Gujarat High Court
State Of Gujarat vs Lalaram Sohanlal Yadav on 2 July, 2021
Bench: A. P. Thaker
C/LPA/557/2021 JUDGMENT DATED: 02/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 557 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 1602 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/LETTERS PATENT APPEAL NO. 557 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI Sd/-
and
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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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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STATE OF GUJARAT
Versus
LALARAM SOHANLAL YADAV
================================================================
Appearance:
MS VRUNDA SHAH, AGP (1) for the Appellant(s) No. 1,2,3
MR SAMIR GOHIL for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE DR. JUSTICE A. P. THAKER
Date : 02/07/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
C/LPA/557/2021 JUDGMENT DATED: 02/07/2021
1. This appeal is admitted. Mr.Samir Gohil, learned advocate
for the respondent waives service of notice of admission. With
the consent of the learned advocates appearing for the parties,
the matter is taken up for final hearing today.
2. Mr.Gohil has brought to our notice a judgment dated
7.5.2019 passed by coordinate Bench in Letters Patent Appeal
No.1076 of 2019 and allied matters and would submit that the
case is squarely covered by said decision. Facts of the present
case are similar to the facts of that case. We have also gone
through judgment dated 7.5.2019 passed in Letters Patent
Appeal No.1076 of 2019 and find that the issue involved in this
matter is covered by aforesaid decision.
3. This appeal arises out of oral judgment dated 25.02.2019
passed by the learned Single Judge in the Special Civil
Application No.1602 of 2017, by which the learned Single
Judge allowed the petition of the respondent herein and issued
the following directions:
"6. As a result, the petitioner is ordered to be treated as
voluntary retired in place of dismissal. The petitioner will be
treated to have retired from service accordingly and will be
entitled to pension and other pensionary benefits from such
date but he will not entitled for any arrears for the period
from the date of retirement till the date of present petition is
decided. However, it is clarified that the petitioner will be
entitled to full pension after the date of present order.
7. The petition stands allowed accordingly.
C/LPA/557/2021 JUDGMENT DATED: 02/07/2021
Rule is made absolute in the aforesaid terms."
4. The respondent, who was working in the State Reserve
Police Group No.12 was constrained to approach this Court
challenging his order of dismissal dated 27.2.2015. Such order
of dismissal was confirmed by the appellate order dated
7.8.2015 and revisional order dated 20.05.2016.
4.1 It was the case of the petitioner-respondent herein, that
he had been recruited and appointed in the year 1983 in the
S.R.P Group No.12 at Gandhinagar. On 31.7.2004, charge
sheet was issued to the respondent-original petitioner imputing
that, at the time of his appointment, he had produced 'Bogus
School Leaving Certificate'. On an inquiry being held, the
charge was found to be proved and the respondent was
dismissed from service by order dated 27.2.2015 and such
order is confirmed in appeal as well as revision. Therefore,
such order was challenged by the respondent-original
petitioner by filing Special Civil Application.
4.2 By judgment and order dated 25.02.2019, the learned
Single Judge has ordered that the respondent-original
petitioner be treated as voluntary retired in place of dismissal.
4.3 The original petitioner had relied upon order passed in 51
identical cases by learned Single Judge of this Court and one of
such Special Civil Application No.12372 of 2012, wherein vide
order dated 25.11.2016, learned Single Judge had been
pleased to allow the petition. Being aggrieved by the same, the
State Authorities have preferred Letters Patent Appeal No.730
of 2017. Division Bench of this Court in Letters Patent Appeal
C/LPA/557/2021 JUDGMENT DATED: 02/07/2021
No. 730 of 2017 and allied appeals, on consensus, by an order
dated 26.12.2017 remanded the matters to the learned Single
Judge for fresh hearing.
4.4 It is pursuant to such remand order, that the petitions
were heard afresh and the petitions were allowed vide order
dated 13.7.2018 by directing that the petitioners are ordered
to be treated as voluntarily retired in place of dismissal. Being
aggrieved by judgment passed in Special Civil Application
No.12372 of 2012 and allied matters, the State authorities
have preferred Letters Patent Appeal No.1076 of 2019 and
allied matters, wherein vide order dated 7.5.2019, Division
Bench of this Court has partly allowed the appeals preferred by
the State authorities.
4.5 It was the case of the petitioner-respondent herein that
he had been appointed in the State Reserve Police Force in the
year 1983 and after a period of almost more than 20 years, the
appellants herein sought to investigate into the genuineness of
their School Leaving Certificates, which he had specifically
handed over to the authorities at the time of his appointment.
4.6 It was further his case that at the time of recruitment, the
respondent - original petitioner had produced the original
School Leaving Certificates, and that the Certificates was lost
by the authorities. It was specifically the case of the
department itself from the memo dated 12.09.2000 that the
School Leaving Certificates were not available and that they
were lost by the authorities. In absence of the original
Certificates, it was therefore contended by the respondent -
original petitioner that it is for the employer to prove that the
C/LPA/557/2021 JUDGMENT DATED: 02/07/2021
certificate which the respondent-original petitioner had
produced was bogus.
4.7 In fact, a communication dated 27.12.2002 was placed on
record addressed by the Additional Director General of Police
(Arms) to the Additional Chief Secretary, (Home Department),
opining that in view of passage of more than 18 years since
the respondent was working and that he had been discharging
his duties with utmost sincerity, it was not possible to inquire
into such allegations.
4.8 Be that, as it may. The authorities proceeded with the
inquiry and passed the impugned order of dismissal from
service.
5. In the challenge to this order, in the first round, a detailed
scrutiny was made by the learned Single Judge and it will be in
the fitness of things to reproduce the specific findings of the
learned Single Judge which read as under:
"5. Having heard learned advocates for the respective
parties and having considered the material on record,
this Court finds that the very foundation of the
proceedings against the petitioner and many other
constables was some anonymous / pseudonymous
application to the effect that, the petitioner, at the time
of his appointment, had produced ingenuine school
leaving certificate to show wrong date of birth and
educational qualification. Such proceeding was initiated
against about 140 Armed Constables. About 1600
Constables were recruited in different Groups in the
C/LPA/557/2021 JUDGMENT DATED: 02/07/2021
year 1982- 83 and most of them were from other States.
This issue is raised only in Group XII. It is not in dispute
that the administration of this Group states that, they
have lost the copies of the certificates which were
produced in the year 1983 and which were part of
service record. On one hand, these certificates are
claimed to have been lost by the Employer and
coincidently, at that very moment, an anonymous
application is received by the Employer that let these
certificates be again asked from the concerned
Constables. Be it noted that, the persons being dealt
with are Armed Police Constables, they have left their
home State before decades. There is no complaint about
their working as Police Constable for all these years and
the requirement of educational qualification, etc., was
such that it is very difficult to expect them to have their
certificates even after decades with them. Had these set
of employees been from some higher cadre, the
standard could be different. However the Armed Forces
should have been dealt with in more dignified manner
by the State which it has not. The results may be
serious, even disastrous. Recruitment of these
Constables was the need of the hour at the relevant
time. The Appointing Authority had verified the
certificates and had satisfied his own self at the relevant
time. The popping up of the issue like this after
decades, that too in mysterious circumstances, needs to
be seen with more caution. This Court finds that, this is
not the case of withdrawal of appointment, but dismissal
on the ground of misconduct. It was for the Disciplinary
Authority to prove which misconduct is committed by
C/LPA/557/2021 JUDGMENT DATED: 02/07/2021
the concerned Constable. Non-production of certificates
as asked for by the Disciplinary Authority since the
office has lost it, is no misconduct on the part of the
concerned employee. Further, it is the Constable, who is
being dealt with by the State - that aspect also needs to
be kept in view. Further, this is not in isolation, but in
more than hundred cases. Further, this is done after
about 30 years of service of the persons like the
petitioner. In totality, the action of the respondents of
ordering dismissal of the petitioner and thereby ordering
economical death of his entire family can not be allowed
to stand and the same needs to be quashed and set
aside. This Court further finds substantial force in the
submission of learned senior advocate for the petitioner
that, delay has operated to the detriment of the
petitioner and in the facts of this case, it can be said
that there is violation of principles of natural justice. It
also needs to be noted that, even in the earlier round of
litigation, this Court had directed the State Authorities to
handle the issue with due compassion and care, which
the Authorities have completely overlooked. This would
further show lack of bona fide on the part of the
Authorities that, any how this group of persons were
decided to be driven out from employment. It is noted
that, the date of joining and date of dismissal of the
petitioner would give very shocking conclusion. It is
noted that, the petitioner was appointed on 01.02.1983
and his dismissal is 10.12.2010. It is this long span of his
service, which needs to be protected and the State
cannot be permitted to be so thankless to the petitioner,
for the sin which he has not committed. This petition is
C/LPA/557/2021 JUDGMENT DATED: 02/07/2021
therefore required to be allowed with all consequential
benefits. It is noted that, the cut-off date of revision of
pay of all the employees of the State of Gujarat has
gone in between, which was 01.01.2016. Therefore it
also needs to be directed that the pay of the petitioner
shall also be revised, treating him to be in continuous
service, so that he is not dragged into litigation on that
count."
6. In other words, the learned Single Judge in the first round,
on merits found that once the Certificates was produced by the
respondent - original petitioner in the year 1983, non-
production of the Certificate by the respondent-original
petitioner after more than 20 years of service was "mysterious
circumstances". The learned Single Judge also held that there
was violation of principles of natural justice.
7. Ms.Vrunda Shah, learned Assistant Government Pleader
appearing for the appellants, has submitted that on remand
and reconsideration, the learned Single Judge by the impugned
oral judgment has, without appreciating the fact that the
certificate was found to be bogus after a detailed scrutiny, has
quashed and set aside the order of dismissal only on the
ground that they were employees who had come to the State
of Gujarat from Uttar Pradesh and Bihar, and therefore, they
were not to be blamed if the certificates were lost.
7.1 Ms.Shah submitted that departmental proceedings were
held. In the inquiry proceedings, it was categorically pointed
out that the officers of the department personally went to the
schools, verified their record and the statement of the school
C/LPA/557/2021 JUDGMENT DATED: 02/07/2021
authorities was taken. It was an admitted fact that the
certificate produced by the respondent was forged certificate
and it was therefore in that context that the Inquiry Officer
found the certificate to be bogus and the impugned order of
dismissal followed. The order was confirmed in appeal and in
revision, and therefore, there was no reason for the learned
Single Judge to set aside such dismissal.
8. Mr.Gohil, learned counsel for the respondent, supported
the findings arrived at by the learned Single Judge. Strong
reliance was placed on the judgment of the learned Single
Judge in the first round, especially on paragraph 5 of the
judgment. He further submitted that the respondent had
rendered 20 years of service and had a spotless record, except
for the present charge sheet. By the time the order of
dismissal was passed, he was on the verge of retirement. It
was in this context that the learned Single Judge passed the
order and the directions were issued placing the equities so as
not to cause financial hardship to the State.
9. Having considered the submissions of the learned
counsel for the respective parties, what needs to be
appreciated is that:
(A) The respondent was appointed in the State Reserve Police
Force as early as in the year 1982-83.
(B) At no point of time was there a whisper or a suspicion
about the genuineness of the School Leaving Certificates that
the respondent - original petitioner had produced before the
appointing authority.
(C) In fact, a clear and categorical opinion was rendered by the
C/LPA/557/2021 JUDGMENT DATED: 02/07/2021
Addl. Director General of Police in the year 2010 that it will be
futile to impose any penalty on the respondent in view of the
long tenure of service having undergone.
(D) It was a specific and clear case where in fact, the employer
State to whom the Certificates were handed over to was not in
possession of the original service record. It was, therefore, a
situation where an employee was asked to prove the
genuineness of the Certificate which in fact was handed over
to the employer and who had lost the service record.
(E) Apparent violation of principles of natural justice was
evident on reading the Inquiry Officer's Report, as is evident
from the directions issued by the learned Single Judge. In fact,
no departmental proceedings were held and only statements
of the Principals were recorded without following the principles
of natural justice. This even cannot be called to be a
departmental proceeding as sought to be made out.
10. The upshot of all these is that the appellants sought to
resurrect an issue after a period of more than 20 years after
the respondent was appointed. The very function of the
proceedings was an anonymous application. It is a fact that the
employer-State was not in possession of the original
certificate, which the applicant/respondent had handed over to
the employer and the administration lost the copy of such
certificate which was part of the service record in the year
1983. It is a sheer coincidence that such certificate is claimed
to have been lost by the employer and at the very moment an
anonymous application is received.
11. The employee had to approach this Court in the third
round of litigation and what the learned Single Judge has done
C/LPA/557/2021 JUDGMENT DATED: 02/07/2021
is limited the relief in exercise of powers under Article 226 of
the Constitution of India.
12. Even otherwise, the records of service of the respondent
- original petitioner has been unblemished. The employer
confronted the petitioner with the statement of the school
principal qua his record. The school authorities' statements
were recorded which said that the document was forged.
Therefore, looking to the passage of time and the fact that
Mr.Gohil, learned counsel for the respondent concedes that he
is willing to restrict the further relief and concede that the
respondent - original petitioner be entitled to pension at 50%
of the receivable amount and that too not from the date of
dismissal but from the date of the judgment of the learned
Single Judge i.e. from 25.02.2019 or the date of
superannuation of the respondent whichever is later, the
directions issued in the oral judgment under challenge are
modified as under:
13. The appeal is partly allowed. The respondent-original
petitioner will be treated to have voluntarily retired from
service from the date of the order of dismissal. He will be
entitled to pension at 50% of the receivable amount. Such
amount of pension @ 50% of the receivable amount shall be
payable to the respondent from the date of the judgment of
the learned Single Judge i.e. 25.02.2019 or the date of his
superannuation, whichever is later. The other pensionary
benefits shall also be payable to the respondent, accordingly.
However, the respondent shall not be entitled to be paid any
arrears for the aforementioned period i.e. from the date of his
dismissal (now considered as voluntary retirement) till the date
C/LPA/557/2021 JUDGMENT DATED: 02/07/2021
of decision of this Court or his respective date of
superannuation, whichever is later.
14. In view of above, Civil Application (For Stay) is also
disposed of.
Sd/-
(A.J.DESAI, J)
Sd/-
(DR. A. P. THAKER, J)
R.S. MALEK
