Bombay High Court
Chief Executive Officer, Z.P. ... vs Ishwardas S/O Rambhau Nipane And ... on 11 August, 2015
Bench: A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Civil Application [CAO] No. 1168 of 2015
IN
Misc. Civil Application [Review] St. No. 6997 of 2015
IN
Writ Petition No. 4184 of 2013 [decided]
With
Contempt Petition No. 129 of 2015
ig ****
[A] Civil Appln. No. 1168 of 2015 :
1. Chief Executive Officer,
Zilla Parishad, Gondia.
...Org. Respdt. No.1.
2. Medical Officer,
Primary Health Centre,
Rawanwadi,
Zilla Parishad, Gondia.
...Org. Respdt. No.2. ..... Applicants.
Versus
1. Ishwardas Rambhau Nipane,
aged 39 years,
occupation - Multipurpose
Worker,
resident of Sawri, Post -
Jawaharnagar,
Bhandara,
Tq. & Distt. Bhandara.
...Org. Petitioner.
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2. Scheduled Tribe Certificate
Scrutiny Committee,
Adiwasi Vikas Bhavan,
Nagpur,
through its Member-Secretary. ..... Respondents.
*****
Mr. A.Y. Kapgate, Adv., for the Applicants in Civil Application No.
1168 of 2015.
Mr. R.S. Parsodkar, Adv., for Respondent no.1 [original
petitioner].
Mr. A. Parihar, Adv., for Chief Executive Officer, Zilla Parishad,
Gondia.
*****
[B] Contempt Petition No. 129 of 2015 :
Ishwardas Rambhau Nipane,
aged 40 years,
occupation - Multipurpose
Worker,
resident of Sawari, Post -
Jawaharnagar,
Bhandara,
Tq. & Distt. Bhandara. ..... Petitioner.
Versus
1. Shri D.B. Gawade,
the Chief Executive Officer,
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Zilla Parishad, Gondia.
2. Shri H.S. Karmarkar,
District Health Officer,
Zilla Parishad, Gondia,
Distt. Gondia. ..... Respondents.
*****
Mr. R.S. Parsodkar, Adv., for the petitioner.
Mr. A. Parihar, Adv., for Respondent Nos. 1 and 2.
*****
CORAM : A.B. CHAUDHARI AND
P.N. DESHMUKH, JJ.
Date : 11th August, 2015.
ORAL JUDGMENT [per A.B. Chaudhari, J.]:
01. Civil Application No. 1168 of 2015 is for condonation of delay
in filing the Review Application, namely Misc. Civil Application St. No.
6997 of 2015 arising out of the Judgment and Order dated 27th
January, 2015 passed by this Court in Writ Petition No. 4184 of 2014.
02. Heard.
03. Delay is condoned. Civil Application No. 1168 of 2015 is
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disposed of.
------
Misc. Civil Appln. St. No. 6997/2015 arising out of Writ Petition
No. 4184 of 2015, decided on 27th January, 2015 AND
Contempt Petition No. 129 of 2015 :
01.
Rule. Rule is made returnable forthwith. Learned Adv. Mr.
Parsodkar waives service for respondent no.1. Heard learned counsel
for the rival parties. By consent of rival parties, this Misc. Civil
Application [Review] St. No. 6997 of 2015 and Contempt Petition No.
129 of 2015 are taken up for final hearing and disposed of by this
Judgment and Order.
02. This Review Application came up before us in view of the
Counsel Note dated 14th July, 2015 filed by the Review Applicants in
which it is stated as under:-
"In view of the present assignments; the counsel
for the applicant/respondent no. 1 and 2 is requesting
this Hon'ble Court to be pleased to constitute a special
bench of Shri A.B. Chaudhari and Shri P.N. Deshmukh, JJ,
as the order dated 27th January, 2015 in Writ Petition
No. 4184 of 2013 [D], that is sought to be reviewed, was
passed by the bench of Shri A.B. Chaudhari and Shri
P.N. Deshmukh, JJ."
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03. Office to put a stamp number on this Counsel Note which
has not been put inadvertently.
04. As per the Counsel Note, it appears that the Registrar
[Judicial] accepted the request for placing the matter before the Bench
consisting of A.B. Chaudhari and P.N. Deshmukh, JJ., and that is how
the entire matter came up before this Court on 24th July, 2015, when
the counsel for the parties agreed to address on the merits of the
Review Application itself, since the delay was only of 39 days and
would be condoned with the consent of the contesting parties. On
24th July, 2015, accordingly, the Review Application was heard. While
arguing the review for Zilla Parishad, Gondia for some time, Mr.
Kapgate contended that the judgment under review dated 27th
January, 2015 was liable to be reviewed because the original petitioner
- Ishwardas, who practised a fraud or committed forgery in obtaining
the employment as a Scheduled Tribe candidate, could not have been
given protection in service in accordance with the Full Bench Judgment
in the case of Arun Vishwanath Sonone Vs. State of Mah. &
others [2015 (1) Mh.L.J. 457]. On this, the Court pointed out to him
that upon perusal of the record of Writ Petition bearing No. 4184 of
2013, no such reply or pleadings were at all filed pleading fraud etc.,
when the Judgment and Order dated 27th January, 2015 was dictated
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in the open Court. Even the Caste Scrutiny Committee had not
recorded any finding of fraud or forgery in its order. In fact, the Writ
Petition was kept pending from 2013 awaiting the decision of the Full
Bench in the case of Arun Sonone Vs. State of Mah. & others [cited
supra]. Mr. Kapgate, counsel for the Zilla Parishad was also told that
time for compliance of the judgment had already expired after six
weeks from 27th January, 2015 and his client Zilla Parishad, Gondia,
did not even move for extension of time to implement the judgment
and it was over a period of six months that the Judgment of the High
Court was not complied with and, therefore, the counsel was asked to
instruct his client to comply with the Judgment first and then Review
Petition would be taken up for hearing. Taking a clue from what
transpired, Mr. Kapgate, learned counsel for the Review Applicants,
thereafter appears to have made an application to Hon'ble the Chief
Justice, stating therein that this Court pressurized him to comply with
the order of High Court and that, therefore, all his matters should not
be placed before the Bench presided over by A.B. Chaudhari, J. On
the next date, i.e., 31st July, 2015, the counsel for the review
applicants did not appear before the Court, and on the contrary, filed
the Pursis in the Review Application which was pointed out by the
Court Sheristedar. On 31st July, 2015, this Court, therefore, made an
order asking the counsel Mr. Kapgate to explain about his allegations
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against the Court, and also issued a notice to the Chief Executive
Officer, Zilla Parishad, Gondia, asking as to why action for aggravating
the contempt should not be taken, since Contempt Petition No. 129 of
2015 was already filed and was also placed before us.
It appears that Adv. Mr. A.Y. Kapgate is habitual in indulging
in such type of acrobatics. His wife [as stated by Adv., for the
petitioner in Criminal Writ Petition No. 501 of 2008 in her letter on the
address of Adv. Mr. A.Y. Kapgate enclosed with the Pursis filed by
Advocate on 7th February, 2014] addressed a letter to the Chief Justice
not to place the Criminal Writ Petition No. 501 of 2008 before the
Bench wherein Justice Shri B.R. Gavai is a Member. It appears that on
10th March, 2014, Justice Shri B.R. Gavai himself ordered not to place
the said Criminal Writ Petition no. 501 of 2008 before him. Adv. Mr.
A.Y. Kapgate must have thought that we would also do the same thing.
But we will not and, thus, proceed further.
05. The matter was adjourned to 7th August, 2015. On 06th
August, 2015, Mr. Kapgate, Adv., filed a Pursis Stamp No.8380/15,
stating as follows:-
"The counsel for the applicants is informing to this
Hon'ble Court that counsel will be unable to attend the
Court for two-three weeks in view of the fact that the
spouse of the counsel is admitted in the hospital and is
undergoing treatment for Cervical Radiculopathy
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following a car accident."
Looking to that Pursis, this Court adjourned the proceedings
to 11th August, 2015 for communicating the order dated 31st July,
2015 by FAX to the Chief Executive Officer, Zilla Parishad, Gondia. On
10th August, 2015, however, Mr. Kapgate, Adv., filed the Pursis St. No.
8542/15, stating that the Judgment and Order dated 27th January,
2015 was complied with and the petitioner Ishwardas joined the
service and that the Written Notes of Arguments filed by him should be
considered.
06. On 11th August, 2015, Mr. A. Parihar, the learned Standing
Counsel for the Zilla Parishad, Gondia, appeared with Dr. H.S.
Kalamkar, District Health Officer, Zilla Parishad, Gondia. Mr. Parihar,
upon instructions from Dr. H.S. Kalamkar, Distt. Health Officer, stated
that the Zilla Parishad has complied with the Judgment and Order
dated 27th January, 2015 and the employee has been reinstated and
all the formalities have been completed. Mr. Parihar invited our
attention to the Reinstatement Order dated 5th August, 2015 filed
along with Pursis St. No. 8379/15 dated 6th August, 2015. In view of
the compliance, Mr. Parihar, learned Standing Counsel for Zilla
Parishad, Gondia, was asked to argue the Review Application, since he
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appeared for Chief Executive Officer and District Health Officer, Zilla
Parishad, Gondia, as stated before us. Mr. Parihar submitted that he
does not agree with the bombastic confrontation made by Adv. Mr.
Kapgate, which was avoidable and unnecessary, because, according to
Mr. Parihar, the Judgment dated 27th January, 2015 was really required
to be complied with, since the case was fully covered by the Full Bench
decision of this Court in the case of Arun Sonone [cited supra]. It was
pointed out to him by us that the Review Applicant - Zilla Parishad had
not at all filed any reply rebutting the averments made in the Writ
Petition, nor the stand was taken in the Writ Petition No. 4184 of 2013
that the petitioner Ishwardas had practised any fraud or committed
any forgery. In the absence of any pleadings, it was difficult to
consider any such contentions, since the allegations of fraud and
forgery are the matters of facts. Mr. Parihar agreed that record does
not show any such stand being taken in answer to the writ petition,
obviously because no reply to the writ petition was at all filed by the
Zilla Parishad and hence it was wholly wrong to raise such a ground for
the first time in review. Mr. Parihar, then, upon taking instructions from
Dr. Kalamkar, Distt. Health Officer, submitted that after examining the
matter in consultation with him, the Zilla Parishad has come to a
correct conclusion that there was no point in pressing the Review
Petition in the absence of any rebuttal to the Writ Petition originally or
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even in reply to the Contempt Petition that was filed, about the issue
of fraud and forgery for the first time, all the more so because the
Judgment under review was in accordance with the Full Bench
Judgment of this Court regarding protection of service. He also
submitted that the Chief Executive Officer would like to accept the said
judgment as was ordered in several other cases by this Court. Mr.
Parihar clarified in fairness that the happenings in the instant case do
not give a good signal to one and all and, therefore, he would
completely disassociate from the inane shrill and tantrum made by the
Advocate Mr. Kapgate. We appreciate the stand taken by Mr. Parishar
in fairness, since he appears to have given the correct advice to his
client. Nevertheless, we have perused the Written Notes of Arguments
filed by Mr. Kapgate, Adv., and so also the reasons recorded in the
order of the Caste Scrutiny Committee. It must be said that the Caste
Scrutiny Committee in its entire order, that was the subject-matter of
Writ Petition No. 4184 of 2013, did not record a single finding that the
Petitioner Ishwardas had committed any fraud or forgery, as contended
by Mr. Kapgate, Adv. As per the provisions of the Act and as per the
practice of the Caste Scrutiny Committee, the Committee records a
categorical finding about fraud and forgery first and thereafter in such
cases, orders filing of FIR with the Police Station and prosecution
against the candidate. Even that is not to be found in the impugned
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order. Therefore, we cannot accept the contention raised by Mr.
Kapgate, Adv., that the Committee has come to any conclusion that
the petitioner Ishwardas had committed any fraud or forgery.
Independently also, Mr. Kapgate did not file any reply to the petition to
show any fraud or forgery by any other material, since allegations of
fraud and forgery are the matters of fact and by arguments, no fraud
or forgery can be established. After all, the charge of fraud and
forgery is serious one. Therefore, we find that the arguments regarding
fraud and forgery have been made in the Written Notes of Arguments
in most casual manner without any foundation of pleadings or affidavit
on record even in response to the Writ Petition Contempt Petition.
There is no factual data about fraud or forgery anywhere.
07. We, therefore, do not find any substance in the present
Review Application and the order to dismiss the same is inevitable.
08. We, however, were pained to see the allegations in the
application by way of shenanigans which have been made by Mr.
Kapgate to the Hon'ble the Chief Justice and we find from that
application that the only allegation is that asking him to instruct his
client to comply with the order of High Court was taken by him to be
the pressure exerted by the Bench. We do not approve of such a
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despicable conduct of the Advocate. But then, at the same time, we
also do not take any serious cognizance of his conduct and would like
to leave it for him to introspect.
09. With the above observations, we make the following order:-
ig ORDER
[a] Civil Application [CAO] No. 1168 of 2015 is disposed of.
[b] Misc. Civil Application St. No. 6997 of 2015 for review
is dismissed with no order as to costs. Notice is
discharged.
[c] Contempt Petition No. 129 of 2015 does not survive in
view of compliance of the Judgment and Order dated
27th January, 2015 passed in Writ Petition No. 4184 of
2013. Hence disposed of.
Judge. Judge
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