Gujarat High Court
Inayat Hussain Shaikh vs Ahmedabad Munincipal Corporation on 20 January, 2025
NEUTRAL CITATION
C/SCA/12697/2024 CAV JUDGMENT DATED: 20/01/2025
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Reserved On : 24/09/2024
Pronounced On : 20/01/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12697 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
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Approved for Reporting Yes No
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INAYAT HUSSAIN SHAIKH
Versus
AHMEDABAD MUNINCIPAL CORPORATION
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Appearance:
MR SHALIN A. MEHTA, SR. COUNSEL WITH MR KM ANTANI(6547) for the
Petitioner(s) No. 1
MR MAULIN RAVAL, SR. COUNSEL, WITH MR HAMESH C NAIDU(5335) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
CAV JUDGMENT
1. Draft Amendment is allowed. Necessary amendment shall
be carried out forthwith.
2. In this Special Civil Application, the petitioner has prayed
for the following relief:
“9(A) This Hon’ble Court be pleased to admit and allow this petition.
(B) This Hon’ble Court be pleased to issue a writ of certiorari and/or
any other appropriate writ, order or direction and consequently quash
the impugned charge-sheet dated 01.01.2024, the inquiry report dated
10.06.2024, and the impugned order dated 22.08.2024 at Annexure-A.Page 1 of 13
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BY WAY OF DRAFT AMENDMENT 9(B) (i) This Hon’ble Court be pleased
to issue a writ of certiorari and/or any other appropriate writ, order or
direction and consequently quash the impugned agenda notice at
ANNEXURE W to the effect that it warrants an action of filling up of
vacancy arisen due to the termination of the petitioner.
(C) During the pendency hearing and final disposal of this petition, this
Hon’ble Court be pleased to stay implementation, execution and
operation of the impugned order dated 22.08.2024 at Annexure-A and
direct the Respondent to restore the petitioner to his post enabling his
active service.
BY WAY OF DRAFT AMENDMENT 9 (C) (i) During the pendency hearing
and final disposal of this petition, this Hon’ble Court be pleased to stay
implementation, execution and operation of the impugned agenda notice
at Annexure-W and a further direction to the Respondent to keep the
post held by the petitioner vacant.
(D) This Hon’ble Court be pleased to grant ex-parte ad-interim relief in
terms of Para.9(C) may be granted.”
3. The brief facts of the petitioner’s case is that, the petitioner
served as a Full-time Lecturer (Fire) at the College of Fire
Technology from 04.07.2005 to 15.02.2007, as Fire Officer at
Durga Fire & Safety Consultants from 17.02.2007 to
30.06.2007, and as Fire Safety Officer at Apollo Hospitals
International Ltd. from 11.07.2008 to 31.07.2012. Subsequently,
he was appointed as Station Officer at Rajkot Municipal
Corporation (27.07.2012 to 14.06.2016), Vadodara Municipal
Corporation (04.06.2016 to 25.06.2019), and Ahmedabad
Municipal Corporation (25.06.2019 to 18.01.2021). The
petitioner also completed the Divisional Fire Officer course from
National Fire Service College (‘NFSC’ for sake of brevity), Nagpur
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in 2018. On 18.01.2021, following a recruitment process
advertised on 11.11.2020, the petitioner was appointed as
Divisional Officer (Fire). However, on 30.11.2022, the respondent
corporation called upon the petitioner to provide evidence
regarding his entry into the NFSC, Nagpur and, pursuant to this,
his statement was recorded on 08.12.2022. On 24.08.2023, the
petitioner was served with a show cause notice alleging
irregularities in his entry into NFSC, Nagpur and proposing his
termination. The petitioner replied to the notice on 01.09.2023.
Aggrieved by the show cause notice, the petitioner and similarly
situated officers challenged it before this Court, which, by order
dated 26.10.2023, directed the respondent corporation to
conduct a departmental inquiry under Rule 9 of the 1971 Rules,
ensuring compliance with due process and providing adequate
opportunity to the petitioner. Pursuant to this, the respondent
corporation conducted an inquiry, which resulted in a report
dated 10.06.2024 confirming the petitioner’s guilt. Following a
final show cause notice on 29.07.2024, the petitioner filed
Special Civil Application No. 11895 of 2024, challenging the
inquiry report, charge-sheet, and show cause notice. By order
dated 09.08.2024, this Court directed the respondent
corporation to consider the petitioner’s representation before
passing a final order. The respondent corporation passed a final
order of termination on 22.08.2024. The petitioner further
contends that following his termination, the vacancy for the post
of Divisional Fire Officer is now being filled. Aggrieved by the
termination order, the petitioner has filed the present Special
Civil Application.
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4. Mr. Shalin Mehta, learned Senior Counsel for the petitioner
submits that the petitioner challenges the impugned order
passed under Section 56 of the Gujarat Provincial Municipal
Corporation Act, 1949, arguing it contradicts the directives
issued by this Court in Special Civil Application No. 16166 of
2023, which required prosecution under the Gujarat Civil
Services (Discipline and Appeal) Rules, 1971. The petitioner
claims that the corporation ignored his representations,
procedural lapses, and jurisdictional issues. The charge against
the petitioner, regarding alleged forged documents for admission
to the NFSC, Nagpur, is deemed irrelevant to his appointment as
Divisional Officer, which was based on experience as a Station
Officer, not NFSC, Nagpur qualifications. The petitioner also
argues that the charge is not supported by evidence, as the
NFSC, Nagpur has denied any irregularities and the FIR does not
name him. The proceedings are seen as premeditated and
discriminatory, with similar cases not being prosecuted.
Additionally, the charge stems from a complaint by a former
employee, Mustafa Musa Patel, whose own credentials are
questionable. The petitioner therefore prays to quash the
impugned order as it violates Court directives and lacks legal
foundation.
4.1 He further submits that the respondent’s hasty
recruitment for the post vacated by the petitioner’s termination
reveals a premeditated intent to oust the petitioner. This action
demonstrates malafide intent, aiming to render any remedy
against the termination ineffective, highlighting a deliberate and
orchestrated plan.
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5. Per contra, Mr. Maulin Raval, learned Senior Counsel
appearing for the respondent submits that the present petition
challenges the inquiry conducted against the petitioners. It is
argued that under Article 227 of the Constitution, courts cannot
re-appreciate evidence from such inquiries. The departmental
inquiry allegedly adhered to principles of natural justice, with no
claims of procedural violations. The petitioners were appointed
based on sponsorship certificates later found to be forged,
leading to a vigilance inquiry confirming the inauthenticity of
their NFSC, Nagpur admission. Despite repeated requests, the
petitioners failed to provide evidence of their eligibility or prior
employment with Gujarat State Civil Defense. The respondent
corporation asserts that the appointments were void due to fraud
and misrepresentation. Adequate opportunities for defense were
provided, with no proven prejudice or breach of natural justice.
6. Mr. Shalin Mehta, learned Senior Counsel for the petitioner
further submits in rejoinder that the petitioner contends that the
present case invokes Article 226, not Article 227, of the
Constitution, and does not seek re-appreciation of evidence but
challenges the jurisdiction of the corporation to prosecute them
for alleged “misconduct.” The alleged misconduct, relating to
admission to NFSC, Nagpur, does not meet the definition of
misconduct under the Conduct Rules or Discipline and Appeal
Rules. The corporation’s reliance on vague and presumptive
charges of forgery, based on incomplete investigations, is
unwarranted. The petitioners’ qualifications and testimonials
have been verified as genuine by NFSC, Nagpur, and no forged or
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fabricated documents have been proven. The petitioner argues
that determining whether NFSC, Nagpur entry constitutes
misconduct is the key issue, and the respondent’s vague
allegations and reliance on admissions are irrelevant. They
request that the Special Civil Application be allowed.
7. Mr. Maulin Raval, learned Senior Advocate for the
respondent submits in sur-rejoinder that the respondent refutes
the petitioner’s claim that no action has been taken against 16
other Fire Department personnel, stating that a vigilance
investigation is ongoing against 18-19 personnel, including those
named by the petitioner. During the inquiry, documents from
File No. 2 were provided to the petitioner, showing that Gujarat
State Civil Defence never sponsored them for the NFSC, Nagpur
course. Despite requests, the petitioner failed to produce
evidence to support their claims. The petitioner’s own
submissions reveal contradictions regarding sponsorship and
engagement dates, as their NFSC, Nagpur course completion in
2005 predates their honorarium-based appointment in 2008.
The investigation, initiated in 2019, is comprehensive and
includes the petitioner’s case. The respondent requests dismissal
of the writ petition.
8. Heard the learned Senior Counsels representing the parties
and perused the documents on record.
9. The departmental proceedings originated from a complaint
by one Mustafabhai Musabhai Patel to the Deputy Municipal
Commissioner (Vigilance). The complaint alleged that the
petitioner had fraudulently secured admission to the National
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Fire Service College, Nagpur. Based on this complaint, the
petitioner was required to submit evidence regarding his
admission. HIs statement was subsequently recorded, and he
was served with a show-cause notice alleging illegal admission to
the NFSC, Nagpur which warranted his termination. The
petitioner was also served with a charge-sheet, accusing him of
gaining admission to the NFSC, Nagpur using bogus or
fabricated sponsorships from private and government
organizations, ultimately leading to the issuance of Sub-officer’s
certificates. Following this, departmental proceedings was
initiated, and the petitioner participated in the inquiry. The
Inquiry Officer’s report dated 10.6.2024 concluded that the
charges were proven and that the petitioner had wrongfully
gained admission to the Sub-officer’s Course by submitting false
sponsorship letters. This culminated in a final show-cause
notice, leading to the termination of his service by the impugned
order dated 22.8.2024.
10. Notably, NFSC, Nagpur, in response to an inquiry by the
respondent Corporation, confirmed that the certificate issued to
the petitioner is valid and genuine. NFSC, Nagpur as a Central
Institution, has not conducted any investigation declaring the
petitioner’s admission invalid. As of now, the admission and
Certificate held by the petitioner remains valid. While allegations
of a scam concerning admissions to NFSC, Nagpur, during 2012-
2016 are under investigation by local police, the petitioner has
not been named as accused in this matter, nor has any finding
implicated his involvement.
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11. The petitioner possesses valid qualifications, having
cleared the recruitment process for the position of Divisional Fire
Officer with the respondent Corporation, based on eligibility and
necessary qualifications, including training from NFSC, Nagpur.
The Corporation initiated its inquiry based on a private
complaint concerning their admissions, even though similar
allegations are being investigated under an FIR filed by NFSC,
Nagpur, which remains pending.
12. In the considered view of this Court, the respondent
Corporation exceeded its jurisdiction by conducting such an
inquiry. The appropriate investigative authorities are already
probing the allegations, and the petitioner’s documents are in
his custody. The Corporation could only have initiated
disciplinary proceedings if NFSC, Nagpur, had invalidated the
admission or Certificate. NFSC’s communication confirms the
Certificate’s validity and the unavailability of the original
documents due to their custody with the investigating agency. In
the absence of evidence from the investigating agency indicating
that the petitioner had submitted forged documents, the
Corporation’s actions were unwarranted. The conclusions
arrived at in the Disciplinary Proceedings are presumptive in
nature.
13. The Hon’ble Apex Court in the case of Rasiklal Vaghajibhai
Patel v. Ahmedabad Municipal Corporation and Another reported
in (1985) 2 SCC 35 has held and observed in paragraphs 4 and 5
as under:-
“4. The High Court while dismissing the petition held that even if A
the allegation of misconduct does not constitute misconduct amongstPage 8 of 13
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those enumerated in the relevant service regulations yet the employer
can attribute what would otherwise per se be a misconduct though not
enumerated and punish him for the same. This proposition appears to
us to be startling because even though either under the Certified
Standing Orders or service regulations, it is necessary for the employer
to prescribe what would be the misconduct so that the
workman/employee knows the pitfall he should guard against. If after
undergoing the elaborate exercise of enumerating misconduct, it is left
to the unbridled discretion of the employer to dub any conduct as
misconduct, the workman will be on tenterhooks and he will be
punished by ex post facto determination by the employer. It is a well-
settled canon of penal jurisprudence-removal or dismissal from service
on account of the misconduct constitutes penalty in law-that the
workmen sought to be charged for misconduct must have adequate
advance notice of what section or what conduct would constitute
misconduct. The legal proposition as stated by the High Court would
have necessitated in depth examination, but for a recent decision of this
Court in Glaxo Laboratories v. The Presiding Officer, Labour Court
Meerut & Ors.(1) in which this Court specifically repelled an identical
contention advanced by Mr. Shanti Bhushan, learned counsel who
appeared for the employer in that case observing as under:
“Relying on these observations, Mr. Shanti Bhushan urged that
this Court has in terms held that there can be some other misconduct
not enumerated in the standing order and for which the employer may
take appropriate action. This observation cannot be viewed divorced
from the facts of the case. What started in the face of the court in that
case was that the employer had raised a technical objection ignoring
the past history of litigation between the parties that application under
Sec. 33A was not maintain able. It is in this context that this Court
observed that the previous action might have been the outcome of some
misconduct not enumerated in the standing order. But the extracted
observation cannot be elevated to a proposition of law that some
misconduct neither defined nor enumerated and which may be believed
by the employer to be misconduct ex post facto would expose thePage 9 of 13
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workman to a penalty. The law will have to move two centuries back
ward to accept such a construction. But it is not necessary to go so far
because in Salem Erode Electricity Distribution Co. Ltd. v. Salem Erode
Electricity Distribution Co. Ltd. Employees Union, (1) this Court in terms
held that the object underlying the Act was to introduce uniformity of
terms and conditions of employment in respect of workmen belonging to
the same category and discharging the same or similar work under an
industrial establishment, and that these terms and conditions of
industrial employment should be wellestablished and should be known
to employees before they accept the employment. If such is the object,
no vague undefined notion about any act, may be innocuous, which
from the employer’s point of view may be misconduct but not provided
for in the standing order for which a penalty can be imposed, cannot be
incorporated in the standing orders. From certainty of conditions of
employment, we would have to return to the days of hire and fire which
reverse movement is hardly justified. In this connection. we may also
refer to Western India Match Company Ltd v. Workmen(2) in which this
Court held that any condition of service if inconsistent with certified
standing orders, the same could not prevail and the certified standing
orders would have precedence over all such agreements. There is really
one interesting observation in this which deserves noticing Says the
Court:
“In the sunny days of the market economy theory people
sincerely believed that the economy law of demand and supply in the
labour market would settle a mutually beneficial bargain between the
employer and the workman Such a bargain, they took it for granted,
would secure fair terms and conditions of employment to the workman.
This law they venerated as natural law. They had an abiding faith in
the verity of this law. But the experience of the working of this law over
a long period has belief their faith.”
Lastly we may refer to Workmen of Lakheri Cement Works Ltd.
Associated Cement Companies Ltd. This Court repelled the contention
that the Act must prescribe the minimum which has to be prescribed in
an industrial establishment, but it does not exclude the extension other
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wise. Relying upon the earlier decision of this Court in Rohtak Hissar
District Electricity Supply Co. Ltd. v. State of U.P., the Court held that
everything which is required to be prescribed with precision and no
argument can be entertained that something not prescribed can yet be
taken into account as varying what is prescribed. In short it cannot be
left to the vagaries of management to say ex post facto that some acts
of omission or commission nowhere found to be enumerated in the
relevant standing order is none-the-less a misconduct not strictly falling
within the enumerated misconduct in the relevant standing order but
yet a misconduct for the purpose of imposing a penalty. Accordingly,
the contention of Mr. Shanti Bhusan that some other act of misconduct
which would per se be an act of misconduct though not enumerated in
S.O. 22 can be punished under S.O. 23 must be rejected.
It is thus well-settled that unless either in the Certified Standing
Order or in the service regulations an act or omission is prescribed as
misconduct, it is not open to the employer to fish out some conduct as
misconduct and punish the workman even though the alleged
misconduct would not be comprehended in any of the enumerated
misconducts.
5. The High Court fell into error when is observed that:
“The conduct of the petitioner in suppressing the material facts
and misrepresenting his past on the material aspect cannot be said to
be a good conduct. On the contrary it is unbecoming of him that he
should have deliberately suppressed the material fact and tried to
obtain employment by deceiving the Municipal Corporation. It is clearly
a misconduct ”
After thus holding that the suppressio very and suggestio false
would constitute misconduct, the High Court held even if it does not fall
in any of the enumerated misconducts, yet for the purpose of service
regulation, it would nonethe-less be a misconduct punishable as such.
We are unable to accept this view of law and it has to be rejected.”
14. The learned counsel for the respondent Corporation has
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not provided any evidence demonstrating that the alleged act
constitutes ‘misconduct’ under the applicable rules and
regulations. NFSC, Nagpur, the institution that issued the
Certificate, has not declared the petitioners’ admissions as based
on forged documents or revoked his certificates. Therefore, the
Corporation’s unilateral action to conduct a fishing and roving
inquiry into the validity of the admission and certificates is
beyond its authority. Furthermore, the petitioner fulfilled the
eligibility conditions for their appointment, which remain
unchallenged. The charges against him lacked a foundational
basis at the time of issuing the charge-sheet.
15. The respondent Corporation’s argument, as advanced by
learned counsel Mr. Maulin Raval, that any appointment or
admission secured through misrepresentation, fraud, or forgery
is void ab initio, is untenable in the absence of its determination
by NFSC, Nagpur, to that effect. The Corporation’s assumption of
authority to invalidate the admission and Certificate is
impermissible without explicit findings from the issuing
institution.
16. In conclusion, the disciplinary proceedings and the
subsequent termination order are beyond the jurisdiction,
authority, and domain of the respondent Corporation. It is
within the exclusive purview of NFSC, Nagpur to determine
whether a candidate’s admission was obtained through
fraudulent means and to revoke the certificate accordingly.
17. In view of the aforesaid reasons and observations, the
disciplinary proceedings initiated against the petitioner and the
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termination order dated 22.08.2024 are quashed and set aside.
The writ petition is allowed. There shall be no order as to costs.
Sd/-
(ANIRUDDHA P. MAYEE, J.)
KAUSHIK D. CHAUHAN
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