President vs R.P. Narigara

J.B. Pardiwala, J. (Oral)—By this application under Article 227 of the Constitution of India, the applicant, former Superintendent serving in the Labour Court at Bhavnagar, has prayed for the following reliefs :

"...the Honourable Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction and may be pleased to :-

(A) quash and set aside the order passed by the Gujarat Civil Services Tribunal, Gandhinagar dated 30.5.2002 in Appeal No.184 of 2001, Annexure-A to this petition, and

(B) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case, and

(C) Pending admission and final disposal of this petition, the Honourable Court may be pleased to stay the implementation, operation and execution of the impugned order passed by the Gujarat Civil Services Tribunal, Gandhinagar dated 30.5.2002, in Appeal No.184 of 2001, Annexure-A to this petition."

The facts of this case may be summarised as under :

On 7th June 1997, a departmental inquiry was initiated against the respondent, who, at the relevant point of time, was working as the Superintendent at Bhavnagar under the administrative control of the President of the Industrial Court, Ahmedabad.

After a full-fledged departmental inquiry, the respondent was held to be guilty of the charges levelled against him. On 30th April 2001, Shri N.A.Acharya, President of the Industrial Court, Ahmedabad, recorded detailed reasons and passed the order of penalty of dismissal from service.

It appears that the appointment of Shri Acharya as the President of the Industrial Court, Ahmedabad, was challenged before this Court by way of the Special Civil Application No.12665 of 2000 and connected matters.

A Full Bench of this Court quashed the appointment of Shri Acharya as the President of the Industrial Court. The judgment passed by the Full Bench was challenged before the Supreme Court. The Supreme Court stayed the operation of the judgment of the Full Bench of this Court on 30th July 2001. Since the appointment of Shri Acharya as the President of the Industrial Court was made a subject matter of challenge before the High Court and the appointment was actually cancelled, one Shri Y.P. Bhatt, senior-most Member of the Industrial Court, was asked to look into the administrative functions of the Industrial Court.

It appears that the order of dismissal which was passed by Shri Acharya was ultimately conveyed to the respondent by Shri Y.P. Bhatt. That order was made the subject matter of challenge before the Gujarat Civil Services Tribunal, Gandhinagar. The Tribunal, vide judgment and order dated 30th May 2002, allowed the Appeal No.184 of 2001 in the following terms :

"10. In light of the above decision, we hold that in the present case the appellant will be reinstated without back-wages and the question of regularisation of the period from the date of his dismissal till the final order that may be passed may be dealt with by the appointing authority in accordance with rules after the matter is decided finally. We, therefore, pass the following order :-

O R D E R

The appeal is partly allowed. The impugned order dated 11.6.2001 of the respondent � senior Member, Industrial Court, Ahmedabad, is quashed and set aside. The case is remanded for considering the matter afresh in accordance with law and the observations made in this judgment. The appellant be reinstated in service without back-wages; the question of regularisation of the intervening period from the date of his dismissal from service till the final order that may be passed to be considered by the disciplinary authority as per rules after the final decision is taken in the matter."

The President, Industrial Court, thought fit to challenge the order passed by the Services Tribunal by filing this application, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

On 12th August 2002, a detailed order was passed by a learned Single Judge of this Court, which reads as under :

"Heard learned Counsel Mr. Paresh Upadhyay for the petitioner and learned Senior Counsel Mr. S.K. Zaveri appearing on caveat for respondent.

Rule returnable in the last week of November, 2002. Mr. J.V. Shah, learned Advocate for the respondent waives service of rule.

Mr. Upadhyay contended that the petitioner is aggrieved by the judgement rendered by the Gujarat Civil Services Tribunal in Appeal No. 184 of 2001, on May 30, 2002. The said judgement is rendered not on merits, but only on question of legal authority and competence of the person who passed the order in question. Therefore this petition is also not on merits, but only on this limited question of law.

3.1. Mr. Upadhyay submitted that the order impugned before the Tribunal came to be passed in peculiar circumstances of the case. The respondent who was serving as Superintendent in the Labour Court, Bhavnagar was found to have been involved in defalcation. Departmental proceedings were initiated and ultimately he came to be dismissed from service by an order passed by the President of the Industrial Court, Ahmedabad (Shri N.A. Acharya, as he then was). Only operative part of the order was served on the respondent, although the reasonings were recorded by him. That came to be challenged in Appeal No. 114 of 2001 before the Gujarat Civil Services Tribunal and the TRibunal, by order dated 17.5.2001, partly allowed the appeal by setting aside the order and directing the respondent therein to give a reasoned order to the appellant and pass appropriate order to take effect after three weeks in the event of dismissal is maintained. In the meanwhile, the very appointment of Mr.Acharya, President of the Industrial Court, Ahmedabad, which was under challenge before this Court in Special Civil Application No.12665 of 2000 came to be quashed by a larger bench of this Court. This Court, therefore, on its administrative side, by communication dated May 16, 2001, addressed to Mr. Acharya C/o Industrial Court, Ahmedabad with a copy to Mr. Y.P. Bhatt, Sr. Member, Industrial Court, Ahmedabad intimated its decision that while the order passed in Special Civil Application No. 12665 of 2000 and other connected matter was under consideration of the High Court on its administrative side, Mr. Y.P. Bhatt, Senior-most Member of Industrial Court, may attend to the administrative function required to be performed by the President of the Industrial Court at Ahmedabad.

3.2. Following the order of the Tribunal dated May 17, 2001 in Appeal No.114 of 2001, Mr. Y.P. Bhatt communicated to the respondent a reasoned order of dismissal on 11.6.2001, to be effective from 2.7.2001. This order came to be impugned before the Tribunal by Appeal No.184 of 2001 and the order impugned herein came to be passed on May 30, 2002.

3.3. Mr. Upadhyay contended that the Tribunal has came to a conclusion that the impugned order could not have been passed by the signatory (Mr. Y.P. Bhatt, Senior Member, Industrial Court), as passing of this order was a quasi-judicial nature and the powers conferred on him by the High Court by communication dated May 16, 2001 Annexure "B" were only for administrative work and therefore the Tribunal has quashed and set aside the order. Mr. Upadhyay submitted that the order is of an administrative nature in the first instance; that the reasons were already narrated in the earlier order passed by Mr. Acharya and that by the impugned order only the reasons are communicated and therefore it is not a quasi-judicial function.

3.4. Apart from this, according to Mr. Upadhyay, the authority was given to perform all functions of President of the Industrial Tribunal by communication, Annexure "B" and therefore, this action is taken. Therefore, there is no want of authority. Thirdly it was contended that the decision is that of the High Court though it is communicated by the Registrar and therefore there is constitutional backing to the action of Mr. Y.P. Bhatt. These aspects have been over-looked by the Tribunal and therefore, operation of the order impugned in this petition may be stayed.

Learned Senior Counsel Mr. Zaveri, appearing with Mr.Shah, Learned Advocate for the respondent, submitted that the order impugned before the Tribunal is an order passed by Mr. Y.P. Bhatt, in his official capacity as Senior Member and not the Chairman; that the authority given by communication Annexure "B" is only administrative and the function that is performed by passing the impugned order is quasi-judicial in nature and therefore this order was Rs. without authority''. It is also contended by him that quasi-judicial powers could not have been delegated; that there is violation of Article 311 of the Constitution of India inasmuch as no hearing is given to the respondent and that Member cannot be considered the appointing authority. He also contended that there is nonobservance of Rule 25 of Gujarat Financial Rules, which requires that where criminal proceedings are instituted, finding on conclusion of Departmental proceedings cannot be pronounced prior to the conclusion of the criminal proceedings. He relied upon the decisions of this Court in Gunvatray Manilal Desai v. Director of Agricultural Marketing and Rural Finance, Gujarat, reported in XIX GLR 895 and in the case of The Anant Mills Co.Ltd. v. Municipal Corporation for the City of Ahmedabad and others reported in 1993 (2) GLH 897 to substantiate his arguments. He therefore urged that this Court may not interfere with the order impugned herein.

Having regard to the contentions raised before this Court, at the out-set it requires to be noted that the order impugned before the Tribunal came to be passed in a very peculiar circumstances. It would also be pertinent to note that order passed in Special Civil Application No.12665 of 2000 has been carried by this Court on its administrative side to the apex Court on its judicial side and its operation has been stayed by order dated July 30, 2001 in Special Leave to Appeal (Civil) No.11795-11798 of 2001.

5.1. It is observed that by Annexure "B" this High Court, on its administrative side, decided that Mr. Y.P. Bhatt, Senior most Member of Industrial Court may attend to the administrative function required to be performed by the President of the Industrial Court at Ahmedabad. It would also be relevant to observe that the order impugned before the Tribunal in Appeal No. 184 of 2001 is only a further order passed by Mr. Y.P. Bhatt below the original order passed by Mr. Acharya as only operative part was served on the respondent, with a view to comply with order of the Tribunal in Appeal No.114 of 2001 on 17.5.2001. While passing the order impugned before the Tribunal, Mr. Bhatt has observed that he has passed the order in furtherance of powers invested in him by Annexure "B" and that he is taking this action because he is required to serve reasoned order on the respondent by virtue of the order of the Tribunal, which according to him, is an administrative function and that he has read the reasons stated by his predecessor and he is in agreement therewith and then ultimately he passed the order on 11.6.2001.

5.2. What therefore requires to be considered is whether in this peculiar circumstances, can it be said that the action impugned before the Tribunal was without authority; that the order impugned before the Tribunal was a quasi-judicial nature or whether it was purely an administrative one, call for a serious consideration. It would also be a question whether the said action can be said to be illegal or irregular. The Tribunal has given finding only on this question and not on merits and therefore, at this stage this Court refrains from expressing any view on question of Rule 25 of the Gujarat Finance Rule or Article 311 of the Constitution of India.

In the opinion of this Court, when Mr. Y.P. Bhatt was entrusted to attend to administrative function required to be performed by the President of the Industrial Court and when he has only, by passing an order below the earlier reasoned order, communicated the reasons recorded by the then President of the Industrial Court, it would not be appropriate not to interfere with the order of the Tribunal quashing and setting aside the order and therefore, interim relief has to be granted as prayed for vide paragraph 7(C) of the petition. Interim relief in terms of paragraph 7(C) is granted till final disposal of the petition."

Thus, it appears from the order passed by this Court referred to above that the order passed by the Tribunal was stayed from its operation. The interim relief granted way back on 12th August 2002 still continues as on date.

In a way, the order passed by this Court dated 12th August 2002, is self-explanatory. It appears that the Tribunal took a hyper-technical view of the matter and allowed the appeal filed by the respondent. The Tribunal had no occasion to go into the merits of the order of dismissal passed by the President, Industrial Court.

I propose to quash the order passed by the Tribunal with a clarification that the Tribunal shall hear the appeal which was filed by the respondent herein, on merits. For this purpose, if the respondent wants to amend the appeal memo, he may be permitted to do so.

In the result, this application succeeds and is allowed in part. The impugned order passed by the Tribunal is hereby ordered to be quashed. The matter is remitted to the Tribunal for fresh hearing on merits. Since almost more than fifteen years have passed, I expect the Tribunal to give top priority to this matter and see to it that the same is disposed of within a period of three months from the date of receipt of the order.