Gujarat High Court
Gujarat Housing Board vs Bhartendu Madhusadan Upadhyay on 6 July, 2021
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/LPA/1925/2017 JUDGMENT DATED: 06/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1925 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 4202 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUJARAT HOUSING BOARD
Versus
BHARTENDU MADHUSADAN UPADHYAY & 1 other(s)
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Appearance:
MR YN RAVANI(718) for the Appellant(s) No. 1
MR CHINTAN DAVE, AGP for the Respondent(s) No. 2
MR VAIBHAV A VYAS(2896) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 06/07/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
C/LPA/1925/2017 JUDGMENT DATED: 06/07/2021
1. This appeal under Clause 15 of the Letters Patent is at
the instance of the Gujarat Housing Board (original respondent
no.2 - herein after referred to as the 'appellant-Board') and is
directed against the order passed by a learned Single Judge of
this Court dated 04.05.2017 in the Special Civil Application
No.4202 of 2014 by which the learned Single Judge allowed
the writ application filed by the original writ applicant
(respondent no.1 herein) and thereby quashed and set aside the
report of the Inquiry Officer dated 07.11.2011 along with the
impugned order of punishment dated 21.08.2013 with a
direction that the original writ applicant (respondent no.1
herein) be treated to be in service till the date of his
retirement and he shall be entitled to all the consequential
benefits except the arrears of pay for the period from
22.08.2013 to 31.01.2014.
2. The facts giving rise to this appeal may be summarized
as under:
2.1 The respondent no.1 joined the service of the appellant-
Board as the Additional Assistant Engineer on 17.08.1982. The
respondent no.1 was assigned the additional charge of the post
of Deputy Executive Engineer for a period between 14.10.2008
& 31.07.2009. The respondent no.1 was to retire from service
on 31.01.2014 on attaining the age of superannuation.
2.2 The respondent no.1, while holding the additional charge
C/LPA/1925/2017 JUDGMENT DATED: 06/07/2021
of the post of Deputy Executive Engineer, Housing Division,
Gujarat Housing Board was placed under suspension vide order
dated 31.01.2009 on the ground that there was some
unauthorized occupation/construction in the housing colony
constructed by the appellant-Board.
2.3 A show cause notice came to be issued by the appellant-
Board dated 07.02.2009. The respondent no.1 submitted a
detailed reply to the said show cause notice. Thereafter,
chargesheet was issued by the appellant-Board on 02.09.2009.
In response to the departmental chargesheet, the respondent
no.1 submitted his written submissions. The appellant-Board
initiated inquiry against the respondent no.1 by appointing an
Inquiry Officer. The inquiry officer on conclusion of the
inquiry, submitted a report and found the respondent no.1
guilty of the charge alleged against him. The appellant-Board
issued second show cause notice dated 19.11.2011. The
respondent no.1 replied to the said show cause notice on
16.01.2012.
2.4 The appellant-board passed the impugned order of
punishment dated 21.08.2013, whereby the respondent no.1
was ordered to be removed from the service. The respondent
no.1 preferred an appeal before the Appellate Authority which
came to be dismissed on 31.01.2014.
C/LPA/1925/2017 JUDGMENT DATED: 06/07/2021
2.5 Being aggrieved and dissatisfied with the order passed by
the appellate authority, the respondent no.1 preferred the
Special Civil Application No.4202 of 2014 before this Court
whereby the learned Single Judge vide order dated 04.05.2017,
allowed the writ application of the respondent no.1 and
quashed and set aside the report of the Inquiry Officer dated
07.11.2011 along with the impugned order of punishment
dated 21.08.2013.
2.6 Being aggrieved by the order passed by the learned
Single Judge dated 04.05.2017 in the Special Civil Application
No.4202 of 2014, the appellant - Board has preferred the
present appeal.
3. We have heard Mr. Y.N. Ravani, the learned counsel
appearing for the appellant - Board, Mr. Vaibhav Vyas, the
learned counsel appearing for the respondent no.1-original writ
applicant and Mr. Chintan Dave, the learned AGP appearing
for the respondent no.2-State of Gujarat.
4. Submissions on behalf of the appellant-Board :
4.1 Mr. Ravani, the learned counsel for the appellant
submitted that the respondent no.1 was in charge of the
Vasantnagar Colony Project, Gota, Ahmedabad and was to take
care of the interest of the appellant-Board qua the vacant
C/LPA/1925/2017 JUDGMENT DATED: 06/07/2021
property at the Vasantnagar Colony. It was submitted that a
High Level Committee submitted a report dated 30.01.2009
pointing out several irregularities including unauthorized
occupation in 144 residential units. Further, 14 residential units
of the said colony were found locked while 18 other residential
units were found to be occupied by tenants and 61 residential
unit holders had put up unauthorized construction of Shops,
Compound Walls etc. It is submitted that a full fledge
departmental inquiry was conducted before passing the
impugned order of removal dated 21.08.2013. The appellate
authority also dismissed the appeal filed by the respondent
no.1 after considering the charges levelled against the
respondent and the other materials on record. It was submitted
that both the authorities have considered the defence raised by
the respondent no.1 based on the materials placed on record
and the deposition of the witnesses the impugned order of
removal was passed.
4.2 It is submitted that after the departmental inquiry, the
respondent no.1 was removed from the service of the
appellant-Board in accordance with the Rule 6 of the Gujarat
Civil Services Rule, 1979 duly adopted by the Gujarat Housing
Board. It was therefore, submitted that the impugned order
passed by the learned Single Judge is required to be interfered
with and the same be set aside.
C/LPA/1925/2017 JUDGMENT DATED: 06/07/2021
5. Submissions on behalf of the respondent no.1 :-
5.1 Mr. Vaibhav Vyas, the learned counsel appearing for the
respondent no.1 submitted that his client before being removed
from service was in the employment of the appellant-Board
past 32 years with an unblemished service record. It was also
submitted that the respondent no.1 replied to the appellant-
Board qua the contents of the chargesheet, Inquiry report, and
the punishment order. It was submitted that the respondent
no.1 was victimized.
5.2 Mr. Vyas, the learned counsel appearing for the
respondent No.1 would submit that no error not to speak of
any error of law could be said to have been committed by the
learned Single Judge in passing the impugned order. He would
submit that there is no jurisdictional error or any material
infirmity in the impugned order warranting interference at the
end of this Court in the present appeal.
5.3 In such circumstances referred to above, Mr. Vyas prays
that there being no merit in the present appeal, the same be
dismissed.
5.4 Mr. Vyas, has relied upon the following case law;
(a) Director General of Police & Others vs. G. Dasayan
reported in 1998 (2)SCC 407;
(b) Pawan Kumar Agarwala v. General Manager-II &
C/LPA/1925/2017 JUDGMENT DATED: 06/07/2021
Appointing Authority State Bank of India & Ors. reported
in 2015 (15)SCC 184;
(c) Daya Ram v. Raghunath & Ors. reported in 2007 (11)SCC
241;
(d) Assistant Commissioner, Commercial Tax Department,
Works Contract & Leasing, Kots v. M/s. Shukla &
Brothers reported in 2010 (4)SCC 785.
6. It appears that the learned Single Judge took notice of
the following :-
(a) The respondent no.1 joined the service of the
appellant Board on 17.08.1982 and had
unblemished service record of more than 32 years.
The respondent no.1 was due to retire within six
months i.e. on 31.01.2014.
(b) The respondent no.1 was assigned the additional
charge of the post of Deputy Executive Engineer for
the period between 04.10.2008 & 31.07.2009 only.
(c) The preliminary inquiry revealed involvement of 19
officers including the respondent no.1. The persons
senior and junior to the respondent no.1 were also
named. No proceedings were initiated against the
other 18 officers except the respondent no.1.
(d) The respondent no.1 held the additional charge of
Deputy Executive Engineer for a very short period
C/LPA/1925/2017 JUDGMENT DATED: 06/07/2021
and qua him the punishment of removal from
service came to be imposed. The learned Single
Judge found the case to be one of victimization.
(e) The learned Single Judge held that the case is one
of no evidence.
(f) No independent witnesses were examined.
(g) the report of the High Level Committee, which was
supplied along with the show cause notice, do not bear
the signatures of the Committee members and has also
not been certified by any Officer.
(h) the Inquiry report does not state during whose tenure
the alleged irregularities were committed.
(i) No panchnamas or rojkams were drawn at the time of
the preliminary inquiry and no statement of any persons
were recorded.
(j) the preliminary inquiry was conducted by the High Level
Committee of the Gujarat Houding Board. The report of
the preliminary inquiry dated 31.01.2009 includes list of
19 employees/officers who were holding the charge with
respect to the 640 LIG (Lower Income Group) scheme.
The responsibility of various officers/employees were
C/LPA/1925/2017 JUDGMENT DATED: 06/07/2021
specifically stated in the report and it was recommended
that disciplinary proceedings be initiated against them.
(k) From the report, it was evident that the respondent no.1
was not the only person responsible for the alleged
misconduct.
(l) On the basis of the said preliminary inquiry report, the
disciplinary proceedings were initiated against in all 19
employees/officers, including 3 Executive Engineers, 2
Deputy Executive Engineers, Estate Manager and Rent
Collector.
(m) Out of the 19 employees/officers, who were facing
similar charges/allegations, except the petitioner, 18
employees/officers came to be exonerated.
The respondent no.1 was singled out and gross
discriminatory treatment was meted out against him.
7. Mr. Ravani, the learned counsel appearing for the
appellant-Board has not been able to dislodge any of the
aforesaid findings recorded by the learned Single Judge. Mr.
Ravani has not been able to point out any perversity or any
material infirmity in the findings recorded by the learned
Single Judge referred to above. In such circumstances, we see
no good reason to disturb such findings of fact recorded by the
learned Single Judge after due consideration of the materials
C/LPA/1925/2017 JUDGMENT DATED: 06/07/2021
on record.
8. This Court under Clause 15 of the Letters Patent while
dealing with the present appeal should bear in mind that a
intra Court appeal is really not a statutory appeal preferred
against the judgment and order of an inferior to the superior
Court. The appeal inter se in a High Court from one Court to
another is really an appeal from one Coordinate Bench to
another Coordinate Bench and it is for this reason that a writ
cannot be issued by one Bench of the High Court to another
Bench of the High Court nor can even the Supreme Court issue
writ to a High Court. Thus, unlike an appeal, in general, an
intra Court appeal is an appeal on principle and that is why,
unlike an appeal, in an ordinary sense, such as a criminal
appeal, where the whole evidence on record is examined
afresh by the appellate Court, what is really examined, in an
intra Court appeal, is the legality and validity of the Judgment
and/or Order of the Single Judge and it can be set aside or
should be set aside only when there is a patent error on the
face of the record or the judgment is against the established or
settled principle of law. If two views are possible and a view,
which is reasonable and logical, has been adopted by a Single
Judge, the other view, howsoever appealing such a view may
be to the Division Bench, it is the view adopted by the Single
Judge, which should, normally, be allowed to prevail. Hence,
the impugned judgment of the learned Single Judge should not
be completely ignored and this Court has to consider the
C/LPA/1925/2017 JUDGMENT DATED: 06/07/2021
judgment and order in its proper perspective and if this Bench,
sitting as an appellate Bench, is of the view that the decision
has been arrived at by the learned Single Judge without any
material error of fact or law, then, the judgment, in question,
should be allowed to prevail.
9. In the result, this appeal fails and is hereby dismissed.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
