Gujarat High Court
Salahuddin Badasaheb Kazi vs Vadodara Municipal Corporation on 19 February, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1119 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SALAHUDDIN BADASAHEB KAZI
Versus
VADODARA MUNICIPAL CORPORATION & ANR.
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Appearance:
MR SHAKEEL A QURESHI(1077) for the Petitioner(s) No. 1
MR HARESH J TRIVEDI(927) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 19/02/2024
ORAL JUDGMENT
1. By way of present petition, under Articles 14 and 226
of the Constitution of India, the petitioner has challenged
order dated 17.1.2011 passed by the Municipal
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Commissioner, Vadodara Municipal Corporation and
prayed inter alia that:-
"29(A) admit this petition;
(B) issue appropriate writ, order or direction and be
pleased to quash and set aside the order dated
17.1.2011 as the same is violative of principles of
natural justice, Article-14 of the constitution and the
same is also violative of various rules and regulations;
(B1) Your Lordships may be pleased to issue appropriate
writ, order or direction and be pleased to quash and set
aside the modified penalty order dated 3/5/2014, and
direct the respondents to make good all the financial
losses suffered by the petitioner till date.
(C) grant stay of further operation, implementation and
execution of the order dated 17/1/2011 pending the
admission and final hearing of the petition;
D) pass such orders as thought fit in the interest of
justice."
2. The brief facts giving rise to present petition are that
the petitioner came to be appointed as Sub-Sanitary
Inspector in Vadodara Municipal Corporation on
15.11.1973. In December 1983 he was promoted to
Sanitary Inspector and then in 2001 he was promoted to
Senior Sanitary Inspector. The petitioner was given all
the three higher pay scales on completion of 9, 18 and 27
years of service. By order dated 4/4/2003 the petitioner
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was transferred in Health Branch and was given posting
on the vacant post of Birth-Death Officer's Post. The said
work attached to the post of Birth-Date Officer's Post was
the additional work over and above the duties of Senior
Sanitary Inspector which were being discharged by the
petitioner when the order dated 4/4/2003 came to be
passed. Thus, it is admitted fact that the petitioner was
given additional charge for the post of Birth- Death
Officer. The petitioner was also given additional charge of
Additional Senior Sanitary Inspector for Ward No.3 which
was all together additional charge for all together
different post. Thus, the fact remains that the petitioner
was given three charges, namely, (i) Charge for the Post
of Senior Sanitary Inspector (Court matters); (ii) Charge
of Birth and Death Officer's Post and (iii) Additional
charge of Senior Sanitary Inspector's Post of Ward No.3.
2.1 Thereafter, the petitioner was served with an
order/communication dated 18/10/2004 by which the
petitioner was placed under Suspension. The main
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ground of suspension was to the effect that the petitioner
had failed to maintain the Birth- Death Register and has
also failed to maintain and supervise the incidental record
of Birth and Death and as the Departmental Inquiry was
under contemplation, the petitioner was placed under
Suspension vide order dated 18/10/2004.
2.2 Against the aforesaid order dated 18/10/2004 by
which the petitioner was placed under Suspension, the
petitioner had approached before this Court by preferring
Special Civil Application No.4184/2005. The said Special
Civil Application came to be disposed of by this Court by
an order dated 16/3/2005.
2.3 Thereafter, the petitioner preferred representation,
however, the concerned respondent authorities have
rejected the same. Thereafter, the petitioner was served
with a communication/Notice dated 30/11/2004 in which
the petitioner was asked to show cause as to why the
Disciplinary Proceedings under the provisions of Sec.
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56(2) of the Bombay Provincial Municipal Corporation Act
be not initiated against the petitioner. The petitioner
submitted his detailed reply dated 8/12/2004 and it was
pointed-out that he had not indulged into any irregularity/
misconduct as alleged in the communication dated
30/11/2004. Thereafter, the respondent authorities sent a
communication dated 3/6/2005 and along with the said
communication, the petitioner was served with the
charge-sheet dated 3/6/2005. In all there were four
charges were leveled against the petitioner.
2.4 Considering the nature of the allegations leveled in
the said charge-sheet, certain relevant documents which
were required to be supplied by the concerned authorities
along with the charge-sheet, were not supplied along with
the charge-sheet and as the same would have caused
prejudice to the petitioner in submitting his reply/written
statement pursuant to the said charge-sheet and
therefore, the petitioner had sent communication dated
22/6/2005 and 8/7/2005 by which the petitioner
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requested the concerned authorities to give copies of the
relevant documents. The petitioner had also requested to
grant adjournment to enable him to file reply as he was
not supplied with the necessary documents. As the
concerned respondent authorities have failed to supply
necessary documents which were very much relevant for
submitting reply/written statement and therefore, again
the petitioner sent reminder as well as further
communication dated 11/7/2005. On one hand the
concerned respondent authorities have decided to initiate
disciplinary proceedings and on another hand the
respondent authorities have also filed FIR against the
petitioner before Navapura Police Station which came to
be registered as C.R.No. 139/2004 for the offences which
came to be alleged in the FIR. As the petitioner was kept
under suspension for considerable long time i.e. for 11
months, the respondent no.2 passed an order dated
6/9/2005 and the petitioner was ordered to be reinstated
in the service. The petitioner was never supplied with the
relevant documents which were very much required by
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the petitioner to enable him to defend his case.
Respondent no.2 authority conducted preliminary inquiry
by recording statements of various employees/witnesses.
The said preliminary inquiry was conducted by the
Vigilance Officer Shri Dhirenbhai Pandya who, even after
recording various statements, including the statement of
the present petitioner, had come to the conclusion that
the petitioner had not committed any misconduct. The
fact remains that the petitioner was never supplied with
the Report of the Preliminary Inquiry which was prepared
by Shri Dhirenbhai Pandya wherein the petitioner was
exonerated. Thereafter, the respondent authorities
appointed Shri Dhiren Pandya-Vigilance Officer as Inquiry
Officer. Thereafter the Inquiry Officer was changed and
ultimately one Bipinbhai Shah was appointed as Inquiry
Officer by an order dated 25/11/2005. The said Inquiry
Officer Bipinbhai Shah had conducted Departmental
Inquiry and in fact the inquiry was concluded by him. The
said Inquiry Officer Bipinbhai Shah had also prepared
Inquiry Report and the same came to be submitted to the
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Disciplinary Authority. The inquiry was conducted by said
Bipinbhai Shah as the petitioner remained present and
the statement of Corporation Witness -Health Officer
came to be recorded by the Inquiry Officer Shri Bipinbhai
Shah. The petitioner had also cross-examined the
corporation witness during the inquiry proceedings
conducted by the Inquiry officer Bipinbhai Shah. Despite
the Inquiry Report was prepared and submitted to the
Disciplinary Authority by the Inquiry Officer Bipinbhai
Shah, the petitioner was never given a copy of the same.
However, even after conclusion of the inquiry, instead of
taking decision pursuant to the inquiry report submitted
by the then Inquiry Officer Bipinbhai, for the reasons best
known to the respondent authorities, the respondent
authorities neither passed order in respect of rejection of
inquiry report prepared by the Inquiry Officer Shri
Bipinbhai Shah nor the Disciplinary Authority passed an
order in respect of approval granted to the inquiry report,
as, in both the circumstances, the petitioner would have
been served with a communication from the Disciplinary
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Authorities in this regard. However, the fact remains that
the petitioner was never served with any communication
by the Disciplinary Authority in this regard and
straightway passed the order, as aforesaid, dated
19/3/2008, and the concerned respondent authorities
have appointed all together new Inquiry Officer, namely,
Shri Vasava for conducting the Departmental Inquiry
(Assistant Commissioner). After completion of all the
formalities and considering the defence statement of the
petitioner, the concerned respondent authorities have
passed the order dated 17.1.2011 and placed the
petitioner in the minimum scale of Rs.9300-34800 and
further decision has been taken to the effect that the
period of suspension would be considered only for the
purpose of pension and gratuity only which would make it
clear the said period would not be considered as the
period on duty as well as other consequential benefits.
2.5 Being aggrieved and dissatisfied with the said order,
the petitioner has preferred present petition.
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3. It appears that by way of order dated 17.1.2011 passed
by the respondent authority, the petitioner was placed in
his original cadre and in the minimum scale of Rs.9300-
34800 and also further decision has been taken to the
effect that the period of suspension was considered for
the purpose of continuity of service and gratuity only.
4. The said order was subsequently modified by order
dated 3.5.2014 and by the said order the petitioner was
imposed punishment of stoppage of one increment with
future effect subject to the final outcome of the criminal
proceedings.
5. Heard Mr. Shakeel A. Qureshi, learned Counsel for the
petitioner and Mr. Haresh J. Trivedi, learned Counsel for
the respondents.
6. Mr. Shakeel A. Qureshi, learned Counsel for the
petitioner has submitted that the petitioner and other
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four persons were charged for issuance of false and
fabricated death certificate and therefore, the
chargesheet came to be issued against present petitioner
whereby, the petitioner was found guilty and therefore,
the impugned punishment order came to be passed.
7. Mr. Shakeel A. Qureshi, learned Counsel for the
petitioner has submitted that pending hearing of present
petition, this Court has directed the petitioner vide order
dated 13.7.2012 to make appropriate representation
since the petitioner was not granted proper opportunity
of hearing before passing final punishment order by the
disciplinary authority. The said order dated 13.7.2012
read as under:-
"1.0 By way of this application, the application has
prayed as under:
(A) Your Lordships may be pleased to grant stay against
any further implementation and operation of
penalty order dated 17/07/2011 during the pendency
of Special Civil Application No. 11119/2011.
(B) Your Lordships may be pleased to direct the
respondent Corporation to correct the mistake while
implementing the penalty and place the applicant on his
stage one from stage sixth on which he was in this
existing pay scale at the time of imposing penalty order
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without taking away any increments, he earned in the
previous payscale.
2.0 No interim relief was granted in the main matter
being Special Civil Application No. 1119 of 2011.
3.0 As far as prayer (A) is concerned, it will not be
appropriate for this Court grant any relief since no
interim relief was granted while admitting Special Civil
Application No. 1119 of 2011.
4.0 As far as prayer (B) is concerned, the
petitioner shall make representation to the concerned
authority. If such representation is made by the
petitioner, concerned respondent authority is
directed to considered the representation of the
petitioner and decide same within a period of three
months from the date of the receipt of the
representation.
5.0 With the above observation, application
stands disposed of. Direct service is permitted."
7.1 Mr. Shakeel A. Qureshi, learned Counsel for the
petitioner has submitted that after considering the
documentary evidence and the submissions made on
behalf of the petitioner, the impugned order was
subsequently amended by the respondent corporation,
which is against the principle of natural justice and
against the facts of the present case and therefore,
impugned order imposing punishment of stoppage of one
increment with future effect is arbitrary, unjust and
deserves to be set aside.
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7.2 Mr. Shakeel A. Qureshi, learned Counsel for the
petitioner has submitted that the inquiry against all the
five persons including the petitioner was conducted and
Vigilance Officer has also inquired into the matter,
whereby the Vigilance Officer found the petitioner was
innocent however, reason best known to the corporation,
punishment order was passed only against present
petitioner which suggests malafide and arbitrariness on
the part of the corporation and therefore, the impugned
order of punishment passed by the corporation is illegal,
arbitrary and deserves to be quashed and set aside.
7.3 Mr. Shakeel A. Qureshi, learned Counsel for the
petitioner has submitted that there is specific detailed
findings of the Vigilance Officer, whereby the petition was
found innocent from the record itself. He has further
submitted that the Vigilance Officer after scrutiny of the
plethora of document and record as well as after going
through the oral examination of witnesses has come to a
conclusion that all the five persons against whom charges
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are levelled are found innocent and there was no
evidence with regard to the involvement of the said
persons in the alleged fabrication or forgery of issuance
of the bogus death certificate and therefore, the
impugned order is against the facts of the present case
and against the record of the Vigilance Officer and
therefore, the same deserves to be quashed and set aside.
He has further submitted that he impugned order
imposing punishment upon the petitioner on 3.5.2014 is
violative of fundamental rights provided under Article 14
of the Constitution of India.
7.4 Mr. Shakeel A. Qureshi, learned Counsel for the
petitioner has submitted that though the petitioner had
prayed for about 15 documents from the inquiry officer,
out of that only certain documents, which were referred
to and relied upon by the respondent in the affidavit-in-
reply were supplied to the petitioner and no other
documents were supplied and therefore, the petitioner
has lost his reasonable opportunity to make his case good
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before the disciplinary authority and therefore, this is
against the principle of natural justice as the the
respondent has not provided the relevant documents
which are referred to and relied upon by the inquiry
officer, while recording the impugned order of
punishment.
8. Mr. Haresh J. Trivedi, learned Counsel appearing for
the respondents has raised objection against the present
petition. Mr. Haresh J. Trivedi, learned Counsel
appearing for the respondents has relied upon the
affidavit-in-reply filed by the respondents.
8.1 Mr. Haresh J. Trivedi, learned Counsel appearing for
the respondents has submitted that after going through
the record and the fact that the petitioner is involved in
serious offence of forgery by issuing bogus death
certificate in the name of the person who is alive, a
criminal proceedings initiated against the present
petitioner and the same is pending before this Court by
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way of quashing petition.
8.2 Mr. Haresh J. Trivedi, learned Counsel appearing for
the respondents has submitted that the allegations are
serious in nature and after considering the submissions
made on behalf of the petitioner during the course of the
inquiry and considering his written submission, the
corporation has considered leniency in the case of the
petitioner while imposing punishment of minor penalty
and therefore, no interference is required to be called for
in the present petition.
8.3 Mr. Haresh J. Trivedi, learned Counsel appearing for
the respondents has submitted that now it is well settled
that in the case of imposition of quantum of punishment,
the Court has very limited scope to interfere in the order
of punishment while exercising the power under Article
226 of the Constitution of India.
8.4 Mr. Haresh J. Trivedi, learned Counsel appearing for
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the respondents has also relied upon the averments made
in paragraph Nos. 6, 7 and 8 of the affidavit-in-reply
which reads as under:-
"6. I say that the petitioner was found to be involved into
the serious misconduct of issuing bogus death certificate
by sting operation conducted by the journalist of Savera
India Times by accepting bribe of Rs. 5000. Relying
upon the report of the enquiry officer criminal
complainant was lodged by the in charge Medical Officer
of Health Dr. Dilip Ansari against the concerned persons
including the present petitioner, which is awaiting it's
final outcome. However, since this Hon'ble Court has
stayed further proceedings by order passed in Misc.
Criminal Application no. 10155/2004, it's final outcome
is awaited.
Taking into consideration seriousness of the misconduct
of the petitioner, a fullfledged departmental enquiry was
conducted by the Respondent Corporation. After
following principles of natural justice, and after
providing full opportunity to the petitioner, and
examining witnesses, and relying upon the evidence
including documentary evidence, final report was
submitted by the Enquiry Officer, and thereafter lastly
the impugned order dated 17.1.2011 (Annex. R page 111
to the petition) was passed by the Municipal
Commissioner, after hearing the petitioner. Therefore
the same being passed after full fledged enquiry which
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was conducted by following due procedure prescribed
under the law, may not be interfered by this Hon'ble
Court in it's extra ordinary jurisdiction vested in it under
the Constitution of India.
7. I further say that the charges leveled against the
petitioner, charges 1 to 4 are clearly proved beyond
reasonable doubt supported with the oral as well as
documentary evidence. That the petitioner was also
given opportunity by personal hearing on 2.11.2010
finally before passing final order of punishment.
Therefore during the entire proceedings the respondent
corporation has followed due procedure of law
established under the relevant provisions of law along
with the basic and fundamental principles of service
jurisprudence. Therefore the same does not suffer from
any vices as alleged or otherwise.
8. As regards the allegations of non supply of
preliminary interim reports, I say that the final order of
awarding punishment dated 17.1.2011 is passed relying
upon the final report of the enquiry officer and not upon
the preliminary report either of Shri Bipin Shah or Shri
Dhiren Pandya. Therefore such allegations are baseless
having no importance. That the respondent corporation
has also taken into consideration carefully the reply
dated 20/8/2010 (Annex. Q) before passing impugned
order. Therefore the allegations as to non application of
mind are baseless."
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8.5 Considering the above, Mr. Haresh J. Trivedi,
learned Counsel appearing for the respondents has
prayed that the petition is devoid of merits and same
requires to be dismissed as the petitioner is not entitled
for any leniency as after considering all the facts, the
petitioner was imposed very minimum punishment and
therefore, no interference is required to be called for in
present petition.
9. I have considered the material available on record. I
have also gone through the relevant papers placed in the
petition.
10. The controversy involved in present petition is that
whether the punishment imposed by the inquiry officer
and disciplinary authority against present petitioner can
be interfered with. In my view, in normal circumstances,
it is now well settled that in the case of quantum of
punishment, this Court has very limited power and the
scope and ambit of the interference in punishment is very
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less as enunciated by the Hon'ble Apex Court and this
Court.
11. However, considering the peculiar facts of the
present case and considering the records it seems that
present petition requires interference, merely on the
ground that the Vigilance Officer appointed by the
corporation itself to inquire into the matter with regard to
allegations made against petitioner along with the others
and after going through the details and the plethora of
documents and after examining the witnesses, the
Vigilance Officer has prepared the report which is
annexed at page 147 to 188, wherein the the Vigilance
Officer has specifically come to a conclusion that against
all the 5 persons involved in so called case of the forgery
by issuing bogus death certificate in favour of the person
who is alive, there was no evidence to that effect and they
are found innocent. Further, there was a specific
averments made by the Vigilance Officer that the
corporation has not taken any action against the person
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whose prima facie involvement was found in the incident
from the record itself. Even the Inquiry Officer has come
to a specific findings that the petitioner was innocent in
the allegation made against him.
12. After considering all this facts and the report of the
Vigilance Officer appointed by the corporation, I am of
the opinion that in present case, the interference is
required to be called for. Normally, this Court does not
interfere in the findings recorded by the disciplinary
authority vis-a-vis in the case of imposition of quantum of
punishment however, considering the specific facts of the
present case and considering the fact that here the
respondent corporation itself has appointed the Vigilance
Officer and the Vigilance Officer has inquired the matter
in detailed and submitted his report of 48 pages and
thereafter, after considering all these facts and details,
the Inquiry Officer has recorded the findings to that
effect, in my opinion the order of imposition of penalty or
even stoppage of one increment is also against the
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principle of natural of justice and it is in violation of
Articles 14, 16 and 21 of the Constitution of India and
therefore, the impugned order of imposition of the
punishment of stoppage of one increment with future
effect deserves to be quashed and set aside.
13. Hence, in view of the above discussion, the
impugned order of imposition of the punishment of
stoppage of one increment with future effect is hereby
quashed and set aside.
14. It is also relevant to note herein that the petitioner is
retired from the service and therefore, the respondent
authority is hereby directed to pay all the consequential
benefits, for which the petitioner is entitled to and from
the date on which, he was imposed the penalty i.e.
3.5.2014 till the date of his retirement. Accordingly,
appropriate modification be made in his pensionary
benefit and if any retiral benefit due and payable
including the arrears is withheld by the respondent
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authority then the same be paid immediately within
period of three months from the date of receipt of the
copy of the order.
15. With the aforesaid observations, present petition is
allowed. Rule is made absolute to the aforesaid extent.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
