Narayansinh Govindsinh Rawat vs State Of Gujarat
2022 Latest Caselaw 7076 Guj

     C/SCA/22779/2019                              JUDGMENT DATED: 08/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 22779 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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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                        NARAYANSINH GOVINDSINH RAWAT
                                    Versus
                              STATE OF GUJARAT
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR JAYANT P BHATT(169) for the Petitioner(s) No. 1.1,1.2,1.3,1.4,1.5
MR JEET J BHATT(6154) for the Petitioner(s) No. 1.1,1.2,1.3,1.4,1.5
MR KURVEN DESAI, AGP for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV


                               Date : 08/08/2022


                               ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Kurven Desai, learned

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Assistant Government Pleader waives service of notice of

Rule for the respondents.

2. With the consent of the learned advocates for the

respective parties, the petition is taken up for final hearing

today.

3. The challenge in this petition is to the order dated

21.12.2012 dismissing the petitioner from the post of

Armed Police Constable, Buckle No.607, State Reserve

Police Force, Group 12, Gandhinagar and the appellate

order dated 17.9.2013.

4. Confronted with the question whether the petition should

not be entertained only on the ground of delay, Mr. Jeet J.

Bhatt, learned counsel for the petitioner would draw the

Court's attention to the order dated 25.11.2016 passed in

SCA No. 2224 of 2012 by the Coordinate Bench of this

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Court in the case of Mahendrasinh Gayaprasad Mali v.

State of Gujarat where orders of dismissal were

challenged by the colleagues of the petitioner and this

Court had allowed the petitions. Subsequently on

13.7.2018 on the remand made, even before the Division

Bench where the State was in appeal by way of LPA

No.1076/2019, the only modification in the order that was

made was that the petitioners of those petitions were

treated to have voluntarily retired from services. On this

count, Mr. Bhatt would submit that the present petitioner

too be granted such benefit.

5. Mr. Kurven Desai, learned Assistant Government Pleader

for the respondent - State would oppose the petition on the

ground of delay. He would submit that the petitioner is a

fence sitter and no benefit of the judgment can be given to

the petitioner who was removed from the service in the

year 2012 and the challenge to the order is made in the

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year 2019.

6. Both the learned advocates for the respective parties would

rely on a decision in the case of State of Uttar Pradesh v.

Arvind Kumar Srivastava reported in 2015(1) SCC 347.

7. Mr. Jeet Bhatt, learned counsel for the petitioner, in

addition thereto, would rely on an oral order dated

25.2.2019 passed in SCA No.6087 of 2017 in the case of

Dharampal Subhashchandra Jakhad v. State of Gujarat,

wherein too, an order of dismissal dated 03.03.2012 was

under challenge, while the petition was filed in the year

2017.

8. In the decision in the case of Mahendrasinh Gayaprasad

Mali (Supra), the Coordinate Bench of this Court has held

as under:

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"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 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 coincidentally, 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 ORDER 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

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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 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

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07.02.1983 and his dismissal is 10.12.2010. It is this long span of his service, which needs to be protected and the State can not be permitted to be so thankless to the petitioner, for the sin which he has not committed. This petition is 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. It is noted that, on behalf of the petitioner, concession is given to give up 50% back wages, if he is not dragged into further litigation. While moulding relief, this concession is kept in view by this Court.

7. For the reasons recorded above, the following order is passed.

7.1 This petition is allowed.

7.2 The impugned order of dismissal dated 10.12.2010, passed by the Commandant S.R.P Group XII at Gandhinagar, as the Disciplinary Authority, is quashed and set aside.

7.3 The orders passed by the Appellate Authority and the Revisional Authority, confirming the order passed by the Disciplinary Authority, would not survive and stand quashed and set aside.

7.4 The petitioner shall be treated to be in continuous service. He is held to be entitled to all consequential benefits, including arrears of pay

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and allowances, revision of pay etc.

7.5 At this stage, reference needs to be made to the concession given on behalf of the petitioner, which is noted in Para:3 above. It is to the effect that, the petitioner wants to put an end to this litigation from his side and therefore he is ready and willing to give up the back wages to the extent of 50%, if the petitioner is not dragged into further litigation by the State.

7.6 The State is in legal obligation and is directed to make payment of arrears of the back wages to the petitioner within a period of 3 months from today. While calculating the arrears of back wages, the concession given on behalf of the petitioner, (as noted in Para:3 and as referred to in Para:7.5 above), shall also be kept in view. It is clarified that, in the event, the petitioner is dragged into further litigation by the State, the concession given by the petitioner, giving up 50% of back wages, shall not bind him and he shall be entitled to full back wages.

7.7 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. Since the petitioner is ordered to be treated in continuous service, it is directed that the pay of the petitioner shall also be revised, accordingly. While calculating the arrears payable to the petitioner, even this aspect shall be kept in view by the respondent authorities.

7.8 Rule is made absolute in above terms. No order as to costs."

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9. Mr. Bhatt, learned counsel for the petitioner would rely on

a decision of the Hon'ble Supreme Court in the case of

Vidya Devi v. State of Himachal Pradesh reported in

2020(2) SCC 569. Reliance was placed on para 12.1 to

12.13 to indicate that even where there is delay, where

there is a demand for justice and it is so compelling, a

constitutional Court would exercise its jurisdiction with a

view to promote justice and not defeat it. Paragraph No.13

of the decision would indicate that therein the appellant

was illiterate and was being deprived of her being private

property, the Apex Court observed that the cause of action

being continuous, merely on the ground of delay, it cannot

be discouraged.

10. Mr. Jeet Bhatt, learned counsel for the petitioner in the

case of Arvind Kumar Srivastava (Supra) would rely on

paragraph No.22.1 to indicate that when a particular set of

employees who were identically situated approached the

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Court and the benefit has been granted to them, the normal

rule should be that merely because other similarly situated

persons did not approach the Court earlier cannot be

treated differently.

11. Considering the submissions made by the learned

advocates for the respective parties, what needs to be

adjudged is the order of dismissal which is under

challenge and is of the year 2012. The explanation given

by the petitioner in paragraph No.19 that he had shifted to

his native place at Diyavar would not impress the Court,

inasmuch as, even in the case of Mahendrasinh

Gayaprasad Mali (Supra), it was the case where dismissal

was imposed on Constables serving in the State of Gujarat,

who were residing outside the State prior to their

appointment.

12. True it is that, the normal rule is that when a particular set

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of employees is given relief by the Court, the petitioner

could not have been treated differently. However, as

observed by the Hon'ble Supreme Court in the case of

Arvind Kumar Srivastava (Supra) in paragraph No.22.2,

it is subject to the well recognized exceptions in the form

of latches, delays and acquiescence. However, the Court

did make an exception in the cases where the judgment

was in rem, here is a case where an employee who was

dismissed from service did not approach the Court for over

a period of 7 years and, therefore, the benefit of the same

cannot be granted to him.

13. The petition is dismissed only on the ground of delay. Rule

is discharged.

(BIREN VAISHNAV, J) VATSAL S. KOTECHA