IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14219 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE K.M.THAKER
========================================================= 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 ?
Whether this case involves a substantial question of law as 4 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 ?
========================================================= KANUBHAI B PATEL - Petitioner(s) Versus DISTRICT PRIMARY EDUCATION OFFICER & 1 - Respondent(s) ========================================= Appearance :
MR KB PUJARA for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR RUTVIJ M BHATT for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER
Date : 21/03/2012
ORAL JUDGMENT
1. Heard Mr. K.B. Pujara, learned advocate for the petitioner and Mr. Bhatt, learned advocate for the respondent. Rule. Mr. Bhatt, learned advocate has waived service of Notice of Rule on behalf of respondent Nos. 1 and 2. In view of the request made by learned advocate for the petitioner and with consent of the learned advocate for the respondent, the petition is taken up for hearing and final decision today.
2. The petitioner is aggrieved, in part, by the effect of the order dated 20.12.2010 so far as the effect on his salary, arrears and proper fixation at appropriate stage in the pay scale is concerned. The petitioner is also aggrieved by the action of the respondent authority of construing the order dated 5.2.2009 passed by the District Tribunal, so as to issue appointment order granting appointment to the petitioner as fresh appointee. The petitioner has, also prayed for other consequential benefits.
2.1 So as to appreciate the grievance made by the petitioner it is necessary and appropriate to take into account some of the relevant facts which are involved in the petition on hand.
3. It emerges from the record that at the material point of time the petitioner herein was working as Primary Teacher with respondent since November 1977.
3.1 It is the case of the petitioner that until the date on which the issue and dispute arose his service record was spotless.
3.2 It emerges from the record that for certain reported actions amounting to misconduct, the petitioner was visited with show-cause notice and suspension order dated 10.3.2004.
3.3 In pursuance of the said notice departmental proceedings were conducted / initiated and on conclusion of the proceedings the Disciplinary Authority passed order removing the petitioner from service w.e.f. 9.4.2004.
3.4 Feeling aggrieved by the said order dated 9.4.2004 terminating his service, the petitioner preferred writ petition being Special Civil Application No.12210 of 2004.
3.5 After hearing petitioner, this Court (Hon'ble Ms. Justice R.M. Doshit, as her lordship then was) vide order dated 13.9.2005 in Special Civil Application No.12210 of 2004 relegated the petitioner to the District Tribunal. In view of the said order passed in Special Civil Application No.12210 of 2004 the petitioner filed application on or around 13.9.2005, before the learned District Tribunal.
3.6 The proceedings continued before the tribunal and ultimately, on 5.2.2009, learned tribunal passed order directing the competent authority to pass order of posting to the petitioner either at the school where the petitioner's original lien continued or at any other school where the number and strength of teachers is less than necessary. Learned tribunal also observed in the order dated 5.2.2009 that the order of suspension is not approved. Thus, the learned Tribunal did not accept and approve the suspension order and instead passed aforesaid order directing competent authority to issue appropriate order of posting to the petitioner.
3.7 It appears that in pursuance of the said order dated 5.2.2009 the competent authority did not take any decision immediately or rather for almost 2 years and ultimately, after requests and reminders made by the petitioner, competent authority passed posting order dated 20.12.2010.
3.8 The said order is, as mentioned above, particularly under challenge so far as it has the effect over the petitioner's salary, arrears and fixation of his salary.
4. Mr. Pujara, learned Counsel for the petitioner has submitted that on one hand the action of the respondent is vitiated on account of inordinate delay caused in not passing appropriate order within reasonable time, and on the other hand impugned action of the respondent is also vitiated on account of non-application of mind and / or misconstruction of the direction issued by the learned tribunal. Mr. Pujara, learned Counsel for the petitioner has submitted that under its order dated 5.2.2009 learned tribunal has not directed the competent authority to give fresh appointment to the petitioner. He also submitted that learned Tribunal's direction was that the order of suspension was not approved and considering the undertaking and assurance given by the petitioner before the High Court the respondent authority was directed to issue order of posting in favour of the petitioner which could not have been construed as direction to issue fresh appointment order. Mr. Pujara, learned Counsel also made grievance that for the interregnum any amount towards arrears has not been paid to the petitioner and even his salary is not fixed by taking into account the intervening period. He also made grievance that even notional benefit has not been made available and the petitioner's salary is fixed as on the date of suspension and at the same stage when he was placed under suspension i.e. 9.7.2004. Mr. Pujara, learned Counsel submitted that actually, in view of the order dated 5.2.2009 passed by the learned tribunal, the petitioner should be treated as entitled for the salary for the period from the date of removal until 20.12.2010 and also for the benefit of fixation of his salary at appropriate stage in appropriate scale after considering the entire intervening period as continuous. Mr. Pujara, learned Counsel for the petitioner submitted that though the petitioner has made request – representation, same have not been considered by the respondent authority and therefore the petitioner is constrained to prefer present petition.
4.1 Per contra Mr. Bhatt, learned advocate for the respondent authority has submitted that learned tribunal has not mentioned anything about the termination order and that therefore the petitioner is not entitled to claim any benefit for the intervening period. Learned advocate for the respondent also submitted that it is not in dispute that from July 2004 until 20.12.2010 the petitioner has not worked in any capacity and therefore also he is not entitled to the benefit which he is claiming in present petition. Mr. Bhatt, learned advocate for the respondent authority has submitted that after the order passed by the learned tribunal the competent authority has passed order dated 20.12.2010 and complied the tribunal's order and that therefore the petitioner's grievance that the authority has not complied the said order is unjustified. Mr. Bhatt, learned advocate for the respondent authority also relied on the details mentioned in reply affidavit dated 6.12.2011 wherein respondents have, in paragraph Nos. 3 to 6 stated thus:-
“3. It is submitted that the averments made in para-2 is hereby denied. It is submitted that the petitioner has mislead this Hon'ble Court and has made false averment that he has not been paid regular salary of month of May 2003, January 2004 without bringing true facts on record that though he was offered salary however on account of his denial his salary it was deposited in treasury account. A copy of the amount so deposited on account of his denial to accept salary is duly annexed herewith this reply and marked as Annexure-R1.
4. It is submitted that the averments made in the petition at para 3, 4 and 5 is hereby denied. It is submitted that on account of serious allegations of misconduct with the students and intolerable behaviour of the petitioner and on account of various complaints filed by the village persons and students, inquiry was been initiated by the Taluka Development Officer Dharampur and on the basis of the said report of Taluka Development officer forwarded to the District Primary Officer and on the basis of the same the petitioner was put under suspension from 10.3.2004. The disciplinary proceedings were initiated by the TDO and looking to the seriousness of the allegations the petitioner was removed from service on 9.7.2004.
5. It is further submitted that petitioner challenged the disciplinary proceedings by way of special civil application No.12210 of 2004. The said petition came to dispose of as the petitioner want to avail the alternate remedy. It is after the aforesaid petition the appeal came to be preferred before the Tribunal. It is further submitted that tribunal allowed the appeal on the basis of the undertaking filed by the petitioner. It is therefore submitted that it is an evident fact on record that the petitioner, had not served till 20.12.2010.
6. It is submitted that since the petitioner was reinstated hence the petitioner was placed on the same pay scale as he was availing as last pay prior to suspension. Moreover the petitioner was issued posting order at Bhensdhara Potukwada Primary School, Taluka: Dharampur by order dated 20.12.2010. Accordingly the petitioner is paid salary from 20.12.2010 regularly. It is submitted that the petitioner was not in service for interim period of 9.7.2004 to 20.12.2010 hence the petitioner is not entitled to salary for the said period.”
5. I have considered the submissions made by the learned Counsel for the petitioner as well as respondent and I have also taken into account the material available on record including the order dated 13.9.2005 passed by this Court in Special Civil Application No.12210 of 2004, the order of suspension dated 10.3.2004 (pages 14-15), the order of termination dated 9.7.2004 as well as the order dated 5.2.2009 passed by the learned Tribunal and the order dated 20.12.2010 passed by the District Primary Education Officer.
5.1 At first reading of the order dated 20.12.2010 it appears that competent authority has instead of, “reinstating”, the petitioner “reappointed” the petitioner as fresh appointee.
5.2 The petitioner is aggrieved by the said direction inasmuch as according to the petitioner the tribunal clearly directed that appropriate order of posting should be issued and not order of re-appointment and instead the competent authority has issued order which is in nature of fresh appointment or which would result into break in petitioner's service and will have serious consequences so far as his salary and other monetary benefits are concerned.
5.3 Therefore, to that extent the said order dated 20.12.2010 is placed under challenge in present petition.
5.4 However, so far the direction regarding place of posting is concerned, the petitioner has no grievance and actually he has complied the said direction by immediately reporting at the place of posting.
5.5 It further emerges from the record that pursuant to the said order dated 20.12.2010 the petitioner is presently in employment with the respondent and according to the submission by the learned advocate for the petitioner, the petitioner is about to retire or superannuate within short time.
5.6 It emerges from the record that immediately after the order was passed in Special Civil Application No. 12210 of 2004 the petitioner had approached the learned tribunal by filing appropriate application in September 2005. The proceedings continued before the learned tribunal for almost 4 years and the final order came to be passed on 5.2.2009.
5.7 So far as the said order dated 5.2.2009 is concerned, it comes out from the plain reading of the order that learned tribunal has expressly made reference of the suspension order and observed that the said order is not approved.
5.8 However, learned tribunal's order is wanting in respect of the termination order dated 9.7.2004 inasmuch as the order of the learned tribunal does not contain any discussion with reference to the said order.
5.9 Ordinarily in such circumstances this Court would remit the matter to the tribunal for further order / clarification however, considering the passage of time in the interregnum and subsequent events which have taken place, particularly the fact that the tribunal's order is already acted upon, the said course of action, in facts of present case, is not considered appropriate. Instead it would be appropriate to make necessary clarification and direction so as to balance the equity and interest of both the sides having regard to the facts and circumstances of the case.
5.10 The fact remains that the learned tribunal has, as an ultimately effect of the order, directed the competent authority to issue order of posting. Under the circumstances it is to be treated as an implied conclusion on part of the tribunal that the termination order dated 9.7.2004 stands set aside in view of the final direction to the competent authority to issue order of posting.
5.11 The other view could have been possible if the order dated 5.2.2009 had been passed as interim order. However it is not in dispute that the said order dated 5.2.2009 has been passed as final order. Besides this, the fact remains that not only the petitioner but even the respondent authority have not carried said order in appeal for all these years and the order has attained finality.
Furthermore it is also relevant to take note of the submissions made by the competent authority in its affidavit in paragraph No.6 of the affidavit which expressed as to how even the competent authority has actually understood the order. In paragraph No.6 of the reply affidavit it is averred that:-
“It is submitted that since the petitioner was reinstated hence the petitioner was placed on the same pay scale ”
5.12 Thus, it comes out that even the respondent had understood the tribunal's direction was to “reinstate” the petitioner.
5.13 Therefore it clearly emerges from the conduct of the authority that the petitioner as well as respondent authority have understood that by order dated 5.2.2009 learned tribunal has not approved the order of suspension as well as an order of removal. In that view of the matter ordinary consequences should have followed.
5.14 Instead the competent authority issued order dated 20.12.2010 whereby the competent authority cancelled earlier order of suspension and ordered that the petitioner be reappointed at Bhensadhara Potukawada Primary School, Taluka Dharampur and the petitioner may be paid salary at the rate which he was paid at the time when he was placed under suspension.
5.15 The said direction is required to be examined in light of the direction passed by the learned tribunal.
5.16 In the order dated 5.2.2009 the tribunal has not directed that the petitioner should be reappointed.
5.17 Learned tribunal has directed to issue transfer order and post the petitioner at such transferred place as may be considered appropriate considering the requirement.
5.18 Even according to the understanding of the respondent authority the petitioner was required to be reinstated.
5.19 In such circumstances there was no justification for the competent authority to observe that the petitioner should be paid salary at the rate which he was paid at the time when he was placed under suspension.
5.20 In this context it is also appropriate to recall that even after the order passed by the learned tribunal in February 2009 the respondent authority did not take any action of complying the said direction for almost 2 years i.e. from February 2009 until December 2010.
5.21 Obviously, the petitioner cannot be held responsible in any manner for the delay of almost 2 years.
5.22 The action of the respondent for not making any payment towards salary and other benefit for the said entire period of 2 years is not justified.
5.23 In the reply affidavit or from the submission made on behalf of the learned advocate for the respondent, any justification for the delay of almost 2 years caused in passing the order is not made out.
5.24. It is not in dispute that since 20.12.2010 the order of posting has been issued and the petitioner is working with the respondent and there are no complaint or grievance about his conduct and service with the respondent.
6. In this background the issue which now survives is about the effect in petitioner's salary for the period from March 2004 to February 2009.
The petitioner was placed under suspension in March 2004 and removed from service in July 2004.
As mentioned hereinabove, the order passed by the learned tribunal is vague so far as the the removal order dated 9.7.2004 is concerned. Subsequently time from July 2004 until February 2009 has passed during the pendency of the proceeding before this Court and before the tribunal.
Under the circumstances this Court does not consider it appropriate to direct actual payment of any wages for the period from 10.3.2004 until February 2009.
However, it is clarified that for the purpose of fixing the petitioner's salary (notional fixation), and such other benefits, the petitioner's service shall be treated as under suspension from 10.3.2004 until 5.2.2009 but the petitioner shall not be entitled to any monetary benefit or other benefit e.g. leave etc. except that the period shall not be treated as break in service.
7. So far as the period from 5.2.2009 to 20.12.2010 is concerned, the petitioner will be entitled for his salary (basic and Dearness Allowance) however will not be entitled for any other benefit including leave etc. for the said period. So far as order dated 20.12.2010 directing that the petitioner be paid salary at the rate of which he was being paid at the time of his suspension is concerned, the said direction is set aside and the respondent authorities are directed to notionally fix the salary of the petitioner at appropriate stage in the applicable pay scale after giving effect of continuous service from 10.3.2004 until 20.12.2010 within period of three months from the date of receipt of present order.
With the aforesaid clarifications and directions the petition stands disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(K.M.THAKER,J.) Suresh*