Gujarat High Court
Om Bipin Jadeja vs Ahmedabad Municipal Corporation on 20 January, 2025
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Reserved On : 24/09/2024
Pronounced On : 20/01/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12696 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
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Approved for Reporting Yes No
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OM BIPIN JADEJA
Versus
AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MR SHALIN A. MEHTA, SR. COUNSEL WITH MR KM ANTANI(6547) for the
Petitioner(s) No. 1
MR MAULIN RAVAL, SR. COUNSEL, WITH MR HAMESH C NAIDU(5335)
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
CAV JUDGMENT
1. Draft Amendment is allowed. Necessary amendment shall
be carried out forthwith.
2. In this Special Civil Application, the petitioner has prayed
for the following relief:
"9(A) This Hon'ble Court be pleased to admit and allow this petition.
(B) This Hon'ble Court be pleased to issue a writ of certiorari and/or
any other appropriate writ, order or direction and consequently quash
the impugned charge-sheet dated 01.01.2024, the inquiry report dated
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10.06.2024, and the impugned order dated 22.08.2024 at Annexure-A.
BY WAY OF DRAFT AMENDMENT 9(B) (i) This Hon'ble Court be pleased
to issue a writ of certiorari and/or any other appropriate writ, order or
direction and consequently quash the impugned agenda notice at
ANNEXURE W to the effect that it warrants an action of filling up of
vacancy arisen due to the termination of the petitioner.
(C) During the pendency hearing and final disposal of this petition, this
Hon'ble Court be pleased to stay implementation, execution and
operation of the impugned order dated 22.08.2024 at Annexure-A and
direct the Respondent to restore the petitioner to his post enabling his
active service.
BY WAY OF DRAFT AMENDMENT 9 (C) (i) During the pendency hearing
and final disposal of this petition, this Hon'ble Court be pleased to stay
implementation, execution and operation of the impugned agenda notice
at Annexure-W and a further direction to the Respondent to keep the
post held by the petitioner vacant.
(D) This Hon'ble Court be pleased to grant ex-parte ad-interim relief in
terms of Para.9(C) may be granted."
3. The brief facts of the petitioner's case is that, the petitioner
was initially appointed as a Fire Officer with the Gujarat
Industrial Development Corporation, Ankleshwar, on a
contractual basis from 2007 to 2009, followed by employment as
Fire Safety Officer with Gujarat Floro Chemical Ltd. from 2009 to
2011. On 24.07.2012, he joined Vadodara Municipal
Corporation as Station Fire Officer through direct recruitment
and completed the Divisional Fire Officer course from National
Fire Service College ('NFSC' for sake of brevity), Nagpur, in 2016.
The respondent corporation advertised recruitment for the post
of Divisional Fire Officer on 11.11.2020, and the petitioner was
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appointed to the post on 18.01.2021 after selection. The
petitioner successfully completed his probation on 15.03.2022.
The respondent corporation, on 30.11.2022, issued a notice
requiring evidence of his admission to NFSC, Nagpur.
Subsequently, on 08.12.2022, the petitioner's statement was
recorded. On 24.08.2023, a show cause notice was issued
alleging irregularities in his NFSC, Nagpur admission. Despite
his reply dated 31.08.2023, an inquiry conducted under Rule 9
of the 1971 Rules concluded by report dated 10.06.2024. The
respondent corporation, based on the inquiry report, issued a
final show cause notice on 29.07.2024. Aggrieved by the same,
the petitioner filed Special Civil Application No. 11895 of 2024,
challenging the inquiry report, charge-sheet dated 01.01.2024,
and show cause notice. By order dated 09.08.2024, this Court
directed the respondent corporation to consider the petitioner's
representation before passing a final order. The respondent
corporation issued a termination order dated 22.08.2024.
Aggrieved by the charge-sheet, inquiry report, and termination
order, the petitioner has filed the present Special Civil
Application seeking appropriate reliefs.
4. Mr. Shalin Mehta, learned Senior Counsel appearing for
the petitioner submits that the petitioner challenges the order
passed under Section 56 of the Gujarat Provincial Municipal
Corporation Act, 1949, arguing that it violates the directives of
this Court in SCA No. 16166 of 2023, which required
prosecution under the Gujarat Civil Services (Discipline and
Appeal) Rules, 1971. The petitioner claims that the corporation
failed to consider his representations, ignored jurisdictional
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issues, and conducted biased and unfair inquiry proceedings,
including dismissing objections regarding procedural lapses. The
charge against the petitioner, alleging obtaining fraudulent
admission to the NFSC, Nagpur lacks evidence and relevance to
his appointment as Divisional Officer, as he met the experience
criterion. Additionally, the FIR filed by NFSC, Nagpur which is
still under investigation, does not implicate the petitioner. The
petitioner contends that the prosecution is based on a complaint
from a questionable source, Mustafa Musa Patel, whose own
credentials are in doubt. He further argues that the proceedings
were a mere formality, with a premeditated intent to terminate
his employment, highlighting discriminatory treatment compared
to other officers in similar situations. The petitioner therefore
prays to quash the impugned order and proceedings due to bias,
procedural violations, malafide intent and lack of jurisdiction.
5. Per contra, Mr. Maulin Raval, learned Senior Counsel for
the respondent submits that the petition challenges the inquiry
process, with the petitioners claiming no breach of natural
justice. The respondent corporation issued a public
advertisement in 2018 for the position of Divisional Officer,
requiring candidates to have completed the Sub-Officer course
from NFSC, Nagpur. The petitioners were appointed based on
completion certificates from NFSC, Nagpur but an investigation
revealed that the petitioners secured admission through
fraudulent means. The Gujarat State Civil Defense and Vadodara
Municipal Corporation confirmed they did not sponsor the
petitioners, undermining their eligibility. Additionally,
discrepancies in sponsorship letters suggest possible forgery.
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The petitioners' admission is therefore considered void. Despite
this, the respondent followed due process by conducting an
inquiry and issuing termination orders. The petitioners' claims
are seen as an attempt to challenge the termination, with the
inquiry following natural justice principles despite the admission
of misconduct. It is argued that any appointment obtained
through fraud is void, and the petitioners cannot seek equitable
relief.
6. In rejoinder, Mr. Shalin Mehta, learned Senior Counsel for
the petitioner submits that the jurisdiction of the respondent
corporation to prosecute them departmentally is being wrongly
questioned by the respondent. The petition seeks to challenge
the jurisdiction, not the re-appreciation of evidence, as alleged
by the respondent. It is submitted that the charge related to
their admission to NFSC, Nagpur does not constitute
"misconduct" as defined under applicable rules, and the
respondent failed to follow the Court's directive to conduct the
inquiry under the Discipline and Appeal Rules. The petitioner
highlights that the qualifications from NFSC, Nagpur are
genuine, and no forgery has been proven. The efforts made by
the respondent's Vigilance Department to verify sponsorship
details are irrelevant to the jurisdictional issue. The petitioner
argues that the respondent's reliance on vague allegations of
forgery and a presumptive charge is legally unfounded and does
not justify departmental prosecution. Therefore, the petition
should be allowed, as the respondent's actions violate the
directives of the Court and lack legal basis.
7. Mr. Maulin Raval, learned Senior Counsel for the
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respondent in sur-rejoinder submits that the respondent refutes
the petitioner's claim that no action has been taken against 16
other Fire Department personnel, stating that investigations are
ongoing against 18-19 personnel, including those named by the
petitioner. The respondent further asserts that documents were
provided to the petitioner during the inquiry, including RTI
responses from 2005, 2014, 2020, and 2022, showing that the
petitioner was never sponsored by the Gujarat State Civil
Defence for the NFSC, Nagpur course. Additionally, a certificate
dated 20.06.2023 confirmed that the petitioner was not
sponsored, and had only worked on an honorarium basis, which
does not equate to normal employment. The petitioner's claim of
clearing the course in 2005 is contradicted by an engagement
letter dated 13.02.2008. The respondent argues that the
petitioner's statements are inconsistent and that the writ petition
should be dismissed.
8. Heard the learned Senior Counsels representing the parties
and perused the documents on record.
9. The departmental proceedings originated from a complaint
by one Mustafabhai Musabhai Patel to the Deputy Municipal
Commissioner (Vigilance). The complaint alleged that the
petitioner had fraudulently secured admission to the National
Fire Service College, Nagpur for the Sub-officer's Course. Based
on this complaint, the petitioner was required to submit evidence
regarding his admission. His statement was subsequently
recorded, and he was served with a show-cause notice alleging
illegal admission to the NFSC, Nagpur, which warranted his
termination. The petitioner was also served with a charge-sheet,
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accusing him of gaining admission to the NFSC, Nagpur using
bogus or fabricated sponsorships from private and government
organizations, ultimately leading to the issuance of Sub-officer's
certificates. Following this, departmental proceedings were
initiated, and the petitioner participated in the inquiry. The
Inquiry Officer's report dated 10.06.2024 concluded that the
charges were proven and that the petitioner had wrongfully
gained admission to the Sub-officer's Course by submitting false
sponsorship letters. This culminated in a final show-cause
notice, leading to the termination of his service by the impugned
order dated 22.8.2024.
10. Notably, NFSC, Nagpur, in response to an inquiry by the
respondent Corporation, confirmed that the certificate issued to
the petitioner is valid and genuine. NFSC, Nagpur as a Central
Institution, has not conducted any investigation declaring the
petitioners' admission invalid. As of now, the admission and
Certificate held by the petitioner remains valid. While allegations
of a scam concerning admissions to NFSC, Nagpur, during 2012-
2016 are under investigation by local police, the petitioner has
not been named as accused in this matter, nor has any finding
implicated his involvement.
11. The petitioner possesses valid qualifications, having
cleared the recruitment process for the position of Divisional Fire
Officer with the respondent Corporation, based on eligibility and
necessary qualifications, including training from NFSC, Nagpur.
The Corporation initiated its inquiry based on a private
complaint concerning his admission, even though similar
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allegations are being investigated under an FIR filed by NFSC,
Nagpur, which remains pending.
12. In the considered view of this Court, the respondent
Corporation exceeded its jurisdiction by conducting such an
inquiry. The appropriate investigative authorities are already
probing the allegations, and the petitioners' documents are in
his custody. The Corporation could only have initiated
disciplinary proceedings if NFSC, Nagpur, had invalidated the
admission or the certificates. NFSC's communication confirms
the certificates' validity and the unavailability of the original
documents due to their custody with the investigating agency. In
the absence of any evidence from the investigating agency
indicating that the petitioner had submitted forged documents,
the Corporation's actions were unwarranted. The conclusions
arrived at in the Disciplinary Proceedings are presumptive in
nature.
13. The Hon'ble Apex Court in the case of Rasiklal Vaghajibhai
Patel v. Ahmedabad Municipal Corporation and Another reported
in (1985) 2 SCC 35 has held and observed in paragraphs 4 and 5
as under:-
"4. The High Court while dismissing the petition held that even if A
the allegation of misconduct does not constitute misconduct amongst
those enumerated in the relevant service regulations yet the employer
can attribute what would otherwise per se be a misconduct though not
enumerated and punish him for the same. This proposition appears to
us to be startling because even though either under the Certified
Standing Orders or service regulations, it is necessary for the employer
to prescribe what would be the misconduct so that the
workman/employee knows the pitfall he should guard against. If after
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undergoing the elaborate exercise of enumerating misconduct, it is left
to the unbridled discretion of the employer to dub any conduct as
misconduct, the workman will be on tenterhooks and he will be
punished by ex post facto determination by the employer. It is a well-
settled canon of penal jurisprudence-removal or dismissal from service
on account of the misconduct constitutes penalty in law-that the
workmen sought to be charged for misconduct must have adequate
advance notice of what section or what conduct would constitute
misconduct. The legal proposition as stated by the High Court would
have necessitated in depth examination, but for a recent decision of this
Court in Glaxo Laboratories v. The Presiding Officer, Labour Court
Meerut & Ors.(1) in which this Court specifically repelled an identical
contention advanced by Mr. Shanti Bhushan, learned counsel who
appeared for the employer in that case observing as under:
"Relying on these observations, Mr. Shanti Bhushan urged that
this Court has in terms held that there can be some other misconduct
not enumerated in the standing order and for which the employer may
take appropriate action. This observation cannot be viewed divorced
from the facts of the case. What started in the face of the court in that
case was that the employer had raised a technical objection ignoring
the past history of litigation between the parties that application under
Sec. 33A was not maintain able. It is in this context that this Court
observed that the previous action might have been the outcome of some
misconduct not enumerated in the standing order. But the extracted
observation cannot be elevated to a proposition of law that some
misconduct neither defined nor enumerated and which may be believed
by the employer to be misconduct ex post facto would expose the
workman to a penalty. The law will have to move two centuries back
ward to accept such a construction. But it is not necessary to go so far
because in Salem Erode Electricity Distribution Co. Ltd. v. Salem Erode
Electricity Distribution Co. Ltd. Employees Union, (1) this Court in terms
held that the object underlying the Act was to introduce uniformity of
terms and conditions of employment in respect of workmen belonging to
the same category and discharging the same or similar work under an
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industrial establishment, and that these terms and conditions of
industrial employment should be wellestablished and should be known
to employees before they accept the employment. If such is the object,
no vague undefined notion about any act, may be innocuous, which
from the employer's point of view may be misconduct but not provided
for in the standing order for which a penalty can be imposed, cannot be
incorporated in the standing orders. From certainty of conditions of
employment, we would have to return to the days of hire and fire which
reverse movement is hardly justified. In this connection. we may also
refer to Western India Match Company Ltd v. Workmen(2) in which this
Court held that any condition of service if inconsistent with certified
standing orders, the same could not prevail and the certified standing
orders would have precedence over all such agreements. There is really
one interesting observation in this which deserves noticing Says the
Court:
"In the sunny days of the market economy theory people
sincerely believed that the economy law of demand and supply in the
labour market would settle a mutually beneficial bargain between the
employer and the workman Such a bargain, they took it for granted,
would secure fair terms and conditions of employment to the workman.
This law they venerated as natural law. They had an abiding faith in
the verity of this law. But the experience of the working of this law over
a long period has belief their faith."
Lastly we may refer to Workmen of Lakheri Cement Works Ltd.
Associated Cement Companies Ltd. This Court repelled the contention
that the Act must prescribe the minimum which has to be prescribed in
an industrial establishment, but it does not exclude the extension other
wise. Relying upon the earlier decision of this Court in Rohtak Hissar
District Electricity Supply Co. Ltd. v. State of U.P., the Court held that
everything which is required to be prescribed with precision and no
argument can be entertained that something not prescribed can yet be
taken into account as varying what is prescribed. In short it cannot be
left to the vagaries of management to say ex post facto that some acts
of omission or commission nowhere found to be enumerated in the
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relevant standing order is none-the-less a misconduct not strictly falling
within the enumerated misconduct in the relevant standing order but
yet a misconduct for the purpose of imposing a penalty. Accordingly,
the contention of Mr. Shanti Bhusan that some other act of misconduct
which would per se be an act of misconduct though not enumerated in
S.O. 22 can be punished under S.O. 23 must be rejected.
It is thus well-settled that unless either in the Certified Standing
Order or in the service regulations an act or omission is prescribed as
misconduct, it is not open to the employer to fish out some conduct as
misconduct and punish the workman even though the alleged
misconduct would not be comprehended in any of the enumerated
misconducts.
5. The High Court fell into error when is observed that:
"The conduct of the petitioner in suppressing the material facts
and misrepresenting his past on the material aspect cannot be said to
be a good conduct. On the contrary it is unbecoming of him that he
should have deliberately suppressed the material fact and tried to
obtain employment by deceiving the Municipal Corporation. It is clearly
a misconduct "
After thus holding that the suppressio very and suggestio false
would constitute misconduct, the High Court held even if it does not fall
in any of the enumerated misconducts, yet for the purpose of service
regulation, it would nonethe-less be a misconduct punishable as such.
We are unable to accept this view of law and it has to be rejected."
14. The learned counsel for the respondent Corporation has
not provided any evidence demonstrating that the alleged act
constitutes 'misconduct' under the applicable rules and
regulations. NFSC, Nagpur, the institution that issued the
certificate has not declared the petitioners' admissions as based
on forged documents or revoked his certificate. Therefore, the
Corporation's unilateral action to conduct a fishing and roving
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inquiry into the validity of the admission and certificate is
beyond its authority. Furthermore, the petitioner fulfilled the
eligibility conditions for his appointment, which remain
unchallenged. The charges against him lacked a foundational
basis at the time of issuing the charge-sheet.
15. The respondent Corporation's argument, as advanced by
learned counsel Mr. Maulin Raval, that any appointment or
admission secured through misrepresentation, fraud, or forgery
is void ab initio, is untenable in the absence of its determination
by NFSC, Nagpur, to that effect. The Corporation's assumption of
authority to invalidate the admission and certificate is
impermissible without explicit findings from the issuing
institution.
16. In conclusion, the disciplinary proceedings and the
subsequent termination order are beyond the jurisdiction,
authority, and domain of the respondent Corporation. It is
within the exclusive purview of NFSC, Nagpur to determine
whether a candidate's admission was obtained through
fraudulent means and to revoke the certificate accordingly.
17. In view of the aforesaid reasons and observations, the
disciplinary proceedings initiated against the petitioners and the
termination order dated 22.8.2024 are quashed and set aside.
The writ petition is allowed. There shall be no order as to costs.
Sd/-
(ANIRUDDHA P. MAYEE, J.)
KAUSHIK D. CHAUHAN
