SCA/1034/1999 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1034 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KAPADVANJ NAGARPALIKA & 1 - Petitioner(s) Versus MUKUNDBHAI ISHWARBHAI BRAHMBHATT & 4 - Respondent(s) ========================================================= Appearance : MR VC DESAI for Petitioner(s) : 1 - 2. MR NAYAN PAREKH FOR MR AJ YAGNIK for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2,4 - 5. MR APURV DAVE ASST. GOVERNMENT PLEADER for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 21/04/2008 ORAL JUDGMENT 1. This petition under Article 226 and 227 of the Constitution of India is filed against the judgment SCA/1034/1999 2/16 JUDGMENT and order dated 4.1.1999 with a prayer to quash and set aside the compromise at Annexure 'C' dated 29.7.1998, by which, it was agreed upon between the then President of the Municipality-respondent No.4 and respondent No.1 to reinstate respondent No.1 from the date of order of dismissal without backwages by considering the service of the petitioner as continuous. 2. Since the above compromise dated 29.7.1998 was placed before the Tribunal by recording consent of all the parties and taking the pursis and affidavit filed by the President of Municipality and the applicant parties were directed to act in accordance with the terms of the settlement contained in the pursis of the applicant on 29.7.1998 and the affidavit-in-reply of the President of the Municipality filed on 4.1.1999. 3. The petitioner No.1 is a Kapadvanj Municipality constituted under the Gujarat Municipality Act, 1963 and respondent No.1 herein was working as a Principal of the Municipality High School run and managed by the Municipality since 12.7.1984. Respondent No.4 was previously President of Kapdvanj Municipality from 8.1.1998 to 7.1.1999. Though served, through out the proceedings before this Court, respondent NO.4 has not remained present. 4. It is the case of the Municipality that while respondent No.1 was serving as a Principal of M.P. SCA/1034/1999 3/16 JUDGMENT Municipal High School, came to be dismissed from service by order dated 6.5.1991 after following due procedure as envisaged under Discipline and Appeal Rules, and the said proposal/decision was sent for approval to District Education Officer, District Kheda on 6.5.1991 as required under Section 36 of the Act and accordingly the above proposal came to be approved on 22.6.1991. 5. Being aggrieved and dissatisfied by the aforesaid order of dismissal, respondent No.1 herein preferred an Application No.424/91 before the Gujarat Secondary Education Tribunal raising contentions factually, as well as, legally and thereafter, as stated earlier upon filing a pursis by the applicant dated 29.7.1998 and affidavit-in-reply filed by the then President of the Municipality on 4.1.1999, the Tribunal passed the impugned order which is the subject matter of challenge in this petition. 6. Shri V.C.Desai, learned advocate for the petitioner has challenged the order passed by the Tribunal on 4.1.1999 and the compromise dated 29.7.1998 on the ground that the compromise arrived at between the respondent No.1 and respondent No.4 (applicant and opponent No.1 of the application No.424/91 before the Tribunal) as collusive and without authority of law, inasmuch as, respondent NO.4 had no authority to enter into the compromise dehors the provisions of the Gujarat Municipalities Act, 1963 and Rules made thereunder. According to SCA/1034/1999 4/16 JUDGMENT Mr. Desai, the President of the Municipality had no power as he was not authorised to do so in absence of any resolution passed by the General Board. It is next contended that respondent NO.4 the then President had appeared as an advocate of respondent No.1 in Criminal Case Nos.564 and 565 of 1991 and the above criminal case had direct baring on the subject matter of the case pending before the Tribunal. Thus, there was no urgency or any administrative exigency, which require respondent No.4 to enter into compromise without there being any specific authority conferred upon him by the Municipality. Lastly, it was contended that the above collusive action on the part of the then President of the Municipality was hurriedly taken since the term of the President and different committees was expiring on 7.1.1999 and new election was to be held on 5.1.1999. The above mentioned circumstances indicate lack of bonafides on the part of the President of the Municipality and, therefore, prayer to quash and set aside. The order of the Tribunal dated 4.1.1999 which is solely based on the pursis of compromise and affidavit-in-reply of respondent Nos.1 and 4 may kindly be granted. 7. Shri Nayan Parekh, learned advocate for Shri A.J.Yagnik has raised various contentions opposing this petition and submitted that no relief as claimed be granted to the petitioner, inasmuch as, according to learned advocate for the respondent the compromise arrived at between the applicant i.e. respondent No.1 herein and respondent No.4 was bonafide and based on SCA/1034/1999 5/16 JUDGMENT correct assessment of the circumstances by the then President so that the Municipality later on may not be saddled with financial liability in the form of backwages that may be awarded to the respondent NO.1, particularly Criminal Case NO.565/1991 filed against respondent NO.1-Principal based on similar charges that of departmental inquiry, respondent NO.1 came to be acquitted for the charges under sections 406, 420, 468 and 471 of IPC. Not only that but according to learned advocate for the respondent even the then Chief Officer and Chairman of the High School Committee found respondent No.1 an upright Principal. A declaration was made by the then Chief Officer that charges levelled against the respondent No.1 were baseless and, therefore, the action of the President- respondent No.4 herein on filing an affidavit-in- reply was just and proper. 7.1. Shri Parekh, learned advocate appearing for the respondent NO.1 further submitted that no doubt it may be true that respondent NO.4 appeared as an advocate for respondent NO.1 in a criminal case pending before the competent court of law but later on he had withdrawn his appearance from the above criminal case on his being elected as President of the Municipality. Learned advocate for the respondent has relied on the resolution of 26.7.1998 passed by the Education Committee of Municipality of Kapadvanj, by which, respondent NO.4-President was authorized to enter into compromise and take appropriate action. Learned advocate has also drawn SCA/1034/1999 6/16 JUDGMENT attention of this Court to the provisions of Section 45 of the Gujarat Municipalities Act and submitted that in a given situation it is open for the President to exercise power under the provision of the Act and, therefore, affidavit filed by the respondent No.4 was in consonance with above statutory power and exercise of such power bona fide for protecting the interest of the Municipality cannot be said to be illegal in any manner and, therefore, direction given by the Tribunal in order dated 4.1.1999 is just and proper and do not suffer from vice of any illegality which deserves interference of this Court in exercise of power under Article 226 and 227 of the Constitution of India. 8. Learned advocate for respondent No.1 has heavily relied on powers of the Tribunal to review its own order and the decision of this Court reported in 1996(2) GLH 1064 in the case of (Smt. Chandramati D. Thakor vs. Jayantilal Dahyalal Jani and Anr. and submitted that the Tribunal has power of review under Rule 14 read with provisions of the Code and section 39(6) (7) (8) and (9) of Gujarat Secondary Education Tribunal (Procedure) Order, 1947. Learned advocate for respondent No.1 submits that this petition under Article 226 and 227 of the Constitution of India is filed without exhausting the above provisions and appraise the Tribunal about relevant facts and, therefore, also the petition deserves to be rejected. 9. In rejoinder Shri V.C.Desai, learned advocate SCA/1034/1999 7/16 JUDGMENT appearing for the petitioner has placed reliance on two decisions of the Apex Court i.e. J.T.1995(1) Supreme Court page 471 in the case of Dr. Bal Krishna Agarwal v. State of Uttar Pradesh & Ors. and also AIR 1982 Supreme Court page 82 V. Vellaswamy v. Inspector General Of Police, Tamil Nadu, Madras and Anr. and submitted that availability of the provisions of review, may not preclude this Court from exercising extraordinary jurisdiction under Article 226 and 227 of the Constitution of India when the Court is satisfied about inherent illegality crept in the order passed by the authority/Court. Learned advocate for the petitioner submitted that when the case is having good merits the party aggrieved cannot be relegated for such remedy of review when particularly as held by the Apex Court that the writ petition was already admitted before a few years and was fixed for final hearing and thereafter to relegate the petitioner on the ground of alternative remedy, will not be just and proper and as per the subsequent decision of Vellaswamy v. Inspector General of Police, Tamil Nadu, Madras and Anr. the review cannot be said to be an alternative remedy. 9.1. With regard to the power of the President of the Municipality, it is submitted that the President may exercise power under clause D of Section 45 of the Act in consonance with the provisions of the Act and not otherwise. According to learned advocate the powers vested into the Municipality as per Section 44 of the Act and certain functions are to be discharged SCA/1034/1999 8/16 JUDGMENT by the President under Section 45 which includes to keep watch over financial and administrative matters of the Municipality by the President and that also subject to the approval by the General Board, and, therefore, in the present case when exercise of the powers by the then President -respondent No.4 herein was not in the interest of the administration when disciplinary action against respondent No.1 after following procedure of law resulted into dismissal of respondent No.1 from service also came to be approved by the competent authority namely District Education Officer, there was no justification for respondent NO.4 to enter into the compromise which was not in the interest of Municipality and, therefore, the above compromise which form basis of the order dated 4.1.1999 passed by the Tribunal deserves to be quashed and set aside. 10. Having heard learned counsels for the parties and considering the relevant submissions, this Court by order dated 18.3.2008 has called for the record and proceedings of the Application No.424/1991 decided on 4.1.1999 by the Tribunal and accordingly the records and proceedings have been received and perused by this Court. 11. That, this petition, came to be admitted by this Court vide order dated 12.2.1999 by issuing Rule and notice as to interim relief returnable on 12.3.1999 and mean while ad interim relief was granted in terms of paragraph 10(B) by which respondent No.1 was SCA/1034/1999 9/16 JUDGMENT restrained from working as Principal of M.P.Municipal High School, Kapadvanj and judgment and order of the Tribunal dated 4.1.1999 at Annexure E came to be stayed. 11.1. From the perusal of record and proceedings of the Tribunal as called for, the pursis dated 29.7.1998 was filed and signed by respondent No.1 and endorsement and the signature of the then President of the Municipality i.e. respondent No.4 herein are found. What appears from the above record is that case before the Tribunal was required to be disposed of in terms of the settlement and request was made to the Tribunal to dispose the matter. It is also to be noted that the then President namely respondent NO.4 also had filed affidavit dated 4.1.1999 accepting the terms and conditions of the pursis and, therefore, the same was relied on by the Tribunal and directed the parties to comply with terms and conditions of the above mentioned pursis and the affidavit. 12. What transpires from the chain of events preceding the filing of the affidavit by the President-respondent No.4 herein is a declaration by the applicant on 29.7.1998 that he is ready and willing to fore go his backwages and in other claims provided the management reinstated him in service with continuity etc. That, submission of learned advocate Shri V.C.Desai for the petitioner the pleadings and averments made on oath in this petition about defending case of the respondent No.1 by SCA/1034/1999 10/16 JUDGMENT respondent No.4 in the capacity of the advocate in a criminal case Nos.564 and 565/1991 pending in the Court of learned JMFC at Kapadvanj remained un- controverted except that subsequently upon election of respondent No.4 as President of the Municipality the appearance came to be withdrawn and the above criminal case resulted into acquittal of respondent No.1 on 28th October, 1996 by the Competent Court. 13. Be that as it may, the fact remained that respondent NO.4 did appear as an advocate of respondent No.1 and defended his case before the competent court of law and, therefore, respondent No.4 ought to have refrained from filing an affidavit before the Tribunal accepting the proposal of respondent No.1 foregoing backwages upon reinstatement with continuity of service. The above circumstances are sufficient enough to draw a conclusion that respondent No.4 has not acted bonafidely, particularly, when he was aware and in know of the fact that he had appeared as a defence lawyer on behalf of respondent No.1 in a criminal case where even some of the charges were similar to those levelled in the departmental inquiry. 14. It is clear from the record that no specific authority was assigned to respondent No.4 by the General Board of the Municipality to settle or withdraw the cases against the delinquent employee. 15. That reliance placed on xerox copy of the SCA/1034/1999 11/16 JUDGMENT resolution of the Education Committee of the Municipality dated 26.7.1998 is also a circular resolution of which only xerox copy is produced which authorised respondent No.4 to reinstate respondent No.1 in service on certain conditions. Even on verification, of the record of the Municipality original of the above resolution is not available with the Municipality. The affidavit of the then Chief Officer of the Municipality dated 21.1.1993 indicate and reveal the charges levelled against respondent No.1 were concocted and whatever was stated by the Chief Officer before the Committee was not correct. The above aspect is not to be considered by this Court on merit, inasmuch as, it is an admitted position that respondent NO.4 had appeared in a criminal case to defend respondent No.1. The above fact was not disclosed before the Tribunal and Tribunal was misled to believe that the compromise pursis was valid, legal and respondent No.4 was authorized to file such pursis and, therefore, reliance placed by the Tribunal for passing the impugned order on the above pursis has resulted into miscarriage of justice and an error is crept in the order of the Tribunal which deserves correction in exercise of power under Article 226 and 227 of the Constitution of India. 15.1. It may be true that, had the Tribunal been appraised of correct facts the result might have been different but at the same time refusal to exercise power under Article 226 and 227 of the Constitution SCA/1034/1999 12/16 JUDGMENT of India on the ground of not following the procedure of review and approaching this Court for redressal of the grievances would amount travesty of justice inasmuch as under equitable jurisdiction it is the duty of this Court to see that injustice is not perpetuated and benefits derived by the party by suppressing certain vital facts need to be corrected. Respondent No.4 herein was the President of the Municipality and was duty bound to discharge his functions in accordance with the provisions of the Act and Rules made thereunder and admittedly there is no specific resolution passed by the General Body of the Municipality empowering the President to enter into the compromise and file affidavit before the Tribunal. Besides perusal of Section 45 of the Municipality Act relied on by the learned advocate for respondent No.1 do not confer any specific power upon the President to enter into any terms of settlement in a case of dispute between the employer and employee and there was no emergent situation by which the petitioner could have acted in this manner. Not only that but section 44 read with sections 65 and 66 of the Municipalities Act clearly provide that Municipality is the authority to perform the functions of the Municipality and all powers vested in the Municipality. Thus, action of respondent NO.4 was not taken bonafidely and in the interest of Municipality and before filing an affidavit in support of a pursis for compromise, no prior or subsequent approval of the authority namely Municipality was obtained by respondent NO.4 SCA/1034/1999 13/16 JUDGMENT and,therefore, the basis of the impugned order of the Tribunal being defective and not based on correct assessment of facts and, therefore, exercise of power under Article 226 and 227 of the Constitution of India is need to be exercised by this Court. 15.2. As held by the Apex Court in the decision relied on by Shri V.C.Desai i.e. Dr. Bal Krishna Agarwal vs. State of Uttar Pradesh & Ors. reported in JT 1995(1)S.C.471 in paras 9 and 10 the Apex Court has observed as under: “9. The learned counsel for the appellant has urged that the High Court was in error in dismissing the Writ Petition of the appellant on the ground of availability of an alternative remedy having regard to the fact that the Writ Petition had been filed in 1988 and it had been admitted and was pending in this High Court for the past more than five years. The learned counsel has also urged that the High Court was not right in saying that there was dispute on questions of act. According to the learned counsel there is no dispute that the appellant had been selected by the Selection Committee for appointment on the permanent post of Professor which was advertised and the said recommendation of the Selection Committee was accepted by the Executive Council in its Resolution No.197 dated November 8, 1984. The fact that the name of the appellant was also included in the list of Readers for personal promotion to the grade of Professor in Resolution No.198 of the Executive Council would not mean that the appointment of the SCA/1034/1999 14/16 JUDGMENT appellant to the post of Professor which was by way of personal promotion and not on the basis of selection for the cadre post of Professor which was advertised. The learned counsel also submitted that it is not the case of the appellant that he joined the post of Professor in Physics on November 8, 1984 and that his case is that the appellant as well as respondent Nos. 4 and 5 all joined as Professors in Physics on November 9, 1984. 10. Having regard to the aforesaid facts and circumstances, we are of the view that the High Court was not right in dismissing the petition of the appellant on the ground of availability of an alternative remedy under Section 68 of the Act especially when the Writ Petition that was filed in 1988 had already been admitted and was pending in the High Court for the past more than five years. Since the question that is raised involves a pure question of law and even if the matter is referred to the Chancellor under Section 68 of the Act it is bound to be agitated in the court by the partly aggrieved by the order of the Chancellor, we are of the view that this was not a case where the High Court should have non-suited the appellant on the ground of....” 15.3. Therefore, when the matter is admitted and pending since 1999 with stay of the order of the Tribunal in favour of the petitioner, it is not just and proper to relegate the petitioner on the ground that power of review is available with the authority or the Court of law. At the same time, when Court exercising power under Article 226 and 227 of the SCA/1034/1999 15/16 JUDGMENT Constitution of India is not precluded from exercising such power when glaring illegalities are brought to its notice. Mr. Desai, learned advocate has rightly submitted that matter was already admitted by this Court and stayed its operative portion since 1999 and no fruitful purpose is served on relegating the petitioners by filing Review Application. The proper course is to remand the case to the Tribunal to take decision afresh on merit as if no order dated 4.1.1999 is passed. 15.4.In view of what is held and observed in preceding paragraphs, the impugned order of the Tribunal based on ill designed, collusive, unauthorised and illegal modus of respondent Nos. 1 and 4 deserves to be quashed and set aside and in exercise of power under Article 226 and 227 of the Constitution of India, the impugned order dated 29.7.1998 is quashed and set aside. 16. Considering the above aspects, the Gujarat Secondary Education Tribunal is to decide the application on merit and preferably within six months from the receipt of writ/order of this Court since the respondent No.1 has already attained superannuation and by operation of stay order granted by this Court, respondent NO.1 was not permitted to perform duties. 17. Rule is made absolute accordingly with no order as to costs. SCA/1034/1999 16/16 JUDGMENT 18. Registry is directed that the record and proceedings which was called for, by the Court for perusal, be returned forthwith. [ANANT S. DAVE, J.] //smita//