Gujarat High Court

Palanpur Municipality Through Chief ... vs Kantibhai Ishwardas Patel, Since Decd. ... on 16 April, 2024

Author: Biren Vaishnav

Bench: Biren Vaishnav

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      C/LPA/447/2016                              JUDGMENT DATED: 16/04/2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 447 of 2016
                                     In
                R/SPECIAL CIVIL APPLICATION NO. 5241 of 2000


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

and

HONOURABLE MR. JUSTICE PRANAV TRIVEDI

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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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   PALANPUR MUNICIPALITY THROUGH CHIEF OFFICER, & ORS.
                           Versus
KANTIBHAI ISHWARDAS PATEL, SINCE DECD. THROUGH LEGAL HEIRS
                          & ORS.
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1,2,3
RULE SERVED for the Respondent(s) No. 1.1,1.2,1.3,1.4
==========================================================

    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
          and
          HONOURABLE MR. JUSTICE PRANAV TRIVEDI

                              Date : 16/04/2024

                             ORAL JUDGMENT

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(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. This appeal under Clause 15 of the Letters

Patent arises out of the oral judgement passed by

the learned Single Judge dated 02.03.2016.

2. By the aforesaid judgement under challenge, the

learned Single Judge in a petition filed by the

respondent, interfered with the order of

compulsory retirement passed by the Palanpur

Municipality and issued certain consequential

directions. Those consequential directions were

issued to be given to the legal heirs of the

petitioner who pending the petition had died.

3. Facts in brief would indicate that the respondent

was the original petitioner and was working with

the Palanpur Municipality as Food Inspector. It

was his case that he was serving honestly and

diligently and there was no reason for the

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appellant - Municipality to pass an order of

compulsory retirement against the respondent-

original petitioner.

4. Various grounds were advanced by the counsel

appearing for the respondent-original petitioner

before the learned Single Judge assailing the

ground of compulsory retirement.

5. The petition being allowed, the Palanpur

Municipality is in appeal before us.

6. Mr.H.S.Munshaw learned advocate appearing for

the appellant - Municipality would submit that it

was not a case where the respondent-original

petitioner could not be said to have a career

which was blot-less. Numerous complaints qua

public at large were filed against him due to his

indifferent manner and method of working. The

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respondent was caught red handed by Anti-

Corruption Bureau for bribe of Rs.3,000/-, for

which, a case was lodged before the competent

authorities.

7. Mr.Munshaw would submit that in the past the

conduct of the original petitioner was found to be

bad inasmuch as, it came to the notice of the

municipality on the basis of complaints lodged by

several businessmen that he was harassing the

business community of the Municipality.

8. Mr.Munshaw would take us through different

letters of the authorities indicating that his

conduct was not above board. That he was

harassing the public at large and was playing

mischief with the records and reports in different

cases concerning the office of the Commissioner

of Food and Drugs and that there were

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complaints against him which is evident from the

communications dated 29.01.1991, 12.03.1991

and 23.04.1991. He would also rely on a letter

dated 27.11.1989 from the office of the

Commissioner of Food and Drugs against the

petitioner. Serious complaints were made

according to Mr.Munshaw as is evident from the

communication dated 28.01.1986. In other

words, the emphasis of the submissions of the

learned counsel for the Municipality was that

retaining the respondent-original petitioner

(since deceased) was not in the interest of the

Municipality and therefore the order of penalty

was justified.

9. Though served, nobody appears for the legal

heirs of the respondent (since deceased).

10.We have extensively considered the submissions

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of learned counsel for the Municipality and also

the judgement of the learned Single Judge.

11. Essentially, on perusal of the order of the learned

Single Judge which is under challenge, it would

indicate that having set out the law with regard

to compulsory retirement in the relevant

paragraph of the decision under challenge, the

issue which the learned Single Judge was

required to consider was, whether it was open

for the Court in exercise of powers under Article

226 of the Constitution of India to interfere with

the order of compulsory retirement ?

12. The learned Single Judge set out various

decisions of the Supreme Court on the

considerations that should weigh with the

authorities in passing an order of compulsory

retirement.

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13. Perusal of the order of the learned Single Judge

would indicate that when considering whether

the order of compulsory retirement was in

colourable exercise of powers or whether it was

imposed as a punitive measure, the learned

Single Judge, in our opinion, has rightly so found

that though the Municipality would contend that

there were several letters indicating that the

conduct of the respondent (since deceased) was

amiss, there were on record several certificates

issued by the Chief Officer, Administrator and

the President of the Municipality, categorically

appreciating the conduct of the respondent

(since deceased). As far as his conduct with

regard to being trapped for an offense under the

Prevention of Corruption Act, it is found that the

respondent (since deceased) was acquitted and

appeal of the State failed. What is also apparent

is that the respondent had filed several FIRs

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against his superior officer who was working as a

Chairman of the Food Adulteration Committee.

Obviously therefore, what is apparent is that

having worked as a Food Inspector and having

filed FIRs against his superior officer must have

ruffled the feathers of his Superior Officers and

therefore the order of compulsory retirement

against the respondent was passed.

14. If the submission of the learned counsel for the

Municipality that the conduct of the respondent

over a period of 10 years was not above board, in

the opinion of this Court, as was rightly held by

the learned Single Judge, nothing prevented the

Municipality from framing charges and holding a

departmental inquiry and therefore the learned

Single Judge in paras 25 and 26 of the order

under challenge based on a material observed

thus:

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"25. Thus, from the material produced on record, it is clear that respondent Nagarpalika has passed the impugned order on 20.05.2000 with a malafide intention at the instance of respondents No.2 and 3. The petitioner has well in advance shown apprehension about the same. It is further clear that while passing the impugned order, the respondent authority has taken into consideration the irrelevant material and not at all considered the service record of the petitioner i.e. the certificates dated 24.02.1993, 31.08.1994 and 29.09.1999, issued by the various officers of the respondent Municipality, which are produced at page 214 to 216 of the compilation. If the petitioner was working with honesty and sincerity as reflected in the said certificates, there was no question of taking into consideration the irrelevant material while passing the impugned order. Even, no departmental inquiry was pending against the petitioner which is reflected from the aforesaid certificates till 1999. Thus, the observation made by the respondent Municipality in the impugned order that for certain charges, departmental inquiry was initiated against the petitioner in the year 1990 and for a period of 10 years, said inquiry was not concluded because of the petitioner. The said fact is not supported by any material produced on record and the said fact is also incorrect in view of the certificates issued by the

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respondent authority. Thus, irrelevant material/fact of departmental inquiry pending since 10 years was considered and observed in the impugned order that now if the disciplinary proceedings is initiated against the petitioner, then it would not possible to conclude the inquiry against him and therefore in public interest, it is decided to pass an order of compulsory retirement of the petitioner.

Thus, instead of initiating the inquiry against the petitioner, order of compulsory retirement was passed. This is nothing but a short cut adopted by the respondent Municipality to avoid conducting departmental inquiry, which is not permissible. Thus, such an order is punitive in nature.

26. In view of the aforesaid discussion, this Court is of the opinion that the impugned order passed by the respondent Municipality was with mala-fide intention and at the instance of the respondents No.2 and 3 and therefore, the same is required to be quashed and set aside. The said order is also arbitrary and perverse as irrelevant material was considered by the respondent Municipality and the relevant material was ignored. The said order is also required to be quashed and set aside on the ground that the same was passed as a short cut to avoid departmental inquiry against the petitioner. Thus, though the scope of judicial review is limited while exercising powers under Article 226 of the

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Constitution of India by this Court, in the facts and circumstances of the present case, and in view of the aforesaid discussion, the impugned order is required to be interfered with and is required to be quashed and set aside. Accordingly, the following order is passed."

15. Even if a glance is made at the certificate

annexed to the rejoinder given by the Municipal

Officers of the Municipality, one of the

certificates indicate that the respondent (since

deceased) was honest, hardworking and that he

had no bad record and his track record as a Food

Inspector was clean and honest.

16. Obviously therefore, in our opinion and in the

opinion of the learned Single Judge which we

affirm, the tool of compulsory retirement was

used only with a view to shortcut departmental

inquiry.