the affidavit in Sur-rejoinder filed on behalf of the respondent No. 2 and reiterated the fact that before approaching this Court, the petitioner had approached the Tribunal on 26.02.2014 and in spite of that, the petitioner has stated incorrect facts in the petition. 5.1 In support of his submissions, learned advocate Mr. Thacker has referred and relied upon the decision of this Court in case of Manibhai Vashrambhai Thakkar and Another vs. State of Gujarat and Others, (2001) 1 GLH 353 , wherein, it has been observed in paragraph 9 as under: “9. In light of the facts that all the three petitions have been filed by the father and sons on the same cause of action and same subject matter. In light of the facts that all the three petitions have been filed by the father and sons on the same cause of action and same subject matter. In Special Civil Application No. 8261 of 2000, the petitioner has prayed for quashing and setting aside the order passed by the Government on 17th May, 2000 allotting the land to the private party which is contrary to the Government's own resolution dated 15th April, 1999 and also against the objects of the Repeal Act, 1999 and for declaring that the action of the Government is arbitrary. It is also necessary to mention one important aspect of this petition that in Para 12 of the petition, the petitioner has made the following averments: “12. The petitioner submits that the petitioner has not filed any other application or petition with regard to the subject matter of this petition on any other court of law, including the Hon'ble Supreme Court of India, except what is stated hereinabove.” 5.2 Learned advocate Mr. Thacker has also referred and relied upon the decision of the Hon’ble Apex Court rendered in case of Baloch Sobdarkhan Hamirkhan vs. State of Gujarat and Others in Special Leave to Appeal (Civil) No. 13181 of 2009 and in case of Bhaskar Laxman Jadhav and Others vs. Karamveer Kakasaheb Wagh Education Society, (2013) 11 SCC 531 , the observations made in paragraph 42 onwards and submitted that in the present case also the petitioner has on oath not stated the correct facts, more particularly in paragraph 12. He has also referred and relied on the decision of the Hon’ble Apex court in case of Kusha Duruka vs. State of Odisha, AIR 2024 SC 790 , wherein, in paragraph 8, 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 Enforcement5. It was a case where the appellant before this Court had challenged the order passed by the High Court6 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. It was a case where the appellant before this Court had challenged the order passed by the High Court6 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 charge-sheet 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. 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/-.” 5.3 Learned advocate Mr. Finally, this Court dismissed the appeal with costs of Rs. 1,00,000/-.” 5.3 Learned advocate Mr. Thacker has therefore, submitted that the petitioner has not come with clean hands before this Court as he has not stated true and correct facts before the Court and he has urged that the present petition be dismissed. 6. I have heard the learned advocates appearing for the respective parties and perused the material placed on record. The submission made by the learned senior advocate Mr. Mehta in paragraph 12 of the petition is as under: “12. The petitioner has not filed any other application or appeal before the Hon’ble Supreme Court of India or before this Court or before any other Court or Tribunal in respect of the subject matter to which this petition relates.” Of course, this statement is incorrect, as at the time of filing of the present petition, the fact with regard to the appeal preferred by the petitioner before the Gujarat Civil Services Tribunal and even the withdrawal of the same was not mentioned in the petition and therefore, the learned advocate Mr. Thacker has vehemently objected the present petition only on the ground that the present petition is not to be entertained only on the ground of suppression of material facts. It is an admitted fact that while filing the present petition, the petitioner has categorically stated in paragraph 12 as above which is factually incorrect because at that point of time, the appeal preferred by the petitioner was pending before the Service Tribunal as the petition was affirmed on 18.03.2014 and on that very same day, the petitioner had filed purshish before the Service Tribunal therefore, even at the time of filing of this petition, the petitioner has made incorrect statement in paragraph 12. However, considering the ratio laid down by the Hon’ble Apex Court in case of S.J.S. Business enterprises (P) Ltd. (Supra), more particularly in paragraphs 15 and 16, that when the petitioner has suppressed the facts before this Court but it cannot be termed as suppression of material facts, therefore, this Court has not taken any serious view in the matter, however, at this stage, to meet the end of justice, the Court is of the opinion that appropriate cost be imposed on the petitioner having not stated true and correct facts before the Court. 6.1 So far as the termination of the petitioner is concerned, this termination of the petitioner is not in consonance with the provisions of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 as the petitioners’ service came to be regularized after completion of period of 2 years of his probation. The plain reading of the order dated 03.02.2010 at Annexure-D from the respondent No. 2 confirming the service of the petitioner by treating the probation period as continuous service and the last entry made in the service book itself at page 122 very categorically mentioned by the respondent No. 2, it cannot be denied that the service of the petitioner was regularized and therefore, I am of the opinion that the impugned order of termination passed by the respondent No. 2 is deserves to be quashed and set aside. 7. For the foregoing reasons, the present petition is hereby allowed. The impugned order of termination dated 25.02.2014 passed by the respondent No. 2 at Annexure-E is hereby quashed and set aside. The respondent No. 2 is hereby directed to reinstate the petitioner in service from the date his service was terminated with all consequential benefits, including back wages and continuity of service. Such exercise shall be carried out by the respondent No. 2 within a period of four weeks from the date of receipt of order of this Court. 7.1 So far as the stating of incorrect facts in paragraph 12 of the petition is concerned, the petitioner is directed to deposit Rs. 25,000/- before the Gujarat High Court Legal Aid Committee within a period of four weeks from the date of receipt of order of this Court and the receipt of the same it to be placed on record. Rule is made absolute. 8. Direct service is permitted.