IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10566 of 1994 For Approval and Signature: HON'BLE MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- JJ PARMAR Versus STATE OF GUJARAT (NOTICE TO BE SERVED THRO -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 10566 of 1994 Ms. Sangeeta N. Pahwa for MR PM THAKKAR for Petitioner No. 1-12 Mr. Siraj Ghori, AGP for Respondent No. 1 .......... for Respondent No. 2-3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE H.K.RATHOD Date of decision: 10/12/2003 ORAL JUDGEMENT Heard learned advocate Ms. Pahwa for Mr. Thakkar for the petitioners and Mr. Ghori, the learned AGP who is appearing for the respondents. In this petition, the petitioners are challenging the action of the respondents in seeking to terminate their services without holding of any inquiry as well as denial of the benefits of the higher pay scale though the petitioners have completed nine years of their continuous service. Brief facts of the present petition are to the effect that the names were called from the Employment Exchange by the respondents for the post of Computer; on 3rd February, 1984, the petitioners received interview call letter from the respondents and appeared for the interview on 3rd February, 1984.The petitioners, thereafter, received appointment orders after being selected in the interview held by the respondents on various dates from 15.2.1984 to 3.5.1984. The petitioners have given details of date of interview, date of appointment and the place of appointment at Annexure-A page 11. The respondents have filed affidavit in reply wherein the respondents have not disputed the details of date of interview, date of appointment and the place of appointment at Annexure-A page 11 given by the petitioners. Thereafter, on 7th January, 1994, the petitioners made representation to the respondents for giving them benefit of higher pay scale as they have completed nine years of service. On 14th February, 1994, reply has been received by the petitioners from the respondents that the petitioners are not entitled for the benefit of higher pay scale as the inquiry is pending they would be entitled for such benefit when the inquiry is over and appointment of the petitioners is made regular. On 21st February, 1994, reply was given by the petitioners to the respondents that till date, no inquiry is pending against the petitioner and not initiated by the respondents and the appointment are regular appointment. Thereafter, on 2nd March, 1994, the respondents gave reply to the petitioners that the appointments of the petitioners are not regular appointment. On the basis of the above correspondence between the petitioners and the respondents, the petitioners reliably learnt that the respondents are not considering their appointment as regular because as per the stand of the respondents, the names of the petitioners have not been forwarded by the Employment Exchange. According to the petitioners, their names have been registered with the Employment Exchange Office and yet the respondent no.3 has been directed by respondent no.2 to terminate the services of the petitioners and, therefore, the petitioners were apprehending such threat and, therefore, filed the petition alleging that their services are likely to be terminated at any time. Initially, this Court (Coram : M.R. Calla, J.) passed the following order on 31.8.1994: "Rule returnable in six weeks. Notice as to interim relief. In the meanwhile, the services of the petitioners shall not be terminated if they are already continuing on the date of filing of this special civil application i.e. 30.8.1994. Direct Service Permitted." Therefore, in view of the aforesaid ad.interim order made by this court while admitting the petition, the petitioners have remained continued in service and even today, they are working with the respondents. Further, bare perusal of the ad.interim order made by this Court while admitting the petition makes it clear that this court has granted protection only against the termination if they were already continuing on the date of filing of the petition. Meaning thereby, this court has not granted any stay against initiation or contemplation of any inquiry against the petitioners. The petitioners have also annexed appointment orders issued in their favour by the respondents and the respondents have also not raised any dispute about such appointment orders. On behalf of the respondents, affidavit in reply has been filed by the Deputy Director (UC) Respondent NO.2 Shri P.S. Pandya on 22nd November, 1995 wherein the deponent has contended in para 4 that except petitioners no.1,2,3 and 12, the question of appointment through proper channel and employment exchange is untrue. It has also been submitted by the deponent that the competent authority pursuant to the selection process carried out intimated to Regional Employment Officer as to interview made and decision to make appointment arrived at pursuant to the list of candidates sponsored by (purported to have been sponsored by) the employment exchange authority; the employment exchange authority did not confirm to have sponsored the candidates from Sr.No.1 to 12 except No.1,2,3 and 12 and disputed the communication sponsoring the names of the persons to the authorities; the authorities examined the issue concerning to fake document sponsored by petitioner no.4,5,6,7,8,9,10 and 11 and accordingly intimated the further course of action, which is the subject matter of challenge in Special Civil Application no. 10566 of 1994 wherein ex parte ad.interim relief has been granted by this court. In para 6 of the reply, the deponent has also contended that a fake and unauthorized list of candidate was sent to the said office purported at the behest and instance which included the names of the petitioners except at sr.no.1,2,3 and 12. The deponent has also submitted that it came to the light where the office of the regional employment officer, Ahmedabad was informed about the number and names of the candidates appointed and the said authority informed vide his letter dated 1.10.1984 not to have sent such a list. The District Social Welfare Officer, Ahmedabad has also informed vide his letter dated 3.10.94 that the list earlier sent was not signed by the Head of the Office or the authorized officer. Thus, according to the deponent, the petitioners have managed to get appointments on fake and unauthorized list of candidates. The deponent has also submitted that since the petitioners are not the regular employees save and except the petitioners at sr.no. 1,2,3 and 12, they are not entitled for promotion and higher pay scale. The deponent has also submitted that as the inquiry in the matter was continued and a decision as to whether the petitioners may be considered regular or not was awaited, an interim reply was given to the petitioners. Since the petitioners have managed to get appointment on the basis of fake and unauthorized list, the appointments of the petitioners cannot be considered as regular one. The deponent has also contended that since the Regional Employment Officer, Ahmedabad is not a party, for want of joining of necessary party, the petition is required to be dismissed. On the basis of the aforesaid contentions, the deponent has prayed for dismissing the petition with costs. Rejoinder to the affidavit in reply has been filed by the petitioners wherein details have been given about the date of registration of the employment exchange card number and the xerox copy thereof has been produced on record. The averments made by the deponent in the additional affidavit in para 3 are important. Same are, therefore, reproduced as under: "3. I state that in support of the above facts, I am producing herewith copy of registration cards issued by the employment exchange at Annexure "I" collectively. I also crave leave to produce original cards before the Hon'ble Court at the time of hearing of the matter. I state that no notice is issued by the respondents and no inquiry whatsoever is initiated against the petitioners inter alia alleging that the names of the petitioners were not forwarded by the employment exchange. I deny the allegations made in the affidavit in reply by the respondent No.2 that the petitioners have managed to get appointment on the basis of fake list of candidates. " Aforesaid additional affidavit has been filed on behalf of the petitioners on 19th September, 1997 by one of the petitioners Mr. R.J. Parmar. Against the said additional affidavit, on behalf of respondents no.1 and 2, one Mr. P.S. Pandya, Deputy Director has filed further affidavit in reply wherein it has been contended in para 3 that on verification of facts, the facts were found from the fake list purported to have been concocted at the behest of the petitioners. The administration has called for the copy of the list for its confirmation with the employment exchange officer. Name of the petitioners except no.4 figures in the fake list and after verification of the facts, it has been found that all nine persons have procured employment by resorting to an illegal means and may be with the fully assistance from the employees of the commissioner and they are in close relation with the petitioners. Statement has been annexed to the reply wherein persons who have relationship with the persons appointed and the relationship with the petitioner who were working in the said office at the relevant time when the process was carried out have been pointed out. In para 7 of the said affidavit on behalf of the respondents, it has been submitted by the deponent that the proceedings were ordered to be initiated to take further steps after detecting the fraud but some how, on account of process carried out against the Additional director, it appears that the finality has not been attained and as soon as the finality was attained, some how it has been managed and thereafter the petition has been presented before the court wherein the court has granted interim relief and, therefore, inquiry has not been initiated. Along with the said further affidavit in reply, the deponent has produced certain documents on behalf of the respondents. At this juncture, one important aspect is required to be noted that one similarly situated candidate Manharlal H. Parmar whose name was also there on the same list which was forwarded by the Employment Exchange and against whom similar allegations were made, said Shri Manharlal H. Parmar filed one petition before this court wherein this Court (Coram : R.C. Mankad,J.) ordered for issuing notice pending admission to the respondent no.2 returnable on 4th January, 1985. While issuing the notice pending admission, this court also granted ad.interim relief in terms of para 6(B) of the said petition. Thereafter, said petition was admitted and this Court (Coram : I.C. Bhatt,J.) on 10th January, 1986, ordered to continue the ad.interim relief granted earlier and thereafter, said petition being special civil application no. 1 of 1984 came to be decided by this Court on 30th Jnue 2000 wherein this court rejected the said petition filed by said Shri Manharlal H. Parmar and the interim relief which had operated during the pendency of the said petition was ordered to be vacated. As a consequence thereof, services of the said candidate Shri Manharlal H. Parmar were terminated by the respondents after the result of the said petition. The petitioner in the said petition challenged the said orders dated 30th June, 2000 before the Division Bench of this Court by filing Letters Patent Appeal No. 370 of 2000 wherein the Division Bench of this Court (Coram : M.R. Calla and N.G. Nandi,JJ) on 24th July, 2001 set aside the judgment and order of the learned SIngle Judge of this Court and also directed the respondents to reinstate said candidate/petitioner Shri Manharlal H. Parmar in service with all the benefits as if the order of termination has never been passed against him. Accordingly, the Division Bench of this Court allowed the said appeal. I have perused the orders passed by the Division Bench of this Court in respect of said Shri Manharlal H. Parmar against whom same allegations were made in the similar situation and on the basis of the the apprehension, said petition was filed but the difference is to the effect that because of the result of the said petition, after rejection of the said petition, services of the said petitioner were terminated and that aspect was considered by the Division Bench of this Court. From the perusal of the averments made by the petitioner in the memo of petition, from the averments made by the deponent in the affidavit in reply filed on behalf of the respondents and the additional affidavit filed on behalf of the petitioners thereafter and the further affidavit filed by the respondents thereafter, it appears that the respondents have made certain allegations against the petitioners but it is clear and not in dispute that right from the date of appointment 15.2.1984 to 3.5.1984, 4th July, 1984 till the date, the respondents have not served any notice to the petitioners calling for explanation from the petitioners about the alleged allegations made in the reply. These facts are not in dispute. Till this date, the respondents have not initiated inquiry against any of the petitioners right from 1984 till this date and each petitioners worked with the respondents on the basis of the protection given by this court. In this petition, the petitioners are praying for protection against termination and are also challenging the action of the respondents in denying benefits of higher grade to the petitioners. When the demand was made by the petitioners before the respondents claiming benefits of higher grade, that has been denied by the respondents only on the ground that their appointments are not regular and, therefore, such benefits cannot be extended in their favour. It is necessary to be noted that while issuing rule and granting ad.interim relief, this court has granted mere protection of services in favour of the petitioners but has not issued any directions against the respondents restraining them from initiating any inquiry against the petitioners. Thus, the respondents were never restrained from initiating any proceedings or inquiries against the petitioners . What was directed by this court was that their services shall not be terminated and nothing more than that and yet the respondents have, till this date, not issued any action or proceedings or inquiry against the petitioners from 1985. Not only that but no such application has been made by the respondents before this court seeking such permission and, thus, the respondents have remained silent for this period and no efforts have been made by the respondents for initiating inquiry against the petitioners in respect of the allegations made by the respondents against the petitioners in their affidavit in reply. From the further reply, one fact is very much clear that one inquiry has been initiated by the respondents against the Additional Director and that has not attained the finality. There is no further reply as to what has happened with the said inquiry initiated against the Additional Director in respect of the said incident. It is necessary to be noted one important aspect that alongwith the additional affidavit filed by the petitioner no. 5, certain documents of employment registration number, employment exchange card registration number and the date of registration are annexed to affidavit. Said additional affidavit was filed by petitioner no.5 on 19th September, 1997 and thereafter further affidavit was filed by the respondents on 13th October, 1997. There is no denial in respect of the details given by the petitioner in the additional affidavit about the date of registration and registration number and the employment exchange card in respect of each petitioner. Thus, the respondents have not challenged the genuineness of the employment exchange card registration number of the petitioners. The respondents have not alleged against the petitioners that the list has been prepared by the petitioners and was sent by the petitioners. What is alleged by the respondents is that the fake list has been prepared at the instance or at the behest of the petitioners. How and on what basis these allegations were made is a matter of inquiry but the respondents have not initiated any such inquiry against the petitioners till this date. In view of these facts, since the respondents have not initiated any inquiry in respect of the allegations made by them against the petitioners though no prohibitory orders were passed by this court and, therefore, the petitioners are justified in apprehending that their services will be terminated by the respondents without giving any reasonable opportunity to them at any time. It is made clear that the respondents cannot terminate the services of the petitioners in respect of the allegations made by the respondents in the reply without giving reasonable opportunity to them and also without holding proper and legal departmental inquiry in accordance with law and, therefore, that action is required to be quashed and set aside. Now the question is arising that after this much period, whether the respondents are entitled to held the departmental inquiry against the petitioners when initially no efforts have been made by the respondents to initiate any type of inquiry against the petitioners. If we will consider the case of such similarly situated and identically placed employee Mr. Manharlal H. Parmar against whom similar allegations were made in the year 1984 and he apprehended termination of his services and, therefore, he filed special civil application no. 1 of 1984. Though his matter was arising out of the same and similar list, at that time, no allegations were made by the respondents against the present petitioner from 1985 to 1994. No steps were taken by the respondents against the petitioners from 1985 to 1994. Each of the petitioners worked with the respondents without any such action or difficulty or grievance by the respondents. It is only when the petitioners raised demand for higher grade in the year 1994, the respondents came forward with a plea that such benefits of higher grade cannot be extended to them as their service is not regular one and while refusing for higher grade, also moved for removing them on that ground. The respondents, at that time, alleged that the appointment of the petitioners is not regular; they are not regularly appointed employees; their names have not been sponsored by the employment exchange and it was a fake list received by the department and, therefore, as their appointment is not regular, they are not entitled for any such benefit of higher grade. Thus, only because the petitioners, after completion of nine years, raised demand for grant of higher grade, whole trouble started and the respondents decided to take action. In view of that, the petitioners apprehended that their services will be terminated by the respondents without following the procedure prescribed in law and, therefore, they approached this court and this court granted only protection as regards their service and then, again, the respondents remained silent for all these years from the date of filing of the petition till this date though they were not prevented by this court from taking action against the petitioners. Thus, if we consider it from 1985, from the date on which said Manharlal H. Parmar filed special civil application no. 1 of 1984, about 18 years have passed and if we consider it from the date on which the petitioners raised demand for grant of higher grade or from the date on which the petitioners approached this court by way of this petition, then, about more than nine years have passed and yet the respondents have not initiated any action or inquiry against the petitioners about the fake list. Admittedly the petitioners have continuously worked from the date of their appointment, more than 19 years and the respondents have not raised any grievance about the work or conduct or efficiency of the petitioners before this court in their replies. As regards this aspect, no doubt, the learned AGP has made a mention that no such prayer has been made in the petition by the petitioner that the inquiry should not be held. However, it is the duty of the court to consider the question arising from the matter when it is incidental or consequential. Once this Court held that there is reasonable apprehension in the mind of the petitioner that their services will be terminated by the respondents without holding the inquiry and once this court is of the view that such action is required to be quashed and set aside as illegal and contrary to the principles of natural justice, then the court can consider the matter for any other incidental or consequential relief. Therefore, the second immediate question would be as to whether the respondents should now be permitted to hold the departmental inquiry against the petitioners after this much period of 19 years or not. The another question arising is as to whether such permission would cause any prejudice to the petitioners in any manner whatsoever if such permission is granted after the period of about 19 years. This aspect has been examined by the Division Bench of this Court in the matter of K.B. Trivedi versus State of Gujarat reported in 2002 Lab IC 1198. In the said matter, after a period of 11 years, charge sheet has been issued to the employee and in view of the delay in issuance of the charge sheet to the employee, the Division Bench of this court came to the conclusion that that without explanation of delay, such type of charge sheet itself is bad and contrary to the principles of natural justice. Considering the facts of the present case, in the year 1985, one candidate approached this Court challenging the apprehended action of termination of his services and from 1985 to 1994, no action has been taken by the respondents for initiating inquiry or proceedings against the petitioners. Even after filing of this petition wherein protection of service alone was granted and though the respondents were admittedly not restrained from initiating the proceedings, the respondents have not initiated any proceedings and now in the year 2003, they are seeking such permission without tendering any explanation for not initiating such proceedings or inquiry for such a long period of 19 years. Considering all such similar aspects of the matter,it has been observed by the Division Bench of this Court as under in para 7 and 8 of the judgment: "7. In State of Madhya Pradesh v. Bani Singh (1990 Lab IC 1488) (supra), the charge sheet was issued in respect of certain incidents that had happened about 12 years ago. It was not the case of the department that they were not aware of the alleged irregularities but investigations were going on, according to the department.There was no satisfactory explanation for the inordinate delay in issuing the charge memo and in such circumstances, Court took the view that it would be unfair to permit the departmental enquiry to be proceeded with at that stage. In the other Judgment of the Supreme Court in State of Andhra Pradesh v. N. Radhakishan (AIR 1998 SC 1833) (supra), the incriminating report about the irregularities was made in the year 1987 and the charges were framed only in 1995. There was no explanation whatsoever for the delay in concluding the enquiry proceedings. It was nobody's case that the delinquent had, at any stage, tried to obstruct or delay the enquiry proceedings and in such circumstances, the charge memo was held to be liable to be quashed. The Supreme Court observed that; "The essence of the matter is that the Court has to take into consideration all relevant factors