Gujarat State Road Transport ... vs Majidbhai Mahmadbhai Kureshi
2021 Latest Caselaw 10050 Guj

     C/SCA/177/2009                              JUDGMENT DATED: 30/07/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 177 of 2009


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE DR. JUSTICE A. P. THAKER

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1    Whether Reporters of Local Papers may be allowed                  No
     to see the judgment ?

2    To be referred to the Reporter or not ?                           No

3    Whether their Lordships wish to see the fair copy                 No
     of the judgment ?

4    Whether this case involves a substantial question                 No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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            GUJARAT STATE ROAD TRANSPORT CORPORATION
                              Versus
                  MAJIDBHAI MAHMADBHAI KURESHI
================================================================
Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR.MRUDUL M BAROT(3750) for the Respondent(s) No. 1
================================================================

    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 30/07/2021

                            ORAL JUDGMENT

1. The petitioner has filed the present petition under Articles

14, 226 and 227 of the Constitution of India for the following

prayers:-

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A. Admit the present Special Civil Application.

B. Allow the present Special Civil Application by way of issuing appropriate writ of mandamus or writ of certiorari or any other writ, direction or order quashing and setting aside the award dated 11.08.2008 passed by the Hon'ble Industrial Tribunal at Ahmedabad in Approval Application (IT) No.330/06 in Reference (IT) No.37/2000 annexed as ANNEXURE-J by way of holding that the same is illegal, unjust, arbitrary, erroneous and contrary to the facts and evidence on record as well as the provisions of the Industrial Disputes Act, 1947 and without jurisdiction in the interest of justice.

C. Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to stay the implementation, execution and operation of the award dated 11.08.2008 passed by the Hon'ble Industrial Tribunal at Ahmedabad in Approval Application (IT) No.330/06 in Reference (IT) No.37/2000 annexed as ANNEXURE-J in the interest of justice.

D. Call for the record and proceeding of the case bearing Approval Application (IT) No.330/06 in Reference (IT) No.37/2000 from the Hon'ble Industrial Tribunal at Ahmedabad by way of passing appropriate orders in the interest of justice.

E. Pass such order and further orders as the nature and circumstances of the case may require, in the interest of justice.

2. Brief facts of the present case is that the petitioner -

Gujarat State Road Transport Corporation had employed one

Mr.Mahmadbhai Kureshi, in its employment and was serving as

regular employee, who passed away while in service. Pursuant to

death of Mr.Mahmadbhai Kureshi, the respondent herein, who

was his son, was appointed on compassionate ground as a

Helper with the School Leaving Certificate that he had cleared

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Standard 8th. It is contended that on the basis of the said

certificate and other papers, the respondent was appointed on

temporary, adhoc and daily wage basis as Helper and he was not

employed as a permanent and regular employee on a permanent

sanctioned post. It is further contended that it came to the notice

of the management of the petitioner that the respondent has

produced a bogus School Leaving Certificate, therefore, his

statement was recorded on 17.05.2005, wherein, he has

admitted that the said certificate dated 06.07.1998 was bogus. It

is also contended by the petitioner that thereafter it has

forwarded the same to the higher authority and as per the school

record, the said certificate was bogus one and, thereafter, the

Principal of the school addressed a letter to the petitioner that

the date of certificate was wrongly mentioned as 20.06.2006

instead of 20.06.2005 admitting that the certificate was bogus

and the respondent was in a Municipal School, at Bhavnagar and

has left the school while he was in Standard 6 th. According to the

petitioner, the charge-sheet was issued by the competent

authority on 17.11.2005 and, thereafter, full-fledged

departmental inquiry was held against the respondent and he

was given full opportunity to represent his case and ultimately,

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the charge came to be proved. It is further contended that

thereafter, the show-cause notice was issued on 22.06.2006 to

the respondent on the quantum of penalty along with the report

of the Inquiry Officer.

2.1 It is contended by the petitioner that the respondent herein

has written a letter on 27.06.2006 and, thereafter, he was

dismissed from the employment as he was working as Helper

vide order dated 29.07.2006 and on the same day, the requisite

amount of Rs.4885/- was paid to him and Approval Application

(I.T.) No.330 of 2006 was preferred before the Tribunal under

Section 33 of the Industrial Disputes Act, 1947 (hereinafter be

referred to as the "I.D. Act").

2.2 It is contended by the petitioner that the said application

came to be rejected by the Tribunal without taking into

consideration the facts that the respondent was a daily wager

and he was neither regular nor permanent employee and,

therefore, it was not necessary to hold full-fledged departmental

inquiry. It is contended that the Tribunal ought to have

considered the fact that in the present case, the full-fledged

inquiry was conducted and opportunity of being heared was

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provided to the respondent to defend his case. It is contended by

the petitioner that the Tribunal has not considered the facts that

the respondent has tried to get an employment by producing

bogus school leaving certificate. According to the petitioner, the

production of the bogus School Leaving Certificate itself is

misconduct and the management has properly dismissed the

respondent from the employment. It is also contended that the

Tribunal has not properly considered the provisions of Section 33

of the I.D. Act and has committed serious error of facts and law

in rejecting the application. The petitioner has prayed to allow

the present petition by quashing and setting aside the impugned

award and to allow the approval application filed by the

petitioner.

3. Heard Mr.H. S. Munshaw, learned counsel for the petitioner

and Mr.Mrudul Barot, learned counsel for the respondent

through video conferencing.

4. Mr.H. S. Munshaw, learned counsel for the petitioner has

vehemently submitted the same facts which are narrated in the

memo of petition. He has submitted that the entire case is based

on the bogus certificate produced by the respondent herein. He

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has submitted that the nature of the service of the respondent is

purely ad-hoc, temporary and daily wager and not of permanent

in nature. He has submitted that the respondent has admitted in

his statement that the School Leaving Certificate which he has

produced is bogus one. He has also referred to the various

documents including the charge-sheet and show-cause notice

and the report of the Inquiry Officer and the contents of the

approval application and has submitted that all these facts have

not been properly appreciated by the Tribunal. According to him,

when the respondent was daily wager, as admitted by him, there

is no question of holding full-fledged departmental inquiry.

According to him, in case of appointment of the person on daily

wager, there is no necessity of holding any departmental inquiry,

when the allegation is based on the bogus School Leaving

Certificate, which is primary document for getting service. He

has submitted that the respondent has also accepted the facts

that he did not study in the school from which the School Leaving

Certificate is produced, then, in that case there was no need of

any departmental inquiry and on his admission, the petitioner

might have dismissed him from the services straightway.

According to him, the petitioner has given him an ample

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opportunity of being heard in departmental inquiry and,

therefore, the Tribunal ought to have granted permission and

allowed the approval application. He has submitted that the

departmental inquiry officer has no played duel role and no

procedure of natural justice is defected in such inquiry.

According to him, the appointment based upon bogus certificate

itself is serious and it vitiated the appointment itself. He has

submitted that the reporting officer has not interrogated the

workman and departmental inquiry officer has submitted various

reports. He has submitted that the impugned award of the

Tribunal is erroneous one and it requires to be interfered with.

He prayed to quash and set aside the impugned award and allow

the present petition.

5. Per contra, Mr.Mrudul Barot, learned counsel for the

respondent has submitted that the Tribunal has not committed

any serious error of facts and law in rejecting the approval

application as there was breach of statutory rules in the

departmental inquiry itself. While referring to the various

observations made by the Tribunal, he has submitted that the

submissions made on behalf of the learned counsel for the

petitioner are not tenable in the eyes of law and no proper

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opportunity of being heard is given to the respondent. He has

submitted that the impugned award cannot be branded as

perverse one. He has submitted that the main reference itself is

pending and non-granting of approval application will not affect

the petitioner in any manner. He has submitted that the original

reference can be proceeded further and, therefore, the present

petition may be dismissed.

5.1 Mr.Barot, learned counsel for the respondent has relied

upon the following decisions;

(1) Amymiyan Permian Kadri Vs. Gujarat State Road

Transport Corporation and others, 1992 (2) GLH 21;

(2) Gujarat State Road Transport Corporation Vs. Kantilal

Nandlal Dave and others, 1992 (1) GLH 463;

6. In the case of Amymiyan Permian Kadri, (supra), this

Court (Coram: Hon'ble Mr.Justice A. N. Divecha) has observed in

paras-14, 15 and 16 as under:-

"14. It transpires from the record of the enquiry proceedings that the delinquent did not volunteer to give any oral testimony in the enquiry proceedings. It may be mentioned at this stage that he had no one as his defence assistant in the enquiry proceedings. If at all the delinquent wanted to give any oral testimony, his chief examination

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could have been recorded by himself. The so-called statement of the delinquent at Exh.22 shows that no chief examination of his is taken. What is mentioned therein that the delinquent was questioned by the Enquiry Officer. It would mean that the delinquent was required to give answers to the questions put to him by the Enquiry Officer. This makes one thing clear that the so-called statement at Exh. 22 can by no stretch of imagination be said to be his oral testimony in the enquiry proceedings.

15. The question then arises whether or not the Enquiry Officer could have recorded his explanatory statement in the manner it is recorded by the Criminal Court under Section 313 of the Criminal Procedure Code, 1973 on completion of the recording of the prosecution evidence. As aforesaid, the only provision made in that regard is in Clause (k) of Para 5 of the Appeal Procedure. Thereunder, the Enquiry Officer is invested with the limited power of giving a further opportunity to the delinquent of making a written or oral statement if desired by him. It would mean that, after completion of recording the evidence, the Enquiry Officer has to ascertain from the delinquent whether or not he has to say anything more with respect to the material on record. If the delinquent so desires, the option is given to him to make an oral or written statement in that regard. It thus becomes clear that such statement to be given by the delinquent after completion of the recording of the evidence should be out of his violation. It is not open to the Enquiry Officer to compel him to give any such statement. If the Enquiry Officer does so, even if be in the nature of seeking explanation of the delinquent with respect to the material on record pointing the finger of guilt against the delinquent, the Enquiry Officer can be said to be transgressing his limits laid down in Clause (k) of Para 5 of the Appeal Procedure.

16. ......If the Enquiry Officer cross-examines the delinquent under the guise of recording his statement (which it would not be open to him to do under the Appeal Procedure), he dons the robe of the prosecutor while keeping the robe of the judge on his shoulder. It is a settled principle of law that no person can be both a prosecutor and a judge. If a person tries to be both, he can be said to be biased in conducting the enquiry proceedings. It is a well-known principle of law that a biased person is disqualified from conducting such enquiry proceedings. That is a settled principle of natural justice."

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7. In the case of Gujarat State Road Transport

Corporation Vs. Kantilal Nandlal (supra), para-16 of the case

of Amymiyan Permian Kadri has been followed. This Court in

para-17 has observed that any decision or order based on any

illegal and invalid proceedings has to be branded null and void.

7.1 Further, this Court has observed in paras-18 and 19 as

under:-

"18. It cannot be gainsaid that the Corporation is a 'State' within the meaning of Article 12 of the Constitution of India. This point has been concluded by this Court in its Division Bench ruling in the case of Amarsing Satansing Medatia v. Gujarat State Road Transport Corporation and Others 21 G.L.R. at page 500. The employee of the Corporation partaking the character of State for the purpose of Article 12 of the Constitution of India cannot be removed just at the sweet will of the appointing or the disciplinary authority. They in that sense enjoy the status of irremovability like government servants enjoying protection under Article 311 of the Constitution of India or workmen under the relevant industrial or labour legislation. If any disciplinary action contrary to law is taken against any such employee of such Corporation, he can successfully challenge such action in a court of law exercising civil jurisdiction under Section 9 of the Code.

19. This point is concluded by the Division Bench ruling of this Court in its ruling in the case of Mohanlal Popatbhai Patel v. The Gujarat State Road Transport Corporation and Another reported in 1977 (1) Services Law Reporter at page 30. It has been held therein:

"If an order of dismissal is passed by the respondent - Corporation in violation of principles of natural justice or in contravention of the relevant regulations [@ page 470] framed by the Corporation in this behalf, such an order can be declared as null and void and the Court can grant a declaration that the employee concerned continues in service."

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8. Having considered the contentions raised by learned

counsel for both the sides coupled with the aforesaid decisions

cited at the Bar and the materials placed on record, it is an

admitted facts that the petitioner has appointed the respondent

on compassionate ground as Helper. It is also an admitted facts

that the reference is pending before the Tribunal being

Reference (I.T.) No.37 of 2000. It is also an admitted facts that

during the pendency of that reference, the order of dismissal has

been passed by the petitioner and the petition has filed under

the provisions of Section 33 of the I.D. Act for approval of

dismissal of the respondent. The petitioner has heavily relied

upon the entire departmental inquiry initiated against the

respondent for producing false School Leaving Certificate at the

time of his appointment.

9. On perusal of the impugned award passed in Approval

Application No.330 of 2006 in Reference (I.T.) No.37 of 2000, it

appears that the respondent has filed objection against the

approval application and has contended that he was appointed

on the permanent basis and he has served from 08.09.2003 till

29.07.2006 continuously and has served for 240 days in every

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calendar year. It is also contended by the respondent that the

petitioner has issued charge-sheet on 07.12.2005 against him on

false grounds and allegation. It appears that the respondent has

also raised the contention that the departmental inquiry itself

was illegal and the impugned award is also illegal.

10. It appears from the record that the petitioner has relied

upon the report of the departmental inquiry as well as the

charge-sheet and the notice issued thereof and payment of

notice pay, whereas, the respondent has produced various

documentary evidence on record. During the hearing of the

approval application, the respondent has defended the same. It

appears from the records that during the departmental inquiry,

the same person has acted as prosecutor who himself has

initiated the entire departmental inquiry. It also appears that the

entire inquiry has been conducted by the same officer, who has

initiated the inquiry and has issued the charge-sheet and has

also carried out the cross-examination.

11. It appears that on the basis of the materials placed on

record, the Tribunal has observed that no any representating

officer has been appointed in the departmental inquiry. It has

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further observed by the Tribunal that considering the materials

placed on record, the Inquiry Officer himself has asked the

question to the respondent and instead of asking the respondent

as to whether he wanted to give any statement or not, the

Inquiry Officer has asked him direct question and recorded the

statement thereof. While referring to Rule 5 of the Corporation

regarding the disciplinary appeal procedure, the Tribunal has

observed that in the present case, the Inquiry Officer himself has

acted as a prosecutor and judge and, therefore, there is clear

breach of principles of natural justice. It is further observed by

the Tribunal that the entire exercise carried out by the petitioner

and resultantly passing of the impugned order of dismissal is

also required to be proved under Section 33(2)(b) of the I.D. Act.

On this observation, the petition can be dismissed.

12. Now, considering the observations made by this Court in

the case of Amymiyan Permian Kadri (supra) and Kantilal Nandlal

Dave (supra), when the same person acted as the prosecutor

and the judge, then, it is clear breach of principles of natural

justice and the inquiry itself would be nullity. On perusal of the

record, it clearly transpires that in the present case, from the

very beginning i.e. issuance of the show-cause notice, filing of

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the charge-sheet, holding of the departmental inquiry, filing of

the report and passing of the order of dismissal, all these

procedure have carried out by the one and same person. This

very fact is sufficient to hold that the entire inquiry proceeding is

nullity from the very beginning. Therefore, considering the

decisions cited at the Bar, it appears that Tribunal has not

committed any error of facts and law in rejecting the approval

application. Therefore, the impugned award of the Tribunal is

sustainable in the eyes of law.

13. In view of the above, the petition is liable to be dismissed

and accordingly, it is dismissed. The impugned award dated

11.08.2008 passed by the Labour Court, Ahmedabad in Approval

Application (I.T.) No.330 of 2006 in Reference (I.T.) No.37 of 2000

is hereby confirmed.

14. Rule is discharged. Interim relief, if any, stands vacated

forthwith. No order as to costs.

Sd/-

(DR. A. P. THAKER, J) V.R. PANCHAL