IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2339 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO --------------------------------------------------------- BHARATKUMAR GAJANAND VYAS Versus MAHATMA GANDHI LABOUR INSTITUTE -------------------------------------------------------------- Appearance: MR AJ YAGNIK for the Petitioner. TANNA ASSOCIATES for Respondent No. 1 Mr.Joshi, Assistant GOVERNMENT PLEADER, for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 03/09/2001 C.A.V. JUDGEMENT 1. Mahatma Gandhi Labour Institute, Ahmedabad, respondent No.1, has suspended the present petitioner on the ground that the petitioner went on hunger strike on 2nd October, 2000 by sitting at the front entrance of the institution as well as on the ground that he had refused to drive the vehicle of the Institution on 11.10.2000 on the ground that unless he was provided with Log Book, he will not drive the vehicle. On the aforesaid two grounds, the petitioner is placed under suspension since 13th August, 2000. 2. The present petitioner is serving as a driver in the respondent No.1-Institution and he is a Class III employee of the said Institution. He is serving since last 16 years on the said post. The petitioner used to drive the vehicle attached to Mr.S. Chandrasekhar, the Director General of the Institution. in the past, the petitioner had addressed certain representations in connection with certain demands. One of such representations is annexed at page 20, Annexure `B', which is addressed to the Chairman of the respondent No.1-Institution. The Labour Minister is the Chairman of the said Institution. In the said representation, the petitioner has pointed out to the Chairman that he is staying at Odhav area of Ahmedabad City and that the Director General is staying at Gandhinagar and that, in order to see that the petitioner can effectively discharge his duties, he had applied for allotment of a quarter at Gandhinagar and that, on one ground or the other, his application is not accepted and that he was deprived of getting the benefit of quarter at Gandhinagar. In the said letter, the petitioner has also raised a demand for giving uniform, which, according to him, was required to be provided to the driver. It is also further stated by him in his representation that Mr.Chandrasekhar, the Director General, was often interrupting him at the time of driving the vehicle and he himself sometimes drives the vehicle at a very excessive speed and, ultimately, if the vehicle meets with an accident, the driver can be subjected to a fine of Rs.1,000/- and imprisonment for six months. In the said representation, he has made some grievances against Mr.Chandrasekhar, the Director General. In the present proceedings, we are not concerned with the merits or otherwise of the said grievances, demands or allegations of the petitioner which he has ventilated in his representation dated 18.9.2000. Thereafter, it seems that, the petitioner sat at the entrance of the said Institution on 2nd October, 2000, at 9.00 O'clock in the morning. Ultimately, on request, the petitioner got up and went away from the said place. It is stated in the said suspension order at Annexure `A' that on request of the Chairman, the petitioner ultimately went away and that he had not remained on fast after 9.00 O'clock on 2nd October, 2000. It is stated that it cannot be said that the venue selected by the petitioner for the fast was proper. The other ground mentioned in the suspension order is that on 11.10.2000, the Director General of the Institution was required to attend the meeting at Gandhinagar, but the petitioner demanded Log Book and refused to drive the vehicle unless he was provided with the Log Book. In the suspension order, it is stated that, on the basis of the noting given by the Driver, the Log Book is required to be returned to the Assistant and the said procedure is followed since 1999 and that, accordingly, the petitioner refused to drive the vehicle in question on 11.10.2000. On the basis of the aforesaid two incidents, the petitioner was placed under suspension on the ground that the Institution is contemplating departmental enquiry against the petitioner for the aforesaid misconduct. The said suspension order is challenged by the petitioner by way of this petition. 3. Mr.Anand Yagnik, learned Advocate for the petitioner, has challenged the aforesaid suspension order on various grounds. It was argued by Mr.Yagnik that, from the facts and circumstances of the case, it cannot be said that the petitioner was guilty of misconduct. Mr.Yagnik further submitted that it is open for the employee to resort to lawful demonstration without disturbing law and order and peace. He further submitted that it is, no doubt, true that the petitioner was sitting at the entrance of the Institution on the relevant day, i.e. on 2nd October, 2000, but the moment the Chairman assured the petitioner that his demand will be considered, immediately, the petitioner got up and went away from the said place. It is also submitted by Mr.Yagnik that, therefore, there is no offence or misconduct if a person sits at the entrance of the Institution for the purpose of pressing for his legitimate demand and asks for justice from his employer. Similarly, regarding the second incident mentioned in the order, it is submitted that as per the Circular of the Institution dated 24.11.1998, which he has placed on record later on, a driver is supposed to make necessary notes after the journey is over and he has to obtain signature of the Officer and the particulars are required to be filled in, in the Log Book; otherwise, such journey will not be treated as an authorized journey and the concerned Officer will have to make the payment of the expenditure for such journey. It is also stated in the said Circular that at the end of every day, the driver will have to show the Log Book to the Officer and his signature is required to be obtained. Mr.Yagnik has relied upon Clauses (9) and (11) of the said Circular dated 24.11.1998. He, therefore, submitted that the petitioner was supposed to fill up the Log Book and after filling it, he was required to obtain the signature of the Officer concerned. He submitted that, therefore, the petitioner was following the said Circular and policy and for that purpose, he cannot be penalized or, in any case, it cannot be said that such demands on his part would constitute any misconduct. 4. Mr.Yagnik further submitted that, in any case, so far as the incident of 2nd October, 2000 is concerned, since the demand of the petitioner was not taken into account, ultimately, he resorted to a lawful demonstration of fast, which cannot be said to be a misconduct in any manner. Mr.Yagnik, therefore, submitted that this is not a case in which the petitioner was required to be placed under suspension and that it is open for the Department to proceed with the enquiry, wherein the petitioner can also lead his evidence, but it is not a case, in which, during the pendency of the enquiry, the petitioner is required to be suspended. 5. Mr.Yagnik also further submitted that, in any case, considerable time has passed since the petitioner has been placed under suspension and till today, no charge-sheet is issued to him and, therefore, the Institution should not compel the petitioner to remain under suspension for an indefinite period. In his submission, the fact that the petitioner is under suspension since last 10 months itself is sufficient punishment, and though it cannot be said that suspension is a punishment, in substance, it has resulted in punishment as the petitioner is deprived of his full salary during the intervening period. He further submitted that the Management should now take him back in service, especially when even enquiry is not started against him. Mr.Yagnik also further submitted that, in any case, if the aforesaid action of the petitioner has hurt the feeling of the Institution or that of the Director General of the Institution, the petitioner is tendering his unconditional apology. On instructions from his client, who was present in the Court at the time of hearing of the petition, he submitted that the Institution will have no cause for complaint against the petitioner in future and that the petitioner will serve sincerely and honestly, without, in any way, hurting the feelings of the Officers of the Institution. 6. Mr.Yagnik has also placed an affidavit of the petitioner on record, copy of which was given to the Advocate for respondent No.1. In the said affidavit, the petitioner has stated as under :- " ... ... ... 1. That I tender my unconditional apology if my any action has caused disrepute to the Mahatma Gandhi Labour Institute. I had no intention to malign any particular individual when I decided to express my grievances by way of non violent protest. Even then if the respondent Director General has failed (sic) that my action has hurt him then in that case I honestly say that my grievance was not against him in person but against some of his policies which at this juncture I say I might have misunderstood. I say that I have taken action of observing fast by way of protest and showing posters expressing my grievances in good faith thinking that I have fundamental right of demonstration against my employer in a peaceful and non-violent manner. If my action taken in good faith is contrary to the law of the land then I tender my unconditional apology to the State of Gujarat and to Gandhi Labour Institute. 2. I say that if my correspondence with the respected Director General of Gandhi Labour Institute and with the Government of Gujarat contain harsh feelings against any particular individual then I say that I did not do the same for any ulterior purpose. However, if I have stated something which was not called for then in that case I again tender my unconditional apology to whosoever I have hurt with my writings. ... ... ...." Under the aforesaid circumstances, it was submitted by Mr.Yagnik that the order of suspension is required to be set aside. Mr.Yagnik has also relied upon certain judgments to substantiate his say that the so-called alleged act on the part of the petitioner do not constitute any misconduct and that the petitioner should not have been suspended regarding the incidents, of which reference is made in the suspension order. 7. Mr.Yagnik also submitted that the order of the Appellate Authority is also bad in law as the Director General, who is the author of the original suspension order himself sat in appeal as he was a Member of the Executive Committee. He, therefore, submitted that the order of the Appellate Authority is also vitiated on the aforesaid ground. 8. Mr.Kerial, learned Advocate, argued on behalf of the respondents that the demand of the petitioner was totally unjustified and there was no reason for him to demonstrate at the entrance of the Institution on 2nd October, 2000. Mr.Kerial further submitted that there was no justification in any of the demands, like getting quarter at Gandhinagar, or asking for Log Book, etc., and the said demand was absolutely unjustified. Mr.Kerial further submitted that if the petitioner is taken back in service, it will give signal to other employees that even if they misbehave, they are not going to be penalized, that, ultimately, they are going to be reinstated in service and that they will be allowed to go scot-free. It was further argued by Mr.Kerial that the petitioner refused to drive the vehicle at the relevant time on absolutely irrelevant ground of getting Log Book, etc., and that because of the said conduct on his part, especially sitting at the entrance of the Institution when so many dignitaries were to remain present, he has tried to defame the Institution in the eye of the people. He submitted that, even in the past, he has written letter, in which improper language was used by him and that it is a case of grave insubordination and misconduct on his part. Mr.Kerial has also relied on the language used by the petitioner in his letter dated 18.9.2000. He submitted that the order of suspension is not an order of penalty and, therefore, it is not required to be interfered with by this Court. 9. Mr.Kerial has also relied upon the affidavit-in-reply filed by the Director General of the Institution. In paragraph 8 of the affidavit-in-reply, it is stated that the petitioner chose to observe fast on 2nd October, 2000 outside the gate of the Institute and that this act of the petitioner is, prima facie, an act unbecoming of an employee of the Institute. It is further submitted that the petitioner was aware that a function to unveil a bust of Mahatma Gandhi was scheduled on 2nd October, 2000 and that His Excellency the Governor of Gujarat had been invited to attend the function and to unveil the bust. It is further stated in the said paragraph 8 that by choosing to undertake a Fast outside the main gate of the Institute immediately before the function was scheduled to commence, the petitioner wanted to gain attention and publicity. It is also further stated in the said affidavit that the Honourable Minister of Labour, who is the President of the Institute, persuaded the petitioner to give up his fast in order to ensure that the acts of the petitioner did not become an embarrassment to the Institute. According to the deponent of the affidavit-in-reply, the petitioner, having gained the publicity which he wanted, immediately accepted the offer and ended his fast. It is stated that this act of the petitioner was a predetermined act so as to undermine the prestige and dignity of the Institution. In the affidavit-in-reply, reference is made to Section IX of the Mahatma Gandhi Labour Institute (Service) Byelaws, 1984. Sub-clause (4) of the same provides as under :- " ... ... ... IX. xxx xxx xxx (4) An employee of the Institute shall endeavour to promote the objectives of the Institute and shall not act in any manner prejudicial thereto. ... ... ...." It is also stated that the aforesaid act on the part of the petitioner in choosing to go on a fast at the main gate of the Institute on 2nd October, 2000 immediately before the scheduled commencement of the function, which was to be graced by His Excellency the Governor of Gujarat and other dignitaries, is, prima facie, an act prejudicial to the interests of the Institute. It is further stated in the affidavit-in-reply that if an employee submits a letter to the employer, seeking redressal of an alleged violation of statutory rights, and if, within 14 days, such a letter is not acted upon by the concerned authorities and if the petitioner then chooses to observe a fast with a view to bringing the employer into disrepute and gain publicity, and if, for doing such an act, the employee is suspended in contemplation of disciplinary proceedings to be initiated against him and if he challenges the same before the Court, then, the Court may, prima facie, not interfere in the petition as it would result in alarming and far-reaching consequences not only as regards the Institute, but as regards the whole State with reference to the maintenance of discipline and good conduct among the employees. Regarding the second incident of 11th October, 2000 also, it is stated that the petitioner allegedly refused to drive the car, and it is an act of insubordination. In the affidavit-in-reply, it is stated that the Director General established a system, whereby the Log Book of the vehicle is written by an Assistant in the Institute and since 1999, the Log Book had been in the possession of the Assistant. According to the deponent, still the petitioner made an issue of the same on 11th October, 2000 without any cause whatsoever and that, therefore, the same is also, prima facie, an act of insubordination. It is also stated that there was no justification in the demand for allotment of quarter at Gandhinagar and that there was no justification to raise the issue regarding supply of warm clothes for winter and seeking a decision before 2nd October, 2000. It is stated that at the relevant point of time, there was no need whatsoever for the petitioner to have raised such a demand and to have insisted on a time limit for resolution of the issue. It is stated that except levelling allegations against the Director General, there were no other exceptional demands. It is again asserted in the reply that the action of going on fast on 2nd October, 2000 was, prima facie, an act of misconduct and that there is no correlation between the demands raised by the petitioner in his letter dated 18th September, 2000 and the situation created by him on 2nd October, 2000. It is stated in paragraph 12 of the reply that at the time of hearing of the appeal, the Honourable Minister for Labour, who was acting in his capacity as Chairman of the Executive Council, had, at the end of the hearing, asked the petitioner whether he would be ready to tender an apology. The petitioner refused to tender apology before the Executive Council which was considering his appeal. Regarding the Director General remaining present at the time of hearing of the appeal, it is stated in the reply that the Director General was constrained to participate as a Member to constitute the quorum of the Appellate Committee (Executive Council), i.e., to ensure that the meeting of the Executive Council on 27th December, 2000 had the requisite quorum of four persons and that the same is permissible, for which reference is made to the decision of the Apex Court in Election Commission of India v. Subramanian Swamy, AIR 1996 SC 1810. It is also stated in the reply that the Director General did not participate in the making of the final decision of the Executive Council regarding the petitioner's appeal. Mr.Kerial also argued that the Director General remained present only in order to complete the quorum and had not participated in the discussion. It is stated that the Director General only communicated the Executive Council's decision confirming the order of suspension and that he had not taken part in the discussion and that he is not a party to the decision which is taken by the Appellate Committee. Mr.Kerial, relying upon the said affidavit-in-reply, submitted that since the petitioner committed an act of insubordination, he was rightly suspended. He, therefore, submitted that the petition deserves to be dismissed. Mr.Kerial has also cited various judgments to substantiate his say that the suspension order is not required to be interfered with by this Court. 10. I have heard Advocates on both the sides at great length. The question which requires consideration is whether the act of the petitioner on the relevant day, i.e. 2nd October, 2000, can be said to be of such a nature which can be said to be a grave act of misconduct justifying suspension order. The main ground for suspending the petitioner, considering the affidavit-in-reply, seems to be the incident of 2nd October, 2000. It is, no doubt, true that in the suspension order, there is also a reference about the incident of 11th October, 2000 regarding refusal on the part of the petitioner to drive the car unless the Log Book is given. 11. It is not in dispute that the petitioner was sitting at the entrance of the Institution on 2nd October, 2000, i.e. the day on which the Institution had organized some function and various dignitaries were to attend the said function. It is the say of the Institution that the petitioner deliberately selected the said date in order to attract the attention of the Dignitaries and that there was no justification in any of the demands and that, he should have waited for some time because immediately, within a few days, it was not expected that his demands would be satisfied by the Institution. However, in my view, sitting at the entrance of the Institution on the relevant day pressing for some demands by the employee, ipso facto, cannot be said to be a misconduct of such a nature requiring his suspension from service. One must bear in mind that the respondent-Institution is an Institution of repute and it is synonymous with the Father of the Nation, Mahatma Gandhi, who initiated the policy of non-violent resistance and insistence on truth as a means for pressing for demands. It seems that, there is an irony to resist such an act of the employee of resorting to hunger strike or going on lawful demonstration in a peaceful manner and to suspend him on that ground by the Institution, like the Mahatma Gandhi Labour Institute. It is a matter of common knowledge that Mahatma Gandhi was the pioneer and trailblazer in exhorting the world at large to resort to non-violent means in pressing for one's demands. If such an Institution opposes the action of going on hunger strike, or resorting to non-violent means of holding peaceful demonstration, and treats the said action as misconduct, then, it will sound the death-knell of all peaceful and non-violent policies for pressing for one's demands, and the Institution does not deserve to attach to it the name "Mahatma Gandhi". Considering the fact that the petitioner has also subsequently even tendered an apology and has submitted an affidavit, a copy of which is given to the other side, it was expected that some magnanimity will be shown by the respondent-Institution. This is not a case in which some personal egos were required to be brought in the picture. On the contrary, some pragmatic and humane approach was required to be adopted by the persons, who are in charge of such a noble institution. It is, no doubt, true that the petitioner should not have used the allegedly intemperate language in his letters, but, for that, as stated earlier, he has already tendered his apology and even at the time of arguments, Mr.Yagnik, under instructions of his client, has also stated that if he has hurt the feelings of the Director General, he is apologizing to him and he has also assured the Court that, in future, the Director General may not have any cause for grievance against the petitioner's conduct. In my view, simply because the petitioner, at the relevant time, failed to tender apology, when his appeal was heard, the respondent-Institution should refuse to accept the apology tendered subsequently at the time of hearing of his petition only on the ground that it is given at a belated stage. If a person wants to demonstrate peacefully and for that purpose selected a prominent place to attract the attention, it cannot be said that the selection of such place and time may constitute a misconduct. The petitioner could not have selected any other place, wherein nobody would have paid attention and, therefore, there is nothing wrong if he had selected such a place for the purpose of demonstration. I also find considerable substance in the argument of Mr.Yagnik that on assurance of the Honourable Minister that his demand will be looked into, he immediately called off his fast and left the place. This fact is also not in much dispute. In my view, therefore, selecting a particular place or a particular day for certain demands can never be said to