Mitulbhai Kanaiyalal ... vs Saurashtra University
2021 Latest Caselaw 6005 Guj

       C/LPA/879/2020                              ORDER DATED: 15/06/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 879 of 2020

            In R/SPECIAL CIVIL APPLICATION NO. 22102 of 2019

                                 With
         CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
               In R/LETTERS PATENT APPEAL NO. 879 of 2020
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                   MITULBHAI KANAIYALAL CHANDIBHAMAR
                                  Versus
                         SAURASHTRA UNIVERSITY
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Appearance:
MR ANAND B GOGIA(5849) for the Appellant(s) No. 1
MR BB GOGIA(5851) for the Appellant(s) No. 1
MS MUSKAN A GOGIA(6624) for the Appellant(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
MR AR THACKER(888) for the Respondent(s) No. 1
SHIVANG A THACKER(7424) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
           and
           HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                             Date : 15/06/2021

                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the judgment and order dated 07.08.2020 passed by the learned Single Judge in SCA No. 22102 of 2019, the present appeal is filed under Clause 15 of the Letters Patent.

2. Heard Mr. Anand Gogia, learned advocate for the appellant, Mr. Avinash Thacker, learned advocate for respondent no.1 University and Mr. Dhawan Jayswal, learned advocate for respondent no.2.

C/LPA/879/2020 ORDER DATED: 15/06/2021

3. By way of writ petition under Articles 226 and 227 of the Constitution of India, the appellant-original petitioner had prayed for the following reliefs -

"A. Lordship may be pleased to admit and allow this petition.

B. YOUR LORDSHIPS may be pleased to direct the Respondent University to take the petitioner back immediately in service with all consequential benefits including backwages, continuity of service etc., from the date he is not allowed to work i.e. from further holding, declaring and directing that such discontinuation from service of Petitioner is illegal, malafide, void- ab-initio and be quashed and set aside.

C. Pending admission, hearing and final disposal of this petition, LORDSHIPS be pleased direct respondent no.1 to take the petitioner on duty on his post, allow him to work and pay him salary regularly as per the rules.

D. LORDSHIPS be pleased to direct the Respondent(s) to pay special cost to the Petitioner, for the agonies and miseries caused to him by Respondent University for period of about one year which continues till this date."

4. At this stage, it deserves to be noted that similarly situated employee had approached this Court by way of filing writ petition being SCA No. 21449/19, which came to be rejected on the ground that the petitioner has an alternative efficacious remedy of filing appeal under Section 11 of the Gujarat Educational Institutional Services Tribunal Act, 2006 (hereinafter referred to as the "Act") vide judgment and order dated 29.06.2020. The said judgment and order was challenged by way of intra court appeal being LPA No. 337 of 2020. The said appeal came to be dismissed on 13.07.2020 and the Hon'ble Division Bench observed thus in paras 36 to 40 as under -

"36 In the overall view of the matter, we are convinced that the learned Single Judge committed no error much less an error of law in passing the impugned order.

C/LPA/879/2020 ORDER DATED: 15/06/2021

37 In our opinion, this appeal deserves to be dismissed, and is, accordingly, dismissed.

38 In view of the final disposal of the main matter, the connected civil application also stands disposed of.

39 Before parting with this order, with all humility at our command, we would like to convey to Mr. Gogia that he is a young, talented and upcoming lawyer with a reasonable standing at the Bar. He should well remember that there is a difference between giving up and knowing when you have had enough. Undoubtedly, a counsel has a right to argue his matter with tenacity on behalf of his client, but, at the same time, a good lawyer should always remind himself of the merits of his matter. Any lawyer to be successful should keep in mind the three elementary principles of advocacy : (i) what to argue, (ii) what not to argue, and (iii) where to draw a line and stop. It is very essential for any upcoming lawyer to keep these three elementary principles of advocacy in mind. The hearing of this appeal should have concluded within no time having regard to the main issue involved in the same. However, it took more than an hour for this Court to convince Mr. Gogia that he has no case and this Court is not inclined to disturb the discretionary order passed passed by the learned Single Judge. The members of the Bar are the backbone of the judicial system. They are naturally aware of the role expected of them in the Court proceedings. Waste of even fifteen minutes in each working session on account of unnecessary prolonged submissions at the instance of the learned advocate works out to a loss of at least two full working days in a month. If this happens in ten Courts, the loss would be twenty working days of one Court which means the effective Judge strength of the Courts is reduced by at least one Judge, if all these were single Judge benches. All this at whose cost? Lawyers and Judges should therefore conduct the work keeping foremost the interest of those who await the outcome of process and who have no say in their grooming. There has therefore to be a concerted effort of correcting each other to bring about a work culture where the Judges feel obliged to take up causes and ensure that public time is not unnecessarily wasted and the lawyers cooperate in the proceedings by their active and effective participation, by avoiding unnecessary prolonged arguments without any justifiable reasons.

40 Before parting with this matter, we may observe that if the appellant prefers any representation addressed to the University as regards his grievances, then such representation shall be looked

C/LPA/879/2020 ORDER DATED: 15/06/2021

into by the University within eight days of its receipt and the appellant shall be informed accordingly in writing about the outcome of such representation. We are saying so so as to avoid any hardship that may be caused to the appellant on account of Section 11 of the Act, 2006."

5. The original petitioner of Special Civil Application No. 21449 of 2019 challenged the said order before the Hon'ble Apex Court by way of filing SLP wherein the Hon'ble Apex Court was pleased to grant leave and same came to be registered as Civil Appeal No. 91 of 2020 wherein the Hon'ble Apex Court was pleased to dispose of the said appeal vide order dated 12.01.2021 and passed the following order -

"Leave granted.

We have heard learned counsel for parties. Learned counsel for the respondent(s) has drawn our attention to page 133 where a copy of the representation made by the appellant has been annexed as Annexure D. It is her submission that in view of this representation, the mandate of making representation before approaching the Tribunal has been complied with.

We also find from the orders recorded from time to time that the case of the appellant has been on in one forum or the other for the last two years and was finally relegated to filing of an appeal under Section 11 of the Gujarat Educational Institutions Services Tribunal Act, 2006. We are thus, of the view that it is in the fitness of things where the Tribunal examines the case on merits rather than directing the appellant to make representation and thereafter again approach the Tribunal.

We thus, set aside the operative para of the impugned order as well the order dated 27th September, 2019 passed by Tribunal with a direction to the Tribunal to examine the case of the appellant on merits and considering the time period which has already gone by, the matter may be taken up as expeditiously as possible. This would as a sequitur also give option to move for any interim relief in those proceedings which may be examined by the Tribunal.

The appeal stands disposed of."

C/LPA/879/2020 ORDER DATED: 15/06/2021

6. The findings arrived at by the Hon'ble Single Judge as well as the Hon'ble Division Bench in SCA No. 21449 of 2019 and LPA No. 337 of 2020 were upheld by the Hon'ble Apex Court as per the aforesaid order dated 12.01.2021, except the directions issued in para 40 of the judgment of the Division Bench whereby the said petitioner was directed to file representation.

7. Even according to the learned counsel appearing for the parties, the present appeal is similarly situated. The learned Single Judge in the case on hand was pleased to relegate the appellant to available alternative remedy of filing an appeal before the Tribunal under the provisions of the Act. The learned Single Judge by following the observations made in para 40 of the order passed in LPA No. 337 of 2020 has been pleased to observe that the petitioners are permitted to prefer representation to the respondent University. Considering the observations made by the Hon'ble Apex Court, the order passed by the learned Single Judge is modified to the extent that it would be open for the appellant to prefer an appeal before the Tribunal under Section 11 of the Act. The direction to file representation is quashed and set aside and as directed by the Hon'ble Apex Court, the Tribunal shall examine the case of the appellant on its own merits as expeditiously as possible. As observed by the Hon'ble Apex Court, the appellant is also at liberty to move the Tribunal for an interim relief which shall be dealt with by the Tribunal in accordance with law. The appeal stands disposed of accordingly. As the appeal is disposed of, the civil application also would not survive and shall stand disposed of accordingly.

(R.M.CHHAYA, J)

(NIRZAR S. DESAI,J) BIJOY B. PILLAI