Bipinbhai Makandrai Bhatt vs Municipal Commissioner
2023 Latest Caselaw 5043 Guj

     C/SCA/14415/2017                                 JUDGMENT DATED: 30/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 14415 of 2017


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

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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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                           BIPINBHAI MAKANDRAI BHATT
                                      Versus
                        MUNICIPAL COMMISSIONER & 1 other(s)
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Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                                  Date : 30/06/2023

                                 ORAL JUDGMENT

1. The present petitioner is filed under Article 14, 19, 21 and 226 of the Constitution of India with following prayers;

"(A) Admit the Special Civil Application.

C/SCA/14415/2017 JUDGMENT DATED: 30/06/2023

(B) Allow this Special Civil application by issuing a writ of mandamus or any other writ in the nature of mandamus or direction quashing and setting aside the impugned order dated 5.6.2017 at Annexure - A passed by respondent authorities in the interest of justice.

(C) Pending admission, hearing and final disposal of this petition, the Hon'ble Court may be pleased to grant stay as to execution, implementation and operation of the order passed by respondent authority at Annexure - A dated 5.6.2017 in the interest of justice."

Factual aspect;

2. Petitioner joined with the respondent - authority as Sanitary Sub Inspector in the year 1985 and served with the respondent authorities for 25 years blot-less and unblemished service. It is the case of the petitioner that on 7.10.1989, the petitioner was served with the notice asking him to show-cause as to why disciplinary action under Section 56(2) of the Gujarat Provincial Municipal Corporation Act, 1959 be initiated against the petitioner for reporting the office late by 30 minutes. Reply to the show-cause notice was given by the petitioner along with the medical certificate disclosing that he was suffering form kidney disease since 19.08.1989. However, the same was not considered by the respondent authority and vide order dated 16.11.1989, respondent imposed the punishment of stoppage of One increment with future effect.

2.1 It is the case of the petitioner that being aggrieved by the said order, petitioner has made a representation dated

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12.03.1990 requesting the respondent authority to reconsider the decision taken vide order dated 16.11.1989. But the said representation went unheeded. Petitioner went on making further representations to settle the dispute with the respondent authority within the house. But all the attempts made by the petitioner turned out to be a mere cry in the wilderness and therefore, petitioner filed a writ petition being Special Civil Application No.9028 of 2016, which was disposed of by issuance of direction upon respondent authority to pass speaking reasoned order in the appeal filed by the petitioner against the impugned order within two months of receipt of writ of the order. As a result, impugned order dated 05.06.2017 was passed by the authority without taking into account his 25 years of unblemished service record. Hence, the petitioner has filed the present petition.

2.2 Upon issuance of the notice, the respondent authority has filed an affidavit in reply on behalf of respondent No.1, wherein averments and allegations of the petition are denied and it is contended that the petitioner was found guilty of negligence in performing his duty. He was also offered an opportunity of personal hearing and after hearing the petitioner, it was thought fit to turned down the representation of the petitioner and as such an order was passed. It is also stated that there is no illegality committed by the respondent authority. As such it is prayed to reject the present petition.

Submissions of the petitioner;

3. Heard learned advocate Mr. Murali Devnani for the

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petitioner. He has submitted that merely on the basis of the show-cause notice for an act wherein the petitioner has turned up for his work only half an hour late would result into major penalty of stoppage of One increment with future effect. It is also submitted that as it is a major penalty without holding an inquiry, it is illegal.

3.1 It is also submitted that the representations were made by the petitioner to consider his case sympathetically because he had a reason for being half an hour late due to some medical treatment, but the same was not considered. During his service tenure of 25 years, petitioner has been never served with the notice due to any act of the petitioner. As such, the impugned order is bad in law and prayed to quash the order.

3.2 Learned advocate for the petitioner has relied upon following decisions in support of his case;

(1) Kulwant Singh Gill vs. State of Punjab and Haryana reported in 1991-SCC-Supp1-504 (2) Mohinder Singh vs. State of Punjab and Haryana reported in 1995-SCC-Supp4-433

Submissions of the respondent;

4. On behalf of respondent authority, learned advocate Mr.Rajesh Chauhan for learned advocate Mr. H. S. Munshaw has submitted that impugned order dated 05.06.2017 is a legal order. There is no illegality committed by the authority while passing an order of stoppage of One increment with future effect. Moreover, it is submitted by learned advocate

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Mr.Chauhan that punishment was imposed in the year 1989 whereas appear was filed in the year 1997. Therefore, there is delay of 8 years in challenging the order by way of an appeal. As such, the petitioner is not entitled for any relief. As the order is legal and in accordance with law, no interference is required. Hence, prayed to dismiss this petition.

Findings of the Court;

5. Upon hearing the submissions of both the sides, it is undisputed aspect that the petitioner has worked in the department for 25 years. He was initially appointed at Sanitary Sub Inspector and thereafter promoted as Sanitary Inspector. It is also not in dispute and no iota of evidence is produced on record to show that during his service, he was involved in any kind of misconduct or any show-cause notice was issued, which is against the interest of respondent authority. His service was unblemished, which is not disputed. However, the notice was issued to the petitioner on 07.10.1989, when he reached half an hour late for his duty. The notice which is produced on record, does not show that what is the time of his duty but he has arrived at 7 o'clock in the morning for the duty.

5.1 In response to the notice, petitioner had filed his reply to the Commissioner, Rajkot Municipal Corporation wherein he has stated that as he was having some kidney treatment going on, he was not able to attend the duty at regular time. It is also on record that petitioner was on duty in ward No.4 as a Sanitary Inspector and the reply of the petitioner was not

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considered and the impugned order was passed on 16.11.1989, merely on the ground that the explanation which was given by the petitioner, was not found satisfactory.

5.2 It is also on record that on the date order of stoppage of one increment with future effect was passed, the petitioner has made representation before the authority. Copies of representation are produced on record from 10.10.1989 till 03.06.2014 and lastly on 07.01.2015. Therefore, it cannot be said that petitioner has approached the authority at belated stage. In the year 2008, petitioner has written to the Chairman of the Committee to decide his case sympathetically and to decide his appeal, at the earliest. Thereafter in the year 2016, he had filed a petition being Special Civil Application No.9028 of 2016, wherein the respondents were directed to decide the appeal within stipulated time of two months and in pursuance to such directions, an order dated 05.06.2017 was passed and the order of stoppage of One increment with future effect was sustained. The only reason assigned is petitioner's turning up late by half an hour for duty, else nothing has been brought on record, as the petitioner was working in ward No.4 and due to his late coming any resident of that ward has made a complaint or that they have faced any hardship or there was any problem in collection of garbage in half an hour absence of petitioner's supervision. Not a single document has been brought on record that due to late coming of the petitioner that too on medical ground, the Municipal Corporation has faced difficulty and merely coming half an hour late for one day, has been considered as a misconduct and the impugned order has been passed.

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5.3 It is also pertinent to note that, in the order dated 05.06.2017, the resolution of the Standing Committee dated 10.04.1997 was also referred, wherein the Standing Committee has recommended to consider the case of the petitioner sympathetically, but it was not considered and the impugned order was passed.

5.4 It also cannot be denied that while passing an order dated 04.04.2017 in Special Civil Application No.9028 of 2016 it was made clear that the respondent shall pass speaking reasoned order in the appeal based upon the facts, circumstances and applicable law, whereas no single reason has been assigned as to why the order is imposed. What aspects are considered for imposing the punishment and that the Standing Committee has recommended that the case of the petitioner be considered sympathetically, why such recommendation was turned out. As such impugned order dated 05.06.2017 cannot be termed as a speaking reasoned order and the order of stoppage of One increment with future effect is passed.

5.5 In the case of Kulwant Singh Gill (supra), appellant was working as an Inspector and penalty of stoppage to two increments with cumulative effect was imposed. The Honourable Supreme Court has held that imposition of major penalty of stoppage of two increments with cumulative effect without holding an inquiry is per se illegal and it is also held that regular inquiry ought to have been conducted.

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5.6 In the case of Mohinder Singh (supra) also, penalty of stoppage of increments with cumulative effect was imposed without holding an inquiry and therefore, the Honourable Supreme Court has held that major penalty could not have been imposed without holding an inquiry and case was remanded to the High Court.

5.7 Based upon the above two decisions by the Honourable Apex Court in this case also merely based upon the show-cause notice, an order of punishment of stoppage of One increment with future effect, which can be termed as major penalty cannot be passed. However, the matter cannot be remanded as the petitioner has already retired from the service. However, considering the fact that without holding a regular departmental inquiry and by passing non-speaking order, though there was directions by this Court in Special Civil Application No.9028 of 2016, the impugned order was passed, which cannot be sustained.

Order;

6. Under the circumstances, impugned order dated 05.06.2017 passed by the respondent authority of stoppage of One increment with future effect is modified to the extent of penalty of stoppage of two increments without future effect has been imposed upon the petitioner.

6.1 As the petitioner is retired from the service on superannuation, the consequential monitory benefits which the petitioner is entitled shall be given to the petitioner within a

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period of Six weeks from the date of receipt of this order. Thereby, present petition is partly allowed. Rule is made absolute to that extent.

(RAJENDRA M. SAREEN,J) DRASHTI K. SHUKLA