Gujarat High Court
Sudhirkumar Dadubhai Gadhvi vs The Ahmedabad Municipal Corporation on 20 January, 2025
NEUTRAL CITATION
C/SCA/12699/2024 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. 12699 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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SUDHIRKUMAR DADUBHAI GADHVI & ORS.
Versus
THE AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE with MR KM ANTANI(6547) for
the Petitioner(s) No. 1,2,3
MR MAULIN RAVAL, SENIOR ADVOCATE 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. The present Special Civil Application has been filed praying for the following reliefs:
"(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- Annex.'A', the inquiry report dated 10.06.2024 at Annex.'L' and the impugned order dated 22.08.2024 at Annexure-A. "(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 recruitment 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.Page 1 of 11 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:00 IST 2025
NEUTRAL CITATION C/SCA/12699/2024 CAV JUDGMENT DATED: 20/01/2025 undefined (C) During the pendency hearing and final disposal of this petition, this Hon'ble Court be pleased to stay the implementation, execution and operation of the impugned order dated 23.08.2024 at Annexure-A and direct the Respondent to restore the petitioner to their post enabling their active service.
"(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 recruitment notice at Annexure-W to the extent that it tends to fill up the vacancies having arisen owing to the termination of the petitioners and a further direction to the Respondent to keep the posts held by the petitioners vacant."
(D) This Hon'ble Court be pleased to grant ex-parte ad-interim relief in terms of Para 9(D) may be granted.
(E) Any other and further reliefs as deemed just and proper looking to the facts of this case, may kindly be granted in favour of the petitioners, in the interest of justice."
2. The petitioners were appointed as Station Fire Officers with the respondent corporation following a recruitment process initiated through an advertisement dated 26.10.2018. Petitioner No. 1 served as a Station Fire Officer with the Vadodara Municipal Corporation on a contractual basis from 2016 to 2019. Petitioner No.2 possessed relevant work experience in the field, while Petitioner No. 3 worked as a Fire Officer with Durga Fire and Safety Consultants and later as a Trainee Officer (Fire and Security) with Pidilite Industries Limited for two years. Upon successful selection, the petitioners joined the corporation as Station Fire Officers on 28.05.2019 and served at various fire stations. On 30.11.2022, the petitioners were asked to provide evidence regarding their entry into the National Fire Service College ('NFSC' for sake of brevity), Nagpur. Subsequently, their statements were recorded in December 2022 and January 2023. Following this, they were served with show cause notices dated Page 2 of 11 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:00 IST 2025 NEUTRAL CITATION C/SCA/12699/2024 CAV JUDGMENT DATED: 20/01/2025 undefined 24.08.2023, alleging ingenuine entry into the NFSC, Nagpur and proposing termination from service. The petitioners submitted replies to the notices on 31.08.2023. Aggrieved, they filed Special Civil Application No. 16166 of 2023, wherein this Hon'ble Court directed the respondent corporation to conduct a departmental inquiry as per Rule 9 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, ensuring adequate opportunity to the petitioners.
3. Pursuant to the Court's order, charge-sheets dated 01.01.2024 were issued to the petitioners, leading them to file Special Civil Application No. 2436 of 2024, raising concerns of non-compliance with the 1971 Rules and seeking permission to engage legal practitioners for their defense. The petition was disposed of with observations and directions on 19.02.2024. After the inquiry, the inquiry officer submitted a report on 10.06.2024, confirming the allegations against the petitioners. A final show cause notice dated 29.07.2024 was issued, proposing termination. The petitioners challenged this notice, the inquiry report, and the charge-sheet by filing Special Civil Application No. 11894 of 2024. This Court, vide its order dated 09.08.2024, directed the respondent corporation to consider the petitioners' representation before passing a final order. Despite the representation, the corporation issued termination orders dated 23.08.2024. Aggrieved by the charge-sheet, inquiry report, and termination orders, the petitioners have filed the present petition.
4. Learned senior counsel Mr. Shalin Mehta, assisted by learned counsel Mr. K.M. Antani for the petitioners, submits that the impugned order issued under Section 56 of the Gujarat Provincial Page 3 of 11 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:00 IST 2025 NEUTRAL CITATION C/SCA/12699/2024 CAV JUDGMENT DATED: 20/01/2025 undefined Municipal Corporation Act, 1949, violates the Court's directives in Special Civil Application No.16166 of 2023, which mandated prosecution under the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The respondent corporation ignored the petitioners' representations, including a significant one dated 16.08.2024, and dismissed objections on irrelevant grounds, violating principles of natural justice. The charge against the petitioners, alleging fraudulent entry into the NFSC, Nagpur based on forged documents, lacks a factual foundation, as the testimonials obtained after training are genuine, and the petitioners met the eligibility for appointment based on experience. Moreover, no evidence links the petitioners to any fraudulent entries, and the investigation is ongoing. The proceedings reflect bias and a premeditated intent to terminate the petitioners, with similar officers not facing prosecution. Discriminatory treatment is evident, as other employees who obtained NFSC, Nagpur qualifications during the same period were not prosecuted. The prosecution, based on allegations from a questionable source, lacks diligence. Therefore, the impugned order and proceedings should be quashed, and the Special Civil Application should be allowed.
5. Per contra, Mr. Maulin Raval, learned Senior Counsel for the respondent submits that the petition challenges the inquiry and termination order issued by the respondent. It is submitted that the respondent did not violate natural justice principles during the inquiry, and the Court, under Article 227, cannot reassess the evidence presented. The petitioners had applied for the Station Officer post in 2018, with NFSC, Nagpur Sub-Officer certification as a requirement. They were appointed based on this qualification, but a Page 4 of 11 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:00 IST 2025 NEUTRAL CITATION C/SCA/12699/2024 CAV JUDGMENT DATED: 20/01/2025 undefined complaint in 2022 alleged irregularities in their NFSC, Nagpur admission, leading to an investigation. It was found that the petitioners' admission to NFSC, Nagpur was based on fraudulent sponsorship from CPWD, which CPWD later denied. Despite multiple hearings and opportunities to present their case, the petitioners could not provide sufficient evidence regarding their previous employment or the legitimacy of their NFSC, Nagpur admission. The petitioners admitted that their admission was invalid, and any appointment based on fraudulent documents is void. The respondent corporation followed due process, and the inquiry adhered to the principles of natural justice. The petitioners' claims are based on technicalities, such as the appointment of a common presenting officer, which did not prejudice them. Given the fraudulent admission, the petitioners have no legitimate claim to the post. He, therefore, urged that the petition be dismissed.
6. In rejoinder, Mr. Shalin Mehta, learned Senior Counsel for the petitioner submits that the petition challenges the respondent's jurisdiction to prosecute the petitioners, asserting that the charge against them, related to their entry into NFSC, Nagpur, does not constitute "misconduct" under the relevant rules. The petitioners argue that the inquiry was not conducted in accordance with the directives of the Court in Special Civil Application No.16166 of 2023, which mandated the following of the Discipline and Appeal Rules. The respondent's reliance on the petitioners' admission of irregular entry into NFSC, Nagpur is irrelevant to the misconduct in question, as the qualifications obtained were genuine. The petitioners also claim that the respondent's attempt to contact the sponsor of their admission to NFSC, Nagpur is inconsequential for the jurisdictional Page 5 of 11 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:00 IST 2025 NEUTRAL CITATION C/SCA/12699/2024 CAV JUDGMENT DATED: 20/01/2025 undefined issue. Additionally, the ongoing investigation by NFSC, Nagpur regarding the alleged forgery has not yet produced any conclusive evidence, making the charge presumptive. The petitioners contend that the departmental inquiry lacked a proper legal basis, as it was not conducted under any applicable regulation or rule, violating the Court's directives. The respondent's failure to address the jurisdictional issue has caused prejudice, and this lack of adherence to proper procedures undermines the legitimacy of the inquiry.
7. Heard the learned Senior Counsels representing the parties and perused the documents on record.
8. The departmental proceedings originated from a complaint by one Mustafabhai Musabhai Patel to the Deputy Municipal Commissioner (Vigilance). The complaint alleged that the petitioners had fraudulently secured admission to the NFSC, Nagpur for the Sub-officer's Course. Based on this complaint, the petitioners were required to submit evidence regarding their admission. Their statements were subsequently recorded, and they were served with a show-cause notice alleging illegal admission to the NFSC, Nagpur, which warranted termination. The petitioners were also served with a charge-sheet, for gaining admission to the NFSC, Nagpur using bogus or fabricated sponsorships from private and government organizations. Following this, departmental proceedings were initiated, and the petitioners participated in the inquiry. The Inquiry Officer's report dated 10.6.2024 concluded that the charges were proven and that the petitioners 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 their services by impugned order dated 22.8.2024.
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9. Notably, NFSC, Nagpur, in response to an inquiry by the respondent Corporation, confirmed that the certificates issued to the petitioners are valid and genuine. NFSC, Nagpur as a Central Institution, has not conducted any investigation declaring the petitioners' admissions invalid. As of now, the admissions and certificates held by the petitioners remain valid. While allegations of a scam concerning admissions to NFSC, Nagpur, during 2012-2016 are under investigation by local police, the petitioners have not been named as accused in this matter, nor has any finding implicated their involvement.
10. The petitioners possess valid qualifications, having cleared the recruitment process for the position of Fire Station Officer with the respondent Corporation, based on their 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.
11. In the considered view of this Court, the respondent Corporation exceeded its jurisdiction by conducting such an inquiry. The appropriate investigation authorities are already probing the allegations, and the petitioners' documents are in their custody. The Corporation could only have initiated disciplinary proceedings if NFSC, Nagpur, had invalidated the admissions or certificates. NFSC's communication confirms the certificates' validity and the unavailability of the original documents due to their custody with the investigating agency. In the absence of evidence from the Page 7 of 11 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:00 IST 2025 NEUTRAL CITATION C/SCA/12699/2024 CAV JUDGMENT DATED: 20/01/2025 undefined investigating agency indicating that the petitioners submitted forged documents, the Corporation's actions were unwarranted. The conclusions arrived at in the disciplinary proceedings are presumptive in nature.
12. 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 that unless an act or omission is prescribed as misconduct under the Certified Standing Orders or service regulations, an employer cannot punish a workman for it. The relevant observations of the Hon'ble Apex Court are integral to the legal reasoning herein. Paragraph 4 and 5 of the said judgment read as under:
"4. The High Court while dismissing the petition held that even if A the allegation of misconduct does not constitute misconduct amongst 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 Page 8 of 11 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:00 IST 2025 NEUTRAL CITATION C/SCA/12699/2024 CAV JUDGMENT DATED: 20/01/2025 undefined 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 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, 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 well-established 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 wise. Relying upon the earlier decision of this Court in Rohtak Page 9 of 11 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:00 IST 2025 NEUTRAL CITATION C/SCA/12699/2024 CAV JUDGMENT DATED: 20/01/2025 undefined 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 none-the-less be a misconduct punishable as such. We are unable to accept this view of law and it has to be rejected."
13. The learned counsel for the respondent Corporation has not provided any evidence demonstrating that the alleged act constitutes 'misconduct' under the applicable rules and regulations. NFSC, Nagpur, the institution that issued the certificates has not declared the petitioners' admissions as based on forged documents or revoked their certificates. Therefore, the Corporation's unilateral action to conduct a fishing and roving inquiry into the validity of the admissions and certificates is beyond its authority. Furthermore, the petitioners fulfilled the eligibility conditions for their appointments, which remain unchallenged. The charges against them lacked a Page 10 of 11 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:00 IST 2025 NEUTRAL CITATION C/SCA/12699/2024 CAV JUDGMENT DATED: 20/01/2025 undefined foundational basis at the time of issuing the charge-sheet.
14. 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 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 admissions and certificates is impermissible without explicit findings from the issuing institution.
15. 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.
16. In view of the aforesaid reasons and observations, the disciplinary proceedings initiated against the petitioners and the termination order dated 22.8.2024 are quashed and set aside. The writ petition is ALLOWED. There shall be no order as to costs.
Sd/-
(ANIRUDDHA P. MAYEE, J.) OMKAR Page 11 of 11 Uploaded by OMKAR C. MAHAWAR(HC00201) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:00 IST 2025