Shaikh Asif Ahmed Mohammad Hanif vs Ahmedabad Municipal Corporation

Gujarat High Court

Shaikh Asif Ahmed Mohammad Hanif vs Ahmedabad Municipal Corporation on 20 January, 2025

                                                                                                                NEUTRAL CITATION




                       C/SCA/13061/2024                                       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. 13061 of 2024


                     FOR APPROVAL AND SIGNATURE:


                     HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                     ==========================================================

                                 Approved for Reporting                       Yes            No
                                                                                             No
                     ==========================================================
                                          SHAIKH ASIF AHMED MOHAMMAD HANIF
                                                         Versus
                                          AHMEDABAD MUNICIPAL CORPORATION
                     ==========================================================
                     Appearance:
                     MR SAHIL M SHAH(6318) for the Petitioner(s) No. 1
                     MR SANKET K PANDYA(9451) for the Petitioner(s) No. 1
                     MR MAULIN RAVAL, SR. COUNSEL with MR HAMESH C NAIDU(5335) for
                     the Respondent(s) No. 1
                     ==========================================================

                       CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE


                                                        CAV JUDGMENT

1. The present Special Civil Application is 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 quashing and setting aside the termination order dated 22.08.2024 issued by the Respondent Corporation (at Annexure-A);

NEUTRAL CITATION C/SCA/13061/2024 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 implementation, execution and operation of the impugned termination order dated 22.08.2024 issued by the Respondent Corporation (at Annexure-A);

(D) This Hon'ble Court be pleased to grant ex-parte ad interim relief in terms of Para 12(C) may kindly 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 petitioner, in the interest of justice."

2. The brief facts leading to filing of the present petition are as under:-

2.1 The respondent Corporation published a recruitment advertisement on 26.10.2018 for the post of Station Fire Officer, in which, the petitioner successfully participated. The petitioner was subsequently appointed as Assistant Sub Officer (Probation) on 01.12.2021. On 30.11.2022, the respondent Corporation issued a notice requiring the petitioner to provide evidence regarding his entry into the National Fire Service College ('NFSC' for sake of brevity), Nagpur, and recorded his statement on 12.12.2022. Following this, a show cause notice for termination was issued on 24.08.2023, alleging that the petitioner had gained an illegal admission to the National Fire Service College, Nagpur. The petitioner responded to the show cause notice on 31.08.2023.

Similar cases were brought before this Hon'ble Court in Special Civil Application No. 16166 of 2023 and related matters, challenging the show cause notices on the grounds of non-compliance with due process. By judgment dated 26.10.2023, this Court directed the respondent Corporation to conduct a departmental inquiry under Rule 9 of the 1971 Rules.

NEUTRAL CITATION C/SCA/13061/2024 CAV JUDGMENT DATED: 20/01/2025 undefined 2.2 Pursuant to the Court's directions, the respondent Corporation issued a charge-sheet dated 01.01.2024 and the petitioner participated in the subsequent inquiry proceedings. The Inquiry Officer, in a report dated 10.06.2024, confirmed the petitioner's guilt. Based on the inquiry report, the Corporation served a final show cause notice dated 29.07.2024, proposing termination of the petitioner's services. The petitioner submitted his reply to the final show cause notice on 16.08.2024. Adjudicating it, the respondent Corporation issued a termination order on 22.08.2024, which the petitioner received on 23.08.2024. Aggrieved by the termination, the petitioner has approached this Court through the present petition.

3. Mr. Sahil M, Shah, the learned counsel for the petitioner submits the termination order dated 22.08.2024 violates Article 14 of the Constitution, is unreasonable, and contravenes legal principles. He submits that the main charge against the petitioner is that his entry into the NFSC, Nagpur was based on forged documents. However, the Corporation does not claim that the testimonials earned after completing the NFSC, Nagpur training are invalid. Additionally, when the Corporation inquired about the authenticity of these testimonials, the NFSC, Nagpur confirmed their validity. The learned counsel contends that the Corporation cannot terminate the services based on the nature of the entry into the NFSC as it has no relevance to the entry into or tenure of service. The termination is not due to any misconduct during the service, and such an event is not a valid ground for departmental action under 1971 Rules or Conduct Rules. Therefore, the charges lack jurisdiction and legal basis, rendering the termination order invalid and deserving of being set aside.

NEUTRAL CITATION C/SCA/13061/2024 CAV JUDGMENT DATED: 20/01/2025 undefined 3.1 The learned counsel submits that an FIR regarding alleged illegal admission at NFSC, Nagpur for the years 2012-2016 is under investigation and the petitioner is not named as an accused. The Corporation's inquiry does not establish that the petitioner availed an illegal admission, and any such allegation remains presumptive. Terminating the petitioner's services based on unsubstantiated charges lacking a legal foundation is unwarranted, even if aligned with the Gujarat Civil Service (Conduct) Rules or the 1971 Rules.

3.2 He submits that the respondent Corporation has violated this Hon'ble Court's directions to proceed departmentally under the 1971 Rules. As per these rules, the charges against a government servant must involve violations of Rule 3, such as failing to maintain integrity, devotion to duty, or engaging in unbecoming conduct. Rules 3A and 3B further mandate courtesy in official dealings and prohibit workplace harassment. Only such violations justify departmental proceedings under the 1971 Rules. He submits that the charge sheet does not cite any valid grounds for departmental prosecution under the 1971 Rules. Thus, the proceedings against the petitioner are not compliant with these rules, and the termination order should be set aside. He submits that the charge sheet, inquiry report, and proceedings, including the show cause notice reveal a premeditated intent by the respondent Corporation to terminate the services of the petitioner. The biased departmental prosecution and repeated threats of termination indicate that the proceedings were a mere formality. Therefore, the termination order, being based on a prejudiced process, should be set aside.

3.3 He submits that the departmental prosecution was initiated on a complaint from Mustafa Musa Patel, a former Page 4 of 13 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:08 IST 2025 NEUTRAL CITATION C/SCA/13061/2024 CAV JUDGMENT DATED: 20/01/2025 undefined employee of the respondent Corporation who voluntarily retired on 30.09.2021. Notably, said Mr. Patel is alleged to have also gained admission into NFSC, Nagpur during the contentious 2012-2016 period mentioned in the FIR, casting doubt on his credibility. The proceedings against the petitioner are therefore baseless, lacking proper inquiry into the genuineness of the allegations, and initiated at the behest of a questionable source.

3.4 He submits that the petitioner claims discrimination as 16 other Fire Department employees, who also gained entry to NFSC during the contentious 2012-2016 period, have not had their services terminated. The learned counsel for the petitioner prays to allow the present petition and quash and set aside the termination order.

4. Mr. Maulin Raval, the learned senior counsel for respondent Corporation submits that the petition challenges the inquiry and termination order but falls under Article 227, limiting this Court's scope to re-appreciate evidence. As per Supreme Court rulings, interference is warranted only if findings are perverse, lack evidence, or are legally untenable. Additionally, no breach of natural justice in the departmental inquiry is alleged by the petitioner.

4.1 He submits that the petitioner has not alleged any violation of natural justice but argues against appointing a common presenting officer under Rule 9 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971. However, the rule does not prohibit a common presenting officer, and the petitioner had even requested a common representative to represent their interests during the inquiry. He states that a common presenting officer was engaged to expedite the inquiry, as noted by the inquiry officer. This caused no prejudice to the petitioner, who has not demonstrated Page 5 of 13 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:08 IST 2025 NEUTRAL CITATION C/SCA/13061/2024 CAV JUDGMENT DATED: 20/01/2025 undefined any harm in the petition. The challenge appears to be an attempt to obstruct the termination order, which was issued following due process.

4.2 It is submitted that at this stage that adequate opportunity to cross examine each and every witness was given to the petitioner which was also executed and undertaken by the representative as engaged petitioner. Thus, there is neither any case of non-adherence of principles of natural justice in the inquiry. He submits that as per legal principles, an inquiry is unnecessary when a delinquent employee admits to misconduct. Here the petitioner admitted to securing NFSC admission without eligibility, rendering the admission invalid. Nonetheless, an inquiry was conducted to ensure natural justice and following due process, the termination order was appropriately issued.

4.3 The learned senior counsel states that admissions or appointments obtained through fraud, misrepresentation, or forgery are void ab initio. The petitioner admitted during the inquiry and in the petition memo to securing NFSC admission through invalid sponsorship, implying the admission was void. The learned senior counsel reiterates that the petitioner's NFSC admission was obtained using fabricated or forged documents through an agent. As such, the petitioner cannot claim equitable relief, and the petition should be dismissed outright.

4.4 The learned senior counsel argues that Rule 9 of the Rules, 1971, pertains to the disciplinary process, which has been duly followed. The petitioner was given ample opportunity to present the case, examine witnesses, and cross-examine. There is no breach of natural justice or evidence of prejudice against the petitioner. Given that the petitioner secured admission using Page 6 of 13 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:08 IST 2025 NEUTRAL CITATION C/SCA/13061/2024 CAV JUDGMENT DATED: 20/01/2025 undefined fraudulent and forged documents, no relief should be granted under the Court's extraordinary jurisdiction.

5. In rejoinder, Mr. Shah, the learned senior counsel denies all allegations, including claims that the petitioner admitted to not working with Koshi Hydro Electric Corporation, obtaining admission through an agent, or paying money for admission. He submits that the petitioner also denies securing admission at NFSC through fraud, forgery, or misrepresentation, and denies any admission of misconduct or ineligibility. It is denied that the admission was null, ab initio void, or required no inquiry. The petitioner asserts that the petitioner provided satisfactory answers to the vigilance department.

5.1 It is submitted that the petitioner has never stated that the sponsorship letter is false or that the Petitioner had obtained admission in NFSC through money. In fact, even NFSC has not stated that the admission has wrongly been secured by the Petitioner. NFSC has stated that all the concerned documents have been submitted to the investigating authorities.

5.2 It is submitted that the respondent has made unsubstantiated and baseless allegations in the affidavit-in-reply and the same are denied hereby. The averments made by the respondent in the affidavit-in-reply are based on conjectures and are based on a completely false reading of the statement made by the Petitioner before the vigilance department. He submits that the respondent has made false statements on oath in the affidavit-in- reply and has sought to completely mislead this Hon'ble Court.

5.3 It is denied that adjournments were sought in the inquiry proceedings on flimsy grounds. It is denied that no prejudice Page 7 of 13 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:08 IST 2025 NEUTRAL CITATION C/SCA/13061/2024 CAV JUDGMENT DATED: 20/01/2025 undefined was caused to the Petitioner because of the manner in which the inquiry proceedings were conducted by the Respondent. It is denied that adequate opportunity of cross-examination was provided to the Petitioner. It is also denied that the petitioner has obtained admission based on bogus, fraud or forged documents.

6. Heard the learned counsels representing the parties and perused the documents on record.

7. 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 Fire Service College, Nagpur for the Sub-officer's Course. Based on this complaint, the petitioner was required to submit evidence regarding the admission. The statement was subsequently recorded and he was was served with a show-cause notice alleging illegal admission to the NFSC, Nagpur, which warranted termination. The petitioner was also served with a charge-sheet for gaining admission to the NFSC using bogus or fabricated sponsorship from private and government organization. Following this, departmental proceedings were initiated, and the petitioner participated in the inquiry. The Inquiry Officer's report dated 10.06.2024 concluded that the charges were proven and that the petitioner had wrongfully gained admission to the Sub-officer's Course by submitting false sponsorship letter. This culminated in a final show-cause notice, leading to the termination of the service by impugned order dated 22.08.2024.

8. Notably, NFSC, Nagpur, in response to an inquiry by the respondent Corporation, confirmed that the certificates issued to the petitioner are valid and genuine. NFSC, as a Central Institution, Page 8 of 13 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:08 IST 2025 NEUTRAL CITATION C/SCA/13061/2024 CAV JUDGMENT DATED: 20/01/2025 undefined has not conducted any investigation declaring the petitioner's admission invalid. As of now, the admissions and certificates held by the petitioner remain 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.

9. The petitioner possesses valid qualifications, having cleared the recruitment process for the position of Fire Station Officer with the respondent Corporation, based on the eligibility and necessary qualifications, including training from NFSC, Nagpur. The Corporation initiated its inquiry based on a private complaint concerning the admissions, even though similar allegations are being investigated under an FIR filed by NFSC, Nagpur, which remains pending.

10. 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 petitioner's 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 investigating agency indicating that the petitioner submitted forged documents, the Corporation's actions were unwarranted. The conclusions arrived at in the disciplinary proceedings are presumptive in nature.

NEUTRAL CITATION C/SCA/13061/2024 CAV JUDGMENT DATED: 20/01/2025 undefined

11. 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 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 Page 10 of 13 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:08 IST 2025 NEUTRAL CITATION C/SCA/13061/2024 CAV JUDGMENT DATED: 20/01/2025 undefined 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, (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 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 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 Page 11 of 13 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:08 IST 2025 NEUTRAL CITATION C/SCA/13061/2024 CAV JUDGMENT DATED: 20/01/2025 undefined 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."

12. 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 petitioner's admissions as based on forged documents or revoked the 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 petitioner fulfilled the eligibility conditions for the appointment, which remain unchallenged. The charges against him lacked a foundational basis at the time of issuing the charge-sheet.

NEUTRAL CITATION C/SCA/13061/2024 CAV JUDGMENT DATED: 20/01/2025 undefined

13. 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 admissions and certificates is impermissible without explicit findings from the issuing institution.

14. 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.

15. In view of the aforesaid reasons and observations, the disciplinary proceedings initiated against the petitioner and the termination order dated 22.08.2024 are quashed and set aside. The Writ Petition is allowed. There shall be no order as to costs.

(ANIRUDDHA P. MAYEE, J.) cmk Page 13 of 13 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:17:08 IST 2025