Gujarat High Court
Aniruddhsinh Kanaksinh Gadhavi vs Ahmedabad Municipal Corporation on 20 January, 2025
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C/SCA/13084/2024 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. 13084 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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Approved for Reporting Yes No
No
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ANIRUDDHSINH KANAKSINH GADHAVI
Versus
AHMEDABAD MUNICIPAL CORPORATION & ANR.
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Appearance:
MR SANDIP H MUNJYASARA(10781) for the Petitioner(s) No. 1
MR. MAULIN RAVAL, SR. COUNSEL with MR HAMESH C NAIDU(5335)
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
CAV JUDGMENT
1. The present Special Civil Application is filed praying for
the following reliefs :-
"A) This Hon'ble Court may be pleased to issue a
Writ of Certiorari and/or any other appropriate writ or
orders or directions be issued to quash and set aside
entire departmental inquiry initiated against the
petitioner including the termination order dated
22.08.2024 at Annexure-A (Colly) (Pg. No.19A-19E), 2 nd
(final) show-cause notice dated 29.07.2024 along with
inquiry report dated 10.06.2024 at Annexure-G (Pg.
No.76-95), charge-sheet dated 01.01.2024 at Annexure-
A (Colly) (Pg. No.20-25) etc.; AND
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B) This Hon'ble Court may be pleased to issue a
Writ of Certiorari and/or any other appropriate writ or
orders or directions be issued to quash and set aside
advertisement dated 24.08.2024 at Annexure-K
(Pg.No.155) and subsequent all proceedings/actions
/developments in this regard qua one post of the
assistant station officer; AND
C) Pending the admission, hearing and final disposal
of the present petition, this Hon'ble Court may be
pleased to stay termination order dated 22.08.2024 at
Annexure-A (Pg. No.19A-19E) and be pleased to hold
and declare that the departmental inquiry which was
initiated against the petitioner was not maintainable in
the eyes of law and further be pleased to stay
advertisement dated 24.08.2024 at Annexure-K
(Pg. No.155) and subsequent all proceedings /actions/
developments in this regard qua one post of the
assistant station officer;
D) Ad interim ex-parte relief in terms of paragraph
C) above;
E) Cost of this Petition and compensation for mental
harassment of the petitioner to be provided to the
Petitioner.
F) This Hon'ble Court may be pleased to Grant such
other and further relief(s) as deemed fit in the interest
of justice and equity."
2. The brief facts of the petitioner's case are as follows:-
2.1 The respondent Corporation, through an advertisement
dated 26.10.2018, invited applications for various posts including
the post of Station Officer, for which, the petitioner applied.
Subsequently, the petitioner was appointed as Station Officer
(Sahayak/Assistant Station Officer) on a probationary basis via
appointment order dated 28.05.2019 and joined the position on
04.06.2019. On 18.02.2022, a complaint was filed against the
petitioner, alleging misconduct. In response, the Corporation issued
a show cause notice dated 24.08.2023, accusing the petitioner of
committing fraud to secure his appointment. The petitioner replied
to the notice on 31.08.2023, denying the allegations.
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2.2 On 01.01.2024, the Corporation issued a charge-sheet
against the petitioner, initiating a departmental inquiry. The Inquiry
Officer, appointed by the Corporation, submitted a report to the
Municipal Commissioner, concluding the petitioner's misconduct.
Based on the inquiry report dated 10.06.2024, the Municipal
Commissioner issued a second and final show cause notice on
29.07.2024. Despite the petitioner's representation, the respondent
Corporation issued a termination order dated 22.08.2024,
communicated on 23.08.2024, ending the petitioner's appointment
as Assistant Station Officer. Aggrieved by the termination, the
petitioner has approached this Court through the present petition.
3. Mr. Sandip H. Munjyasara, the learned counsel
appearing for the petitioner submits that despite the directions of
the Hon'ble Court dated 09.08.2024 to the competent authority to
decide the contentions raised in the petitioner's reply, the
respondent no.1 has failed to address any of the petitioner's
submissions when passing the impugned termination order dated
22.08.2024. He submits that the termination order is arbitrary, non-
speaking, and without reasoning, merely copying and pasting
contents from the charge-sheet and without addressing the merits
of the petitioner's response.
3.1 He submits that the departmental inquiry including the
inquiry report, is flawed. It is argued that the inquiry was conducted
ex-parte in violation of principles of natural justice and without
considering crucial documents including the petitioner's replies and
representations. The Inquiry Officer allegedly failed to consider the
petitioner's application dated 07.06.2024 and other documents, and
thus rendering the inquiry report illegal and unjust.
3.2 He submits that the petitioner repeatedly raised
objections to the maintainability of the departmental inquiry and yet
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these were ignored by the respondents. The failure to address the
legal issue of non-maintainability indicates a lack of fair and
impartial consideration by the respondents.
3.3 The learned counsel for the petitioner contends that the
allegations against the petitioner do not constitute misconduct, but
rather relates to an irregularity in admission to a college, which is
outside the jurisdiction of the Corporation. Additionally, no
misconduct occurred while serving in the Corporation and there is
no evidence of any forged or fraudulent documents used by the
petitioner. The college in question has not cancelled the petitioner's
certificates and there is no legal or factual basis for the respondents
to inquire into these matters.
3.4 The petitioner asserts that the respondents violated
various provisions of the Rules of 1971 including Rule 9 as well as
the Act of 1949. The termination order being non-speaking and
issued without due consideration of the petitioner's submissions is
in violation of the statutory provisions.
3.5 He submits that the termination could adversely affect
the career of the petitioner, particularly since he has been selected
for the post of Deputy Regional Fire Officer with his name
recommended by the GPSC. The action taken by the respondents
may result in irreparable harm if interim relief is not granted.
4. Per contra, the learned senior counsel Mr. Maulin Raval
appearing for the respondents submits that the present petition
broadly challenges the inquiry conducted by the respondents and
the subsequent termination order. At the outset, it is submitted that
as per the ratio laid down by the Apex Court in several
pronouncements, this Hon'ble Court, in proceedings under Article
227 of the Constitution of India, is estopped from re-appreciating
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the evidence presented during the inquiry. The petition is filed
under Article 227 only. It is submitted that as per the Apex Court's
decisions, this Hon'ble Court should generally not interfere with
factual findings unless it finds that the findings were based on no
evidence or were wholly perverse and/or legally untenable. It is
further submitted that admittedly, there was no breach of principles
of natural justice in the departmental inquiry. He submits that the
respondent issued a public advertisement on 26.10.2018, inviting
online applications for various posts including Divisional Officer
(Serial No. 10) and for the post of Station Officer, the candidates
were required to pass the Sub-Officer course from National Fire
Service College, Nagpur. Clause 19 of the advertisement stated that
false details or certificates would result in automatic cancellation of
services. As per Ministry of Home Affairs guidelines, in National Fire
Service College, admission required either completing the Station
Officer's course, two years of service as Station Officer, or five years
as Sub-Officer. The petitioner submitted National Fire Service
College's Divisional Officer course certificate and was appointed on
probation/fixed pay with the probation period later extended by one
year. A common presenting officer was appointed for all inquiries to
expedite proceedings as noted by the inquiry officer. He submits
that the petitioner has not demonstrated any prejudice caused by
this arrangement, making the petition an attempt to challenge the
termination order passed after following due process.
5. Heard the learned counsels representing the parties and
perused the documents on record.
6. 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
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Service College, Nagpur for the Sub-officer's Course. Based on this
complaint, the petitioner was required to submit evidence
regarding the admission. The statement was subsequently recorded
and he was was served with a show-cause notice alleging illegal
admission to the NFSC, Nagpur, which warranted termination. The
petitioner was also served with a charge-sheet, accusing him of
gaining admission to the NFSC, Nagpur 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. 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 documents. This culminated in a
final show-cause notice, leading to the termination of the service by
impugned order dated 22.08.2024.
7. Notably, NFSC, Nagpur, in response to an inquiry by the
respondent Corporation, confirmed that the certificates issued to
the petitioner are valid and genuine. NFSC, as a Central Institution,
has not conducted any investigation declaring the petitioner's
admission invalid. As of now, the admissions and certificates held by
the petitioner remain 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.
8. The petitioner possesses valid qualifications, having
cleared the recruitment process for the position of Fire Station
Officer with the respondent Corporation, based on the eligibility and
necessary qualifications, including training from NFSC, Nagpur. The
Corporation initiated its inquiry based on a private complaint
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concerning the admissions, even though similar allegations are
being investigated under an FIR filed by NFSC, Nagpur, which
remains pending.
9. In the considered view of this Court, the respondent
Corporation exceeded its jurisdiction by conducting such an inquiry.
The appropriate investigation 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 admissions or 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 evidence from the
investigating agency indicating that the petitioner submitted forged
documents, the Corporation's actions were unwarranted. The
conclusions arrived at in the disciplinary proceedings are
presumptive in nature.
10. 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 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
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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 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
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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 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
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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."
11. 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 certificates, has not
declared the petitioner's admissions as based on forged documents
or revoked the certificates. Therefore, the Corporation's unilateral
action to conduct a fishing and roving inquiry into the validity of the
admissions and certificates is beyond its authority. Furthermore, the
petitioner fulfilled the eligibility conditions for the appointment,
which remain unchallenged. The charges against him lacked a
foundational basis at the time of issuing the charge-sheet.
12. 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.
13. 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.
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14. In view of the aforesaid reasons and observations, the
disciplinary proceedings initiated against the petitioner and the
termination order dated 22.08.2024 are quashed and set aside. The
Writ Petition is allowed. There shall be no order as to costs.
(ANIRUDDHA P. MAYEE, J.)
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