Gujarat High Court
Kaizad Mehernosh Dastoor vs State Of Gujarat on 20 January, 2025
NEUTRAL CITATION
C/SCA/12721/2024 CAV JUDGMENT DATED: 20/01/2025
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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. 12721 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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KAIZAD MEHERNOSH DASTOOR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE with MR BOMI H SETHNA(5864)
for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR MAULIN RAVAL, SENIOR ADVOCATE with MR HAMESH C
NAIDU(5335) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
CAV JUDGMENT
1. The present Special Civil Application has been filed praying for
the following reliefs:
"(A) Issue a writ of Mandamus, and/or any other appropriate writ,
order or direction quashing and setting aside the order being
I.R.EST A No. 0271 dated 22.8.2024 i.e. the order of termination
of petitioner from his services, at Annexure-A to this Petition;
(B) Direct the respondent No. 5 to file an affidavit with regard to the
admission granted to the petitioner and also as regards the
genuineness of the Certificates awarded to the petitioner on
completion of the Sub Officers' Course, Station Officers' and
Instructors' Course and the Divisional Officers' Course,
undertaken by the petitioner in pursuance of the admission
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granted to the petitioner by respondent No. 5;
(C) Pending the admission, hearing and final disposal of this
petition, Your Lordships may be pleased to:
(i) Stay the execution, implementation and operation of the order
being I.R.EST A No. 0271 dated 22.8.2024 at Annexure-A to this
Petition, with all service, recruitment and promotion benefits to
the petitioner;
(ii) Direct the respondent Nos. 2 to 4 to issue No Objection
Certificate to the petitioner in order to enable the petitioner to
independently apply for a post before any other authority, in
case if necessity arises;
(D) Pass such other and further orders as may be deemed just and
proper in the facts and circumstances of the case;
(E) Award costs.
2. The brief facts of the case are that, The petitioner was
previously employed as a Shift In-charge at M/s. Vinod Fabrics, and
came to be sponsored by the company in 2014 for the Sub Officers'
Course at National Fire Service College ('NFSC' for sake of brevity),
Nagpur Which the petitioner completed with distinction. In 2015, M/
s. Vinod Fabrics sponsored him again for the Station Officers' and
Instructors' Course and the petitioner successfully completed this
course as well, earning another certificate. That in 2016, the
petitioner joined M/s. Arvind Ltd., which sponsored him for the
Divisional Officers' Course at NFSC, Nagpur and the petitioner
completed this course also with distinction, receiving the
corresponding certificate. The petitioner thereafter resigned from M/
s. Arvind Ltd. and joined Junagadh Municipal Corporation as a Fire
Officer from 7.10.2017 to 9.6.2019. Thereafter, upon issuance of
advertisement dated 26.10.2018 for the post of Station Officer by the
respondent No.2 authority, the petitioner applied for the post of
Station Officer. The petitioner was appointment in the department of
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respondent No.4 as a Station Officer vide order G.D.Est No.1/3388
dated 28.05.2019 passed by the respondent No.2. The petitioner
served as Station Officer in the Fire Department till January 2021.
However, upon issuance of another circular by the respondent No.2
authority for direct recruitment of Divisional Officer being circular
no. 03/2020-21, the petitioner had applied for the post of Divisional
Officer in the department of respondent No.4 authority. That on
18.01.2021 the petitioner was appointment in the department of
respondent No.4 as a Divisional Fire Officer vide order G.D.Est
No.1/4243 passed by the respondent No.2. A complaint dated
29.01.2021 came to be preferred by one Manhardan Gadhavi making
allegations on the petitioner that he had obtained admission in
NFSC, Nagpur on basis of false and fabricated documents and had
used clout of his father (the then Chief Fire Officer of the Ahmedabad
Fire and Emergency Services) to get employment in the Ahmedabad
Municipal Corporation as Station Officer and Divisional Officer.
Based on that complaint, a vigilance inquiry came to be conducted by
the Vigilance Department of the respondent No.2 Authority and at
the end of which, the petitioner came to be served with a charge
sheet No.101 of 2023 dated 02.01.2024 certain allegations against
him. The petitioner preferred a reply dated 06.01.2024 denying the
charges levelled against him. Thereafter, the respondent No.2
authority appointed respondent No.3 as the Inquiry Officer who
conducted the departmental inquiry. That at the end of the inquiry, a
second show cause notice i.e. a Final Show Cause Notice dated
29.07.2024 came to be served upon the petitioner on 01.08.2024
wherein, the respondent No.3 discharged the petitioner from all the
allegations of the charge sheet except for the allegation pertaining to
fact that the petitioner did not hold the requisite experience criteria
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established by the NFSC, Nagpur for the courses undergone by the
petitioner. That on 05.08.2024, the petitioner had submitted a brief
reply to the Final Show Cause Notice. The petitioner, being
aggrieved by the said Final Show Cause Notice of termination dated
29.7.2024, had preferred a Special Civil Application No.11552 of
2024 challenging the same, before this Court, wherein, this Hon'ble
Court vide order dated 06.08.2024, directed the respondent
authorities that in the event if any adverse order is passed against
the present petitioner, then the same would not come into
implementation for a period of 15 days from the date of receipt of
such order by the petitioner. However, the respondent No.2 issued
the order of termination of the petitioner from the services on
22.08.2024. Being aggrieved and discontented by the impugned
order of termination dated 22.08.2024, the petitioner has
approached this Hon'ble Court by way of filing the present Special
Civil Application.
3. Learned senior counsel Mr. Shalin Mehta, assisted by learned
counsel Mr. Bomi Sethna for the petitioner, submits that the
petitioner has been exonerated from all charges except for one
related to his admission to NFSC, Nagpur, which is beyond the
authority of Respondent Nos.2 and 3. The termination of the
petitioner is therefore an abuse of power. The eligibility criteria for
his admission, which the petitioner fulfilled, have not been disputed
by NFSC or the relevant authorities. A police investigation into false
sponsorships found no evidence against the petitioner, and the
Ahmedabad Municipal Corporation confirmed that his documents
were genuine. Respondents Nos.2 and 3 wrongly overreached their
authority by questioning the petitioner's eligibility based on
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experience criteria that fall under NFSC's jurisdiction. The
petitioner's admission was legitimate, and the allegations of misuse
of influence or improper admission have been disproven. Since no
violation of recruitment criteria occurred, the termination is
unjustified. The petitioner has served with integrity and bravery, and
his termination would harm the fire department. The petitioner prays
to quash the Final Show Cause Notice and charge sheet, as they are
based on unfounded and jurisdictionally invalid claims, and to protect
the petitioner's career and integrity.
4. Per contra, Mr. Maulin Raval, learned Senior Counsel for the
respondent submits that the petition challenges the inquiry
conducted by the respondent, asserting that the inquiry followed due
process and natural justice. The petitioner, originally appointed as
Station Fire Officer in 2019 and later promoted to Divisional Fire
Officer, failed to fulfill the required experience criteria for admission
to the NFSC. Despite being asked to provide documentation or an
exemption from the experience requirement, the petitioner failed to
produce any response. During the inquiry, the petitioner was given
ample opportunity to cross-examine witnesses and provide evidence.
The petitioner's admission to NFSC was found to be based on
misrepresentation, fraud, or forgery, making it void ab initio. As per
the law, the petitioner cannot claim any relief based on a fraudulent
admission. The respondent adhered to the principles of natural
justice and provided adequate opportunities during the inquiry. The
petitioner's failure to prove the fraudulent nature of his admission
justify the dismissal of the petition. The jurisdiction of the High Court
under Article 227 is restrictive and does not allow re-appreciation of
evidence. He, therefore, urged to dismiss the petition.
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5. In rejoinder, learned senior counsel Mr. Shalin Mehta submits
that the petitioner challenges the termination order dated
22.08.2024 on the grounds of arbitrariness and lack of authority by
Respondent No.2. The disciplinary proceedings were initiated outside
the jurisdiction of Respondent No. 2, and no evidence of false
documents or misrepresentation by the petitioner was found. The
petitioner's admission to NFSC was never shown to be fraudulent or
invalid. Despite repeated requests, the petitioner was denied crucial
documents that could have supported his case, and the inquiry
process was unfair. The petitioner was denied a proper opportunity
for cross-examination, with witnesses providing evasive written
responses instead of direct answers. The petitioner's admission and
certificates from NFSC remain valid, and no misconduct was
committed. The respondent's actions appear prejudiced and show
malafide intentions, as the petitioner has a strong service record and
is an asset to the fire department. The disciplinary proceedings are
fundamentally flawed, and Respondent No. 2 lacks the authority to
terminate the petitioner based on the issues raised. He submitted
that the Hon'ble Supreme Court in case of Oryx Fisheries Private
Ltd. Vs. Union of India & Ors. reported in 2010 (13) SCC 427 has
also specifically held that at "the show cause notice cannot be read
hyper-technically and it is well settled that it is to be read
reasonably. But one thing is clear that while reading a show-cause
notice the person who is subject to it must get an impression that he
will get an effective opportunity to rebut the allegations contained in
the show cause notice and prove his innocence. If on a reasonable
reading of a show-cause notice a person of ordinary prudence gets
the feeling that his reply to the show cause notice will be an empty
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ceremony and he will merely knock his head against the
impenetrable wall of prejudged opinion, such a show cause notice
does not commence a fair procedure especially when it is issued in a
quasi- judicial proceeding under a statutory regulation which
promises to give the person proceeded against a reasonable
opportunity of defence."
6. Learned senior counsel Mr. Shalin Mehta further submits that
there is no dispute regarding the petitioner's admission to NFSC,
Nagpur, as Respondent No.5 has found no fault with it. The
petitioner's entry into NFSC was legal, and his admission and
certificates were valid, leading to his appointment in AMC on merit.
No disciplinary issues arose during his service until a complaint was
filed by Mr. Manhardan Gadhavi, a suspended employee with a
personal vendetta against the petitioner's father. The complaint,
made after the father's retirement, is malicious and revenge-driven.
Despite this, the petitioner was entrusted with additional duties as
Chief Fire Officer of Gandhinagar Municipal Corporation, reflecting
his competence. The complaint lacks merit, and there is no evidence
that the petitioner obtained his certificates through influence.
7. Having heard the learned Senior Counsels representing the
parties and after perusing the documents on record, the following
observations are made.
8. The departmental proceedings originated from a complaint
filed by the complainant to the Deputy Municipal Commissioner
(Vigilance). The complaint alleged that the petitioner had
fraudulently secured admission to the National Fire Service College
('NFSC' for sake of brevity), Nagpur for the Sub-officer's Course.
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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, accusing him of
gaining admission to the NFSC using bogus or fabricated
sponsorship from private and government organization, ultimately
leading to the issuance of Sub-officer's certificate. Following this,
departmental proceedings were initiated, and the petitioner
participated in the inquiry. The Inquiry Officer's report dated
10.6.2024 concluded that the charges were proven and that the
petitioner had wrongfully gained admission to the Sub-officer's
Course by submitting false sponsorship letter. This culminated in a
final show-cause notice, leading to the termination of his services via
an impugned order dated 22.8.2024.
9. 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, as a Central Institution, has
not conducted any investigation declaring the petitioner's admission
invalid. As of now, the admission and certificate held by the
petitioner remain valid. While allegations of a scam concerning
admissions to NFSC, Nagpur, during 2012-2016 is under
investigation by local police, the petitioner has not been named as
accused in this matter, nor has any finding implicated his
involvement.
10. The petitioner possesses valid qualifications, having cleared
the recruitment process for the position of Fire Station Officer with
the respondent Corporation, based on his eligibility and necessary
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qualifications, including training from NFSC, Nagpur. The
Corporation initiated its inquiry based on a private complaint
concerning his admissions, even though similar allegations are being
investigated under an FIR filed by NFSC, Nagpur, which remains
pending.
11. 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 petitioner's documents are in their custody. The
Corporation could only have initiated disciplinary proceedings if
NFSC, Nagpur, had invalidated the admission or certificate. NFSC's
communication confirms the certificate's validity and the
unavailability of the original documents due to their custody with the
investigating agency. In the absence of evidence from the
investigating agency indicating that the petitioner submitted forged
documents, the Corporation's actions were unwarranted.
12. 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 that unless an act or
omission is prescribed as misconduct under the Certified Standing
Orders or service regulations, an employer cannot punish a workman
for it. The relevant observations of the Hon'ble Apex Court are
integral to the legal reasoning herein. Paragraphs 4 and 5 of the said
judgment read 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
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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 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, 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 industrial establishment, and that these
terms and conditions of industrial employment should be well-established
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:
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"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 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 none-the-less be a misconduct punishable as such. We
are unable to accept this view of law and it has to be rejected."
13. 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,
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Nagpur- the institution that issued the certificate has not declared
the petitioner's admission as based on forged documents or revoked
his certificate. Therefore, the Corporation's unilateral action to
conduct a fishing and roving 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 the petitioner lacked a
foundational basis at the time of issuing the charge-sheet.
14. 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
ab initio, untenable in the absence of a 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.
15. 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 to determine whether a candidate's admission was obtained
through fraudulent means and to revoke the certificate accordingly.
16. Thus, the disciplinary proceedings initiated against the
petitioner 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.)
OMKAR
