Naynaben Abhesingh Parmar vs Kamleshbhai A Patel
2021 Latest Caselaw 15043 Guj

      C/MCA/191/2021                              ORDER DATED: 24/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/MISC. CIVIL APPLICATION NO. 191 of 2021

             In R/SPECIAL CIVIL APPLICATION NO. 966 of 2004

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                       NAYNABEN ABHESINGH PARMAR
                                 Versus
                          KAMLESHBHAI A PATEL
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Appearance:
DHAVAL A PARMAR(7780) for the Applicant(s) No. 1
MR HS MUNSHAW(495) for the Opponent(s) No. 2
MR. TIRTHRAJ PANDYA, AGP, NOTICE SERVED(4) for the Opponent(s)
No. 1,3
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    CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
          JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 24/09/2021

                        ORAL ORDER

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE R.M.CHHAYA)

1 Draft amendment granted.

2 Heard Mr.Dhaval Parmar, learned advocate for the applicant,

Mr.H.S.Munshaw, learned advocate for the respondent No.2 and

Mr.Tirthraj Pandya, learned Assistant Government Pleader for the

respondent No.3.

3 The present application under Section 10 of the Contempt of

Courts' Act, 1971, is filed by the original petitioner contending that the

directions issued by the learned Single Judge of this Court in Special

Civil Application No. 966 of 2004 have not been complied with.

      C/MCA/191/2021                                ORDER DATED: 24/09/2021



4     Heard respective advocate for the parties.

5     At the outset, it deserves to be noted that the learned Single Judge

while allowing the writ petition has observed thus:

"6 Moreover, as it emerges from the material on record, report given by the Technical Education Board was not supplied to the petitioner. The principles of natural justice demands that such report should be made available to the petitioner enabling her to make representation, if any, against such report. The report given by the Technical Examination Board is the basis of termination. Therefore, copy of the same is required to be given to the petitioner before any final order of termination is passed. Admittedly no such opportunity was ever given to the petitioner before decision of termination is taken by the respondent. Therefore, on this count, the order of termination needs to be set aside. Moreover, in light of the prayer made by the petitioner that subsequently she has acquired the requisite certificate from a recognized institution, and her service record of last 15 years is also satisfactory needs to be considered in light of facts and circumstances of the present case. Accordingly, the order passed by the respondent panchayat terminating the services of the petitioner dated 09.01.2004 is hereby quashed and set aside. The respondent panchayat is directed to reinstate the petitioner and her services shall be regularized on the strength of her certificate obtained during intervening period. So far as question of recovery is concerned, it appears that the petitioner has rendered service under the respondents for more than 15 years. It also appears that during the said period the petitioner has actually worked under the respondents for more than 15 years. It also appears that during the said period the petitioner has actually worked under the respondents and availed the salary for the post in question. Moreover, there is nothing adverse in the service record of the petitioner during the said period, and therefore, the recovery sought by the respondent for the actual work done by the petitioner is required to be quashed and set aside while allowing the present petition. Accordingly, the recovery order is also ordered to be set aside.

7 With aforesaid directions and observations, the present petition stands allowed. Direct service is permitted. Rule is made absolute accordingly."

      C/MCA/191/2021                                 ORDER DATED: 24/09/2021




6     The record of this petition itself indicates that the applicant -

original petitioner has been reinstated and her services are also

regularized. The order of recovery was quashed which has been

confirmed by the co-ordinate bench in Letters Patent Appeal No. 1515 of

2017, which vide judgment and order dated 27.03.2018 has become final.

We do not find that the learned Single Judge has issued any directions as

regards payment of salaries. However, if it is found that the applicant is

entitled to the same, it is open for the applicant to raise such a grievance.

As far as the period mentioned in the draft amendment which is granted

today, Mr. Munshaw, learned advocate, submitted that the panchayat

authorities have implemented the directions issued by the learned Single

Judge. Viz-a-viz this, it is the case of the applicant that the period from

01.05.1994 is wrongly taken into consideration. However, in case of any

such erroneous order it cannot be said that the respondent authorities have

deliberately flouted the orders of this Court and we do not find any

element of wilful disobedience. Sufficient compliance is made by the

respondent authorities and hence the provisions of the Contempt of

Courts' Act, 1971, are not attracted at all. However, even while not

entertaining this application, the respondent authorities are directed to

implement the judgment and order of the learned Single Judge confirmed

by the Co-ordinate Bench in Letters Patent Appeal No. 1515 of 2017 in

C/MCA/191/2021 ORDER DATED: 24/09/2021

its true letters and spirit and if the applicant still feels that it is not

implemented in toto, it is open for the applicant - original petitioner to

raise her grievance before the authorities.

With the aforesaid directions, the application is disposed of. Notice

is discharged.

(THE ACTING CHIEF JUSTICE R.M.CHHAYA, J)

(BIREN VAISHNAV, J) Bimal