Chief District Health Officer, ... vs Dinesh Dhanjibhai Rajpara
2023 Latest Caselaw 4504 Guj

       C/LPA/643/2023                            ORDER DATED: 15/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 643 of 2023

            In R/SPECIAL CIVIL APPLICATION NO. 20338 of 2018
                                  With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
               In R/LETTERS PATENT APPEAL NO. 643 of 2023
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     CHIEF DISTRICT HEALTH OFFICER, RAJKOT DISTRICT PANCHAYAT
                               Versus
                     DINESH DHANJIBHAI RAJPARA
==========================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
for the Respondent(s) No. 5
Ms SHRUTI DHRUVE, AGP for the Respondent(s) No. 4
MR RAMESHBHAI M PATEL(10094) for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE J. C. DOSHI

                             Date : 15/06/2023

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J. C. DOSHI)

1. Heard learned advocate Mr. HS Munshaw appearing for the appellant, learned advocate Mr. RM Patel appearing on caveat for respondent Nos.1 to 3 and learned AGP Ms. Shruti Dhruve appearing for the respondent No.4.

2. Present LPA under clause 15 of the Letters Patent is directed against the judgment and order dated 26.8.2022 passed in Special Civil Application No.20329 of 2018 and allied matters, whereupon, the challenge essentially relates to the judgment passed in Special Civil Application No.20338 of 2018. Learned Single Judge was pleased to dispose of captioned Special Civil Application as the identical issue has been decided by the

C/LPA/643/2023 ORDER DATED: 15/06/2023

Division Bench of this Court in Letters Patent Appeal No.1411 of 2018 and allied matters.

3. The respondents - original petitioners were appointed at various times as Multi-purpose Health Workers with the appellant authority and was working uninterruptedly. The appointment of the original petitioners was based on their qualifications. Later on, according to the appellant, the qualifications of the original petitioners were found surreptitious. In view of the allegation that the educational institution, from which the original petitioners have obtained such qualification, was not recognized educational institution and thus, the degree certifying the qualifications of the original petitioners was also not recognized. In view of such finding, the appellant authority has terminated the services of the original petitioners by issuing orders to the original petitioners, which was subject matter of challenge before the learned Single Judge in Special Civil Application No.20338 of 2018.

4. The original petitioners had put the case before the learned Single Judge that they were holding due qualifications from the recognized university, but during the hearing of captioned Special Civil Application, learned advocate for the original petitioners requested the Court to dispose of the Special Civil Application in terms of order passed by the Division Bench of this Court in Letters Patent Appeal No.1411 of 2018 and allied matters.

5, Learned Single Judge have referred para 11 of the said judgment in para 2 and operative order in 2.1 of the impugned

C/LPA/643/2023 ORDER DATED: 15/06/2023

judgment for disposing of the petition. Para 2 & 2.1 reads thus:-

2. Though the pleadings in the petition are to the extent of justifying case of the petitioners that they were holding due qualification from recognized University, however a request is made by learned Advocate for the petitioners that the case of the petitioners may be disposed of in terms of the order passed by the Division Bench of this Court in the aforementioned batch of Letters Patent Appeals. The Court, therefore, refers to the relevant paragraph of common oral order dated 08.07.2022 passed in the aforesaid Letters Patent Appeals, wherein on the basis of requirement of the respondents to follow principle of natural justice, in para-11, it is held as under:-

"11. Though Mr. Munshaw and Mr. Anand Yagnik would support the impugned orders, fact remains that before passing order of termination, no show cause notice came to be issued to candidates/writ applicants and in some of the cases, it has been noticed by District Panchayats that their internal inquiry report suggested that candidates having not attended the course and thereby it resulted in order of termination being passed or authorities having arrived at a conclusion that the marks card/ Degree Certificates produced by writ applicants were fake. If it were to be so, District Panchayat was required to meet the principles of natural justice. If the termination order was based on an internal inquiry report, the minimum requirement was to supply copy of such report to the respective candidates and call for their reply and after considering their reply, if any, termination order could have been passed, if thought fit. On the other hand, termination order has been passed without even issuing show cause notice and based on internal inquiry report.

Such termination would necessarily be in violation of principles of natural justice, as the doctrine of audi altem partem having not been naturally the principles of natural justice cannot be ignored. Though an attempt has been made to press into service the doctrine of useless formality theory, by contending that even issuance of notice would not have altered the situation, on the basis of material available on record, it cannot be held so. As such, we are of the considered view that requirement of principles of natural justice had to be extended to the writ applicants before the order of termination came to be passed. Since the termination order has been passed

C/LPA/643/2023 ORDER DATED: 15/06/2023

without issuance of show cause notice, it cannot stand the test of law."

2.1 The Division Bench has thereafter proceeded to pass operative order laying down the steps required to be taken by the respondent-authorities so as to bring their decision in conformity with the principles of natural justice. The operative orders reads as under:-

"(i) Letters Patent Appeals and Special Civil Applications stand disposed of.

(ii) As far as Special Civil Application Nos.7118 of 2020, 7364 of 2020, 10471 of 2019, 17283 of 2018 and 20729 of 2018 are concerned, they are hereby allowed and notice of termination issued to writ applicants is ordered to be treated as show cause notice and reply be submitted by the writ applicants and thereafter, same be adjudicated by respective Panchayats in accordance with law.

(iii) Orders passed by the learned Single Judge in setting aside the order of termination are sustained. However, order directing payment of back wages from the date of termination stands modified by directing payment of wages from the date of order of the learned Single and said compliance shall be made within an outer limit of three months from today.

(iv) Respective District Panchayats would be at liberty to initiate fresh proceedings, if deemed fit and if so advised, and pass orders after treating the order of termination as show cause notice and on consideration of the reply, pass orders in accordance with law as observed hereinabove.

(v) We make it clear that we have not expressed any opinion with regard to correctness, authenticity and validity of Diploma Certificates which came to be produced by the respective writ applicants at the time of their employment and it is open for the respective District Panchayats to pass orders after considering the reply, if any, that would be submitted by the writ applicants.

(vi) It is also made clear that where no show cause notice has been issued, respective District Panchayats shall issue show cause notice and after considering the reply, if any, submitted by the writ applicants within the period stipulated under show cause, are empowered to pass orders on merits and in accordance with law. However, in respect of those writ applicants to whom show cause

C/LPA/643/2023 ORDER DATED: 15/06/2023

notices have been issued but termination order is based on the internal inquiry report, copy of such report shall be furnished to them to enable them to have their say on the said issue.

(vii) Respective writ applicants, who have not yet been reinstated, pursuant to order of the learned Single Judge, shall be reinstated by respective District Panchayats within an outer limit of one month from the date of receipt of copy of this order.

(viii) It is also made clear that writ applicants on being served with show cause notice or report, as the case may be, shall extend full cooperation to the District Panchayats in concluding the inquiry and it is needless to state that in the event of any such writ applicants failing to co-operate in the inquiry, appropriate authority would be at liberty to proceed to adjudicate the same in accordance with law.

(ix) Costs made easy.

(x) Pending applications, if any, stand consigned to records."

6. We do not find any ground on the basis of which, the impugned judgment of the learned Single Judge disposing of the captioned petition in terms of operative order passed in Letters Patent Appeal No.1411 of 2018 was called in question. The impugned judgment is not prejudicial to either party. In view of the said finding, present Letters Patent Appeal is meritless and deserves to be dismissed.

7. Resultantly, present Letters Patent Appeal fails and stands dismissed at admission stage. Connected civil application also stands disposed of.

(N.V.ANJARIA, J)

(J. C. DOSHI,J) SHEKHAR P. BARVE