Gujarat High Court
Inayat Hussain Shaikh vs Ahmedabad Munincipal Corporation on 20 January, 2025
NEUTRAL CITATION
C/SCA/12697/2024 CAV JUDGMENT DATED: 20/01/2025
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Reserved On : 24/09/2024
Pronounced On : 20/01/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12697 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
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Approved for Reporting Yes No
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INAYAT HUSSAIN SHAIKH
Versus
AHMEDABAD MUNINCIPAL CORPORATION
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Appearance:
MR SHALIN A. MEHTA, SR. COUNSEL WITH MR KM ANTANI(6547) for the
Petitioner(s) No. 1
MR MAULIN RAVAL, SR. COUNSEL, WITH MR HAMESH C NAIDU(5335) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
CAV JUDGMENT
1. Draft Amendment is allowed. Necessary amendment shall be carried out forthwith.
2. In this Special Civil Application, the petitioner has prayed for the following relief:
"9(A) This Hon'ble Court be pleased to admit and allow this petition.
(B) This Hon'ble Court be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction and consequently quash the impugned charge-sheet dated 01.01.2024, the inquiry report dated 10.06.2024, and the impugned order dated 22.08.2024 at Annexure-A. Page 1 of 13 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/12697/2024 CAV JUDGMENT DATED: 20/01/2025 undefined BY WAY OF DRAFT AMENDMENT 9(B) (i) This Hon'ble Court be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction and consequently quash the impugned agenda notice at ANNEXURE W to the effect that it warrants an action of filling up of vacancy arisen due to the termination of the petitioner.
(C) During the pendency hearing and final disposal of this petition, this Hon'ble Court be pleased to stay implementation, execution and operation of the impugned order dated 22.08.2024 at Annexure-A and direct the Respondent to restore the petitioner to his post enabling his active service.
BY WAY OF DRAFT AMENDMENT 9 (C) (i) During the pendency hearing and final disposal of this petition, this Hon'ble Court be pleased to stay implementation, execution and operation of the impugned agenda notice at Annexure-W and a further direction to the Respondent to keep the post held by the petitioner vacant.
(D) This Hon'ble Court be pleased to grant ex-parte ad-interim relief in terms of Para.9(C) may be granted."
3. The brief facts of the petitioner's case is that, the petitioner served as a Full-time Lecturer (Fire) at the College of Fire Technology from 04.07.2005 to 15.02.2007, as Fire Officer at Durga Fire & Safety Consultants from 17.02.2007 to 30.06.2007, and as Fire Safety Officer at Apollo Hospitals International Ltd. from 11.07.2008 to 31.07.2012. Subsequently, he was appointed as Station Officer at Rajkot Municipal Corporation (27.07.2012 to 14.06.2016), Vadodara Municipal Corporation (04.06.2016 to 25.06.2019), and Ahmedabad Municipal Corporation (25.06.2019 to 18.01.2021). The petitioner also completed the Divisional Fire Officer course from National Fire Service College ('NFSC' for sake of brevity), Nagpur Page 2 of 13 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/12697/2024 CAV JUDGMENT DATED: 20/01/2025 undefined in 2018. On 18.01.2021, following a recruitment process advertised on 11.11.2020, the petitioner was appointed as Divisional Officer (Fire). However, on 30.11.2022, the respondent corporation called upon the petitioner to provide evidence regarding his entry into the NFSC, Nagpur and, pursuant to this, his statement was recorded on 08.12.2022. On 24.08.2023, the petitioner was served with a show cause notice alleging irregularities in his entry into NFSC, Nagpur and proposing his termination. The petitioner replied to the notice on 01.09.2023. Aggrieved by the show cause notice, the petitioner and similarly situated officers challenged it before this Court, which, by order dated 26.10.2023, directed the respondent corporation to conduct a departmental inquiry under Rule 9 of the 1971 Rules, ensuring compliance with due process and providing adequate opportunity to the petitioner. Pursuant to this, the respondent corporation conducted an inquiry, which resulted in a report dated 10.06.2024 confirming the petitioner's guilt. Following a final show cause notice on 29.07.2024, the petitioner filed Special Civil Application No. 11895 of 2024, challenging the inquiry report, charge-sheet, and show cause notice. By order dated 09.08.2024, this Court directed the respondent corporation to consider the petitioner's representation before passing a final order. The respondent corporation passed a final order of termination on 22.08.2024. The petitioner further contends that following his termination, the vacancy for the post of Divisional Fire Officer is now being filled. Aggrieved by the termination order, the petitioner has filed the present Special Civil Application.
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4. Mr. Shalin Mehta, learned Senior Counsel for the petitioner submits that the petitioner challenges the impugned order passed under Section 56 of the Gujarat Provincial Municipal Corporation Act, 1949, arguing it contradicts the directives issued by this Court in Special Civil Application No. 16166 of 2023, which required prosecution under the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The petitioner claims that the corporation ignored his representations, procedural lapses, and jurisdictional issues. The charge against the petitioner, regarding alleged forged documents for admission to the NFSC, Nagpur, is deemed irrelevant to his appointment as Divisional Officer, which was based on experience as a Station Officer, not NFSC, Nagpur qualifications. The petitioner also argues that the charge is not supported by evidence, as the NFSC, Nagpur has denied any irregularities and the FIR does not name him. The proceedings are seen as premeditated and discriminatory, with similar cases not being prosecuted. Additionally, the charge stems from a complaint by a former employee, Mustafa Musa Patel, whose own credentials are questionable. The petitioner therefore prays to quash the impugned order as it violates Court directives and lacks legal foundation.
4.1 He further submits that the respondent's hasty recruitment for the post vacated by the petitioner's termination reveals a premeditated intent to oust the petitioner. This action demonstrates malafide intent, aiming to render any remedy against the termination ineffective, highlighting a deliberate and orchestrated plan.
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5. Per contra, Mr. Maulin Raval, learned Senior Counsel appearing for the respondent submits that the present petition challenges the inquiry conducted against the petitioners. It is argued that under Article 227 of the Constitution, courts cannot re-appreciate evidence from such inquiries. The departmental inquiry allegedly adhered to principles of natural justice, with no claims of procedural violations. The petitioners were appointed based on sponsorship certificates later found to be forged, leading to a vigilance inquiry confirming the inauthenticity of their NFSC, Nagpur admission. Despite repeated requests, the petitioners failed to provide evidence of their eligibility or prior employment with Gujarat State Civil Defense. The respondent corporation asserts that the appointments were void due to fraud and misrepresentation. Adequate opportunities for defense were provided, with no proven prejudice or breach of natural justice.
6. Mr. Shalin Mehta, learned Senior Counsel for the petitioner further submits in rejoinder that the petitioner contends that the present case invokes Article 226, not Article 227, of the Constitution, and does not seek re-appreciation of evidence but challenges the jurisdiction of the corporation to prosecute them for alleged "misconduct." The alleged misconduct, relating to admission to NFSC, Nagpur, does not meet the definition of misconduct under the Conduct Rules or Discipline and Appeal Rules. The corporation's reliance on vague and presumptive charges of forgery, based on incomplete investigations, is unwarranted. The petitioners' qualifications and testimonials have been verified as genuine by NFSC, Nagpur, and no forged or Page 5 of 13 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/12697/2024 CAV JUDGMENT DATED: 20/01/2025 undefined fabricated documents have been proven. The petitioner argues that determining whether NFSC, Nagpur entry constitutes misconduct is the key issue, and the respondent's vague allegations and reliance on admissions are irrelevant. They request that the Special Civil Application be allowed.
7. Mr. Maulin Raval, learned Senior Advocate for the respondent submits in sur-rejoinder that the respondent refutes the petitioner's claim that no action has been taken against 16 other Fire Department personnel, stating that a vigilance investigation is ongoing against 18-19 personnel, including those named by the petitioner. During the inquiry, documents from File No. 2 were provided to the petitioner, showing that Gujarat State Civil Defence never sponsored them for the NFSC, Nagpur course. Despite requests, the petitioner failed to produce evidence to support their claims. The petitioner's own submissions reveal contradictions regarding sponsorship and engagement dates, as their NFSC, Nagpur course completion in 2005 predates their honorarium-based appointment in 2008. The investigation, initiated in 2019, is comprehensive and includes the petitioner's case. The respondent requests dismissal of the writ petition.
8. Heard the learned Senior Counsels representing the parties and perused the documents on record.
9. The departmental proceedings originated from a complaint by one Mustafabhai Musabhai Patel to the Deputy Municipal Commissioner (Vigilance). The complaint alleged that the petitioner had fraudulently secured admission to the National Page 6 of 13 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/12697/2024 CAV JUDGMENT DATED: 20/01/2025 undefined Fire Service College, Nagpur. Based on this complaint, the petitioner was required to submit evidence regarding his admission. HIs statement was subsequently recorded, and he was served with a show-cause notice alleging illegal admission to the NFSC, Nagpur which warranted his termination. The petitioner was also served with a charge-sheet, accusing him of gaining admission to the NFSC, Nagpur using bogus or fabricated sponsorships from private and government organizations, ultimately leading to the issuance of Sub-officer's certificates. Following this, departmental proceedings was initiated, and the petitioner participated in the inquiry. The Inquiry Officer's report dated 10.6.2024 concluded that the charges were proven and that the petitioner had wrongfully gained admission to the Sub-officer's Course by submitting false sponsorship letters. This culminated in a final show-cause notice, leading to the termination of his service by the impugned order dated 22.8.2024.
10. Notably, NFSC, Nagpur, in response to an inquiry by the respondent Corporation, confirmed that the certificate issued to the petitioner is valid and genuine. NFSC, Nagpur as a Central Institution, has not conducted any investigation declaring the petitioner's admission invalid. As of now, the admission and Certificate held by the petitioner remains valid. While allegations of a scam concerning admissions to NFSC, Nagpur, during 2012- 2016 are under investigation by local police, the petitioner has not been named as accused in this matter, nor has any finding implicated his involvement.
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11. The petitioner possesses valid qualifications, having cleared the recruitment process for the position of Divisional Fire Officer with the respondent Corporation, based on eligibility and necessary qualifications, including training from NFSC, Nagpur. The Corporation initiated its inquiry based on a private complaint concerning their admissions, even though similar allegations are being investigated under an FIR filed by NFSC, Nagpur, which remains pending.
12. In the considered view of this Court, the respondent Corporation exceeded its jurisdiction by conducting such an inquiry. The appropriate investigative authorities are already probing the allegations, and the petitioner's documents are in his custody. The Corporation could only have initiated disciplinary proceedings if NFSC, Nagpur, had invalidated the admission or Certificate. NFSC's communication confirms the Certificate's validity and the unavailability of the original documents due to their custody with the investigating agency. In the absence of evidence from the investigating agency indicating that the petitioner had submitted forged documents, the Corporation's actions were unwarranted. The conclusions arrived at in the Disciplinary Proceedings are presumptive in nature.
13. The Hon'ble Apex Court in the case of Rasiklal Vaghajibhai Patel v. Ahmedabad Municipal Corporation and Another reported in (1985) 2 SCC 35 has held and observed in paragraphs 4 and 5 as under:-
"4. The High Court while dismissing the petition held that even if A the allegation of misconduct does not constitute misconduct amongst Page 8 of 13 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/12697/2024 CAV JUDGMENT DATED: 20/01/2025 undefined those enumerated in the relevant service regulations yet the employer can attribute what would otherwise per se be a misconduct though not enumerated and punish him for the same. This proposition appears to us to be startling because even though either under the Certified Standing Orders or service regulations, it is necessary for the employer to prescribe what would be the misconduct so that the workman/employee knows the pitfall he should guard against. If after undergoing the elaborate exercise of enumerating misconduct, it is left to the unbridled discretion of the employer to dub any conduct as misconduct, the workman will be on tenterhooks and he will be punished by ex post facto determination by the employer. It is a well- settled canon of penal jurisprudence-removal or dismissal from service on account of the misconduct constitutes penalty in law-that the workmen sought to be charged for misconduct must have adequate advance notice of what section or what conduct would constitute misconduct. The legal proposition as stated by the High Court would have necessitated in depth examination, but for a recent decision of this Court in Glaxo Laboratories v. The Presiding Officer, Labour Court Meerut & Ors.(1) in which this Court specifically repelled an identical contention advanced by Mr. Shanti Bhushan, learned counsel who appeared for the employer in that case observing as under:
"Relying on these observations, Mr. Shanti Bhushan urged that this Court has in terms held that there can be some other misconduct not enumerated in the standing order and for which the employer may take appropriate action. This observation cannot be viewed divorced from the facts of the case. What started in the face of the court in that case was that the employer had raised a technical objection ignoring the past history of litigation between the parties that application under Sec. 33A was not maintain able. It is in this context that this Court observed that the previous action might have been the outcome of some misconduct not enumerated in the standing order. But the extracted observation cannot be elevated to a proposition of law that some misconduct neither defined nor enumerated and which may be believed by the employer to be misconduct ex post facto would expose the Page 9 of 13 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/12697/2024 CAV JUDGMENT DATED: 20/01/2025 undefined workman to a penalty. The law will have to move two centuries back ward to accept such a construction. But it is not necessary to go so far because in Salem Erode Electricity Distribution Co. Ltd. v. Salem Erode Electricity Distribution Co. Ltd. Employees Union, (1) this Court in terms held that the object underlying the Act was to introduce uniformity of terms and conditions of employment in respect of workmen belonging to the same category and discharging the same or similar work under an industrial establishment, and that these terms and conditions of industrial employment should be wellestablished and should be known to employees before they accept the employment. If such is the object, no vague undefined notion about any act, may be innocuous, which from the employer's point of view may be misconduct but not provided for in the standing order for which a penalty can be imposed, cannot be incorporated in the standing orders. From certainty of conditions of employment, we would have to return to the days of hire and fire which reverse movement is hardly justified. In this connection. we may also refer to Western India Match Company Ltd v. Workmen(2) in which this Court held that any condition of service if inconsistent with certified standing orders, the same could not prevail and the certified standing orders would have precedence over all such agreements. There is really one interesting observation in this which deserves noticing Says the Court:
"In the sunny days of the market economy theory people sincerely believed that the economy law of demand and supply in the labour market would settle a mutually beneficial bargain between the employer and the workman Such a bargain, they took it for granted, would secure fair terms and conditions of employment to the workman. This law they venerated as natural law. They had an abiding faith in the verity of this law. But the experience of the working of this law over a long period has belief their faith."
Lastly we may refer to Workmen of Lakheri Cement Works Ltd. Associated Cement Companies Ltd. This Court repelled the contention that the Act must prescribe the minimum which has to be prescribed in an industrial establishment, but it does not exclude the extension other Page 10 of 13 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/12697/2024 CAV JUDGMENT DATED: 20/01/2025 undefined wise. Relying upon the earlier decision of this Court in Rohtak Hissar District Electricity Supply Co. Ltd. v. State of U.P., the Court held that everything which is required to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is none-the-less a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty. Accordingly, the contention of Mr. Shanti Bhusan that some other act of misconduct which would per se be an act of misconduct though not enumerated in S.O. 22 can be punished under S.O. 23 must be rejected.
It is thus well-settled that unless either in the Certified Standing Order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and punish the workman even though the alleged misconduct would not be comprehended in any of the enumerated misconducts.
5. The High Court fell into error when is observed that:
"The conduct of the petitioner in suppressing the material facts and misrepresenting his past on the material aspect cannot be said to be a good conduct. On the contrary it is unbecoming of him that he should have deliberately suppressed the material fact and tried to obtain employment by deceiving the Municipal Corporation. It is clearly a misconduct "
After thus holding that the suppressio very and suggestio false would constitute misconduct, the High Court held even if it does not fall in any of the enumerated misconducts, yet for the purpose of service regulation, it would nonethe-less be a misconduct punishable as such. We are unable to accept this view of law and it has to be rejected."
14. The learned counsel for the respondent Corporation has Page 11 of 13 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/12697/2024 CAV JUDGMENT DATED: 20/01/2025 undefined not provided any evidence demonstrating that the alleged act constitutes 'misconduct' under the applicable rules and regulations. NFSC, Nagpur, the institution that issued the Certificate, has not declared the petitioners' admissions as based on forged documents or revoked his certificates. Therefore, the Corporation's unilateral action to conduct a fishing and roving inquiry into the validity of the admission and certificates is beyond its authority. Furthermore, the petitioner fulfilled the eligibility conditions for their appointment, which remain unchallenged. The charges against him lacked a foundational basis at the time of issuing the charge-sheet.
15. The respondent Corporation's argument, as advanced by learned counsel Mr. Maulin Raval, that any appointment or admission secured through misrepresentation, fraud, or forgery is void ab initio, is untenable in the absence of its determination by NFSC, Nagpur, to that effect. The Corporation's assumption of authority to invalidate the admission and Certificate is impermissible without explicit findings from the issuing institution.
16. In conclusion, the disciplinary proceedings and the subsequent termination order are beyond the jurisdiction, authority, and domain of the respondent Corporation. It is within the exclusive purview of NFSC, Nagpur to determine whether a candidate's admission was obtained through fraudulent means and to revoke the certificate accordingly.
17. In view of the aforesaid reasons and observations, the disciplinary proceedings initiated against the petitioner and the Page 12 of 13 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:16:56 IST 2025 NEUTRAL CITATION C/SCA/12697/2024 CAV JUDGMENT DATED: 20/01/2025 undefined termination order dated 22.08.2024 are quashed and set aside. The writ petition is allowed. There shall be no order as to costs.
Sd/-
(ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN Page 13 of 13 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:16:56 IST 2025