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2024 DIGILAW 947 (GUJ)

Nitaben S Vyas v. State Of Gujarat

2024-04-19

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. The petitioners have preferred present petitions under Articles 14, 16 and 226 of the Constitution of India challenging the inaction on the part of respondents with below mentioned relief/s:- SCA No.10420 of 2013 "11.(A) Your Lordship’s be pleased to admit/allow the present writ petition, in the interest of justice; (B) Be pleased to quashed and set-aside the impugned order dated 11.6.2013 (As per Ann. A) passed by the Respondent No.5 the President of Talala Taluka Adiwasi Seva-sangh, in the interest of justice; (BB) Directing the respondents to reinstate the petitioner with continuity of service and all consequential benefits including 100% backwages. (C) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction and be directed to the resp. no. 5 Management at Ann. A in view of Circular dated 22.10.1996( as per Ann.H) AND FURTHER be order them to pay regular salary without any deduction as well as outstanding amount of increment & Dearness Allowance from July 2011, forthwith, in the interest of justice; (D) Be pleased to give direction to all respondents & directing them to give the benefit of 6th pay-commission to the petitioner which has already been due, forthwith, on the interest of justice. (E) Pending, admission and final disposal of the present petition this Hon'ble court may mandatory be directed to Respondent No.5 management to continue or allow the petitioner for performing her duty, forthwith, in the interest of justice; (F) Any other and further relief’s may kindly be granted in the interest of justice" SCA No.10421 of 2013 "11.(A) Your Lordship’s be pleased to admit/allow the present writ petition, in the interest of justice; (B) Be pleased to quashed and set-aside the impugned order dated 11.6.2013 (As per Ann. A) passed by the Respondent No.5 the President of Talala Taluka Adiwasi Seva-sangh, in the interest of justice; (BB) Directing the respondents to reinstate the petitioner with continuity of service and all consequential benefits including 100% backwages. (C) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction and be directed to the resp. no. 1 to 4 declare illegal order passed by resp. no.5 Management at Ann. (C) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction and be directed to the resp. no. 1 to 4 declare illegal order passed by resp. no.5 Management at Ann. A in view of Circular dated 22.10.1996 (as per Ann.H) AND FURTHER be order them to pay regular salary without any deduction as well as outstanding amount of increment & Dearness Allowance from July 2011, forthwith, in the interest of justice; (D) Be pleased to give direction to all respondents & directing them to give the benefit of 6th pay-commission to the petitioner which has already been due, forthwith, on the interest of justice. (E) Pending, admission and final disposal of the present petition this Hon'ble court may mandatory be directed to Respondent No.5 management to continue or allow the petitioner for performing her duty, forthwith, in the interest of justice; (F) Any other and further relief/s may kindly be granted in the interest of justice" 2. The short facts giving rise to present petitions are that the petitioners were appointed by respondent No.5 as Ashramshala Teacher and Vidhyasahayak on 15.7.2004 and 25.9.1990 respectively. Both the petitioners were performing their duties sincerely and suddenly respondent No.5 had issued a Show-Cause-Notice and thereafter, on 18.11.2011 chargesheet came to be issued by respondent No.5 against both the petitioners. The petitioners had replied the said chargesheet on 24.11.2011 stating that the power of issuing Show-Cuase- Notice as well as chargesheet is with respondent No.4. However, respondent No.5 management had passed termination order and terminated services of both the petitioners. 2.1 Thereafter, the petitioners had preferred an Appeal before respondent No.3 on 25.1.2012 and interim relief was granted by respondent No.3. Thereafter, ultimately the petitioners received notice from respondent No.5 on 22.5.2013 regarding disciplinary action with reference to final order passed by the respondent No.3 in Appeal on 13.5.2013. The said notice came to be replied by the petitioners on 25.5.2013 stating that unless and until the order of vacating interim relief by respondent No.3 they were not going to follow earlier removal order. Thereafter, the petitioners had preferred Special Civil Application Nos. 9451 of 2013 and 9152 of 2013 respectively. During pendency of these petitions, the respondent No.5 issued termination orders and therefore, the petitioners had withdrawn said petitions with a view to file fresh petition. Thereafter, the petitioners had preferred Special Civil Application Nos. 9451 of 2013 and 9152 of 2013 respectively. During pendency of these petitions, the respondent No.5 issued termination orders and therefore, the petitioners had withdrawn said petitions with a view to file fresh petition. 2.2 In view of the aforesaid facts, the petitioners have preferred present petitions challenging the termination orders. 3. Heard Mr. Samir B. Gohil, learned Counsel appearing for the petitioners in both the petitions and Ms. Dharitri Pancholi, learned Assistant Government Pleader for the respondent Nos. 1 to 4 and Mr. Jayesh A Kotecha, learned Counsel for respondent No.5. 4. Mr. Samir B. Gohil, learned Counsel for the petitioners has submitted that the impugned action of respondent No.5 is not within the power of respondent No.5 however, the impugned order came to be passed by the respondent No.5 on 11.6.2013 and therefore, it is without jurisdiction. Learned Counsel for the petitioners has further submitted that time and again the petitioners have raised objection with regard to the impugned unauthorized and illegal action on the part of the respondent No.5, whereby the services of the petitioners came to be terminated without following any due process of law. He has also relied upon circular dated 10.1.2005 and submits that the respondent No. 5 is not competent and empowered to take decision and therefore, impugned action of the respondent No.5 is bad in law. He has further submitted that the concerned Inquiry Officer has opined that the impugned punishment imposed to the petitioners is very harsh and some lenient view is required to be taken, however by way of the impugned orders, the services of the petitioners came to be terminated. 4.1 In view of the above facts, Mr. Gohil, learned Counsel for the petitioners urges before the Court that the impugned orders may be quashed and set aside and present petitions may be allowed. 5. Ms. Dharitri Pancholi, learned Assistant Government Pleader has objected present petition. She has relied upon the affidavit-in-reply filed by the respondent No.3, in both the petitions, more particularly paragraph Nos. 6, 7 and 8 of both the petitions, which read as under:- Special Civil Application No.10420 of 2013 "6. I say and submit that by letter dated 22.10.1996 instructions were given by the Commissioner of Tribal Development Department not to terminate any employee without prior permission of Commissioner Tribal Development Department. 6, 7 and 8 of both the petitions, which read as under:- Special Civil Application No.10420 of 2013 "6. I say and submit that by letter dated 22.10.1996 instructions were given by the Commissioner of Tribal Development Department not to terminate any employee without prior permission of Commissioner Tribal Development Department. Inspite of the instructions was given by the letter dated 22.10.1996 of the Commissioner of Tribal development department. The institution has terminated the petitioner by order dated 19.01.2012 for the first time. This order was stayed by letter dated 02.02.2012 Development of Commissioner Department of Tribal Petitioner was reinstated on 09.02.2012 by the institution on the basis of letter dated 02.02.2012 of Commissioner Department of tribal development 7. I say and submit that after hearing of both the parties, departmental inquiry was initiated. The departmental inquiry was conducted by vigilance officer Rajkot and Ashramshala officer, Gandhinagar. The joint inquiry report was received on 20.11.2012. In the inquiry report it was found that the petitioner were not doing the service properly as per the rules. Commissioner of Tribal Development Department instructed to institution that the institution can take appropriate departmental action against the petitioner by letter dated 13.05.2013. By order dated 11.06.2013 the institution again releaved the petitioner on 11.06.2013 on the basis of commissioner Department and letter dated 13.05.2013 of Commissioner of Tribal Development Department and on the basis of Previous order dated 19.01.2012 of institution. 8. I say and submit that the institution had terminated the petitioner without taking permission from the commissioner of Tribal Development Department. The institution has no power or is not a competent authority to terminate the petitioner without prior permission from the Commissioner of Tribal Development Department. Special Civil Application No.10421 of 2013 "6. I say and submit that by letter dated 22.10.1996 instructions were given by the Commissioner of Tribal Development Department not to terminate any employee without prior permission of Commissioner Tribal Development Department. As per the Condition No.4 of letter dated 05.08.2004 of Commissioner of Tribal development the institution can not terminate the petitioner without Prior Permission of Commissioner of Tribal development. Inspite of the instructions was given by the letter dated 22.10.1996 and Condition No.4 of letter dated 05.08.2004 of the Commissioner of Tribal development department. The institution has terminated the petitioner by order dated 19.01.2012 for the first time. Inspite of the instructions was given by the letter dated 22.10.1996 and Condition No.4 of letter dated 05.08.2004 of the Commissioner of Tribal development department. The institution has terminated the petitioner by order dated 19.01.2012 for the first time. This order was stayed by letter dated 02.02.2012 of Commissioner Development Department. Petitioner was reinstated on 09.02.2012 by the institution on the basis of letter dated 02.02.2012 of Commissioner of Tribal development Department. 7. I say and submit that after hearing of both the parties, departmental inquiry was initiated. The departmental inquiry was conducted by vigilance officer Rajkot and Ashramshala officer, Gandhinagar. The joint inquiry report was received on 20.11.2012. In the inquiry report it was found that the petitioner were not doing the service properly as per the rules. Commissioner of Tribal Development Department instructed to institution that the institution can take appropriate departmental action against the petitioner by letter dated 13.05.2013. By order dated 11.06.2013 the institution again releaved the petitioner on 11.06.2013 on basis of letter dated 13.05.2013 of Commissioner of Tribal Development Department and on the basis of Previous order dated 19.01.2012 of institution. 8. I say and submit that the institution had terminated the petitioner without taking permission from the commissioner of Tribal Development Department. The institution has no power or is not a competent authority to terminate the petitioner without prior permission from the Commissioner of Tribal Development Department." 5.1 Again in compliance of oral order dated 3.4.2023, respondent No.3 has filed affidavit-in-reply dated 18.5.2023 and reiterated the fact that respondent No.3 has not even directed to take any decision and before taking such decision, respondent No.5 has to get approval from respondent No.3. However, respondent No.5 has not taken any prior approval from respondent No.3 and passed the impugned orders. 5.2 Respondent No.5 has also filed an affidavit-in-reply objecting the petitions, wherein it is contended that the respondent No.5 has taken decision in consonance with the approval, which regulates the Ashram Shalas, as there is no rules and regulations but it is governed under Schedule-F of the Bombay Primary Education Act being a residuary provision and therefore, respondent No.5 has taken the decision pursuant to that and informed respondent No.3 and therefore, there is no illegality or irregularly committed by respondent No.5 while passing impugned order. 6. I have perused the relevant material and documents available on record of these petitions. 6. I have perused the relevant material and documents available on record of these petitions. It appears that the petitioners were appointed as teacher and Vidhyasahayak in the Ashram Shala run by respondent No.5 and they were serving in the Ashram Shala. On certain occasion the petitioners did not remain present in the Ashram Shala and therefore, the respondent No.5 has removed the petitioners from the services. 7. It further appears that the first termination order was passed on 19.1.2012. The said order was challenged by the petitioners before the respondent No.3 and stay was granted by respondent No.3. Thereafter, impugned orders came to be passed on 11.6.2013 whereby first termination order dated 19.1.2012 came to be implemented. 8. From bare perusal of records and the averments made in the affidavit-in-reply filed by respondent No.3, this Court is of the opinion that the action impugned taken by respondent No.5 is dehors the provision of the settled principle of law and against the facts of the present case. Even from the averments made in the affidavit-in-reply filed by the respondent No.3, it is specifically contended before passing the impugned orders, the respondent No.5 has to take an approval from respondent No.3. Herein present case, it appears that before passing the impugned orders respondent No.5 has not taken approval from respondent No.3 but after passing the impugned orders the decision was forwarded to respondent No.5 for perusal but there is no further action and therefore, considering all these facts the impugned orders passed by respondent No.5 require to be quashed and set aside. 9. In view of the above discussion, so far as the petitioner of Special Civil Application No.10420 of 2013 is concerned, she is already reached to the age of superannuation in September 2021 and therefore she is considered to be retired from service and she is entitled to get all the consequential benefits. 10. Therefore, the concerned respondent is hereby directed to pay all the consequential benefits to the petitioner of Special Civil Application No.10420 of 2013 within period of four months from the date of receipt of copy of the order. 11. 10. Therefore, the concerned respondent is hereby directed to pay all the consequential benefits to the petitioner of Special Civil Application No.10420 of 2013 within period of four months from the date of receipt of copy of the order. 11. So far as the petitioner of Special Civil Application No.10421 of 2013 is concerned, the concerned respondent is hereby directed to reinstate her in service forthwith and pay all the consequential benefits within period of four months from the date of receipt of copy of the order.. 12. So far as the consequential relief for paying the dues of the petitioners are concerned, the petitioners may make appropriate proposal to respondent No.5. The respondent No.5 may after considering the same, forward the same to respondent No.3. Respondent No.3 shall decide the same in accordance with law as expeditiously as possible. 13. Both the petitions are hereby allowed. The impugned orders dated 11.6.2013 passed by respondent No.5 terminating services of the petitioners are hereby quashed and set aside. Rule is made absolute to the aforesaid extent in each of the petition. Direct service is permitted.