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Gujarat High Court
Judgename :B.C.PATEL
DIPENDRA G.CHOKSI - Appellant
Versus
KAILASHCHANDRA C.DHOOT - Respondent
MISC.CRI.APPLN.87 of 1991
Decided On : 12/17/1993
Employment and service matter – Constitution of India, 1950 – Articles16 and 226 – Government Resolution – Appointment of Cadre of Jr. Clerks – Promotion – prayed for direction to the respondent authorities to treat him in the common cadre of Jr. Clerks from the date of his appointment and to give him seniority in the said cadre accordingly and to give him deemed date of promotion in the higher cadre and for other consequential benefits. Subsequently, by amending the petition, the petitioner has also prayed for direction to the respondent authorities to apply scheme as contained in Government Resolution dated 5th of July, 1991 and to give him higher scale with effect from the date he has completed nine years service in the pay scale of Rs. 950-1500 and for other consequential benefits flowing there – Held, Court would have considered case of petitioner for appropriate relief after expiry of about ten years in service but unfortunately because of conduct of petitioner, such relief cannot be granted to the petitioner as early as 1982-83. In fact, the conditional offer was made to petitioner in the year 1982 which he accepted and unfortunately failed to fulfil condition – He was appointed as Section Writer on purely temporary and ad hoc basis with effect from 7th of July, 1982 vide order dated 6th of July, 1982. Such appointment was conditional. The petitioner failed to acquire the requisite speed of typing 30 words per minute within one month – He, therefore, applied vide application dated 12th of October, 1982 that he should be sent back to his parent post of Telephone Operator – Thus, by his conduct, he has forgone the opportunity which was provided to him to get himself regularized – After lapse of reasonable time from October, 1982, some directions is required to be issued – In opinion of this Court, in the facts and circumstances of this case, such direction can be issued so as to be effective from 3rd of July, 1987, i. e. , date on which the post of Telephone Operator is re-designated in the cadre of Junior Clerk – Question is that holder of an isolated post not belonging to any cadre is not liable to stagnate on same post for the whole career and that consistent with the opportunity to develop and advance, promotional avenue shall have to be provided and it is expected of an employer to provide for such opportunity. As stated here-in-above, such obligation shall have to be read on the employer as flowing from Art. 16 of Constitution of India – A person is appointed for a whole career; a career with no opportunity to advancement and development, is no career at all. Such a situation is worse than serfdom. Art. 16 of Constitution does not encourage serfdom or state of slavery, where an employee is simply exploited with no realistic positive promise or opportunity to move forward – Consistent with the underlying spirit of Art. 16 of the Constitution of India, a Court of law can direct the employer of an employee recruited on an isolated post to provide opportunity to develop and advance to holder of such post so that equality of opportunity in the matter of employment is not denied to such an employee – Consistent with this principle, I would direct the respondent to absorb regularly the petitioner in cadre of Junior Clerk with effect from 3-7-1987 and to count his seniority in said cadre with that date and to provide other benefits in same cadre flowing from his absorption in said cadre – Directions issued – Order accordingly.
( 1 ) PETITIONERS-ORIGINAL accused have preferred this application under sec. 482 of the Criminal Procedure Code for quashing the process issued by metropolitan Magistrate, 9th Court, in Criminal Cases Nos. 2027 of 1990, 1954 of 1990, 1955 of 1990 and 2028 of 1990.
( 2 ) ON different dates goods were obtained for which payments were made by cheques and as the cheques were dishonoured the complaints referred to hereinabove came to be filed against the petitioners-original accused for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881. So far as parties to the present proceedings are concerned, they are the same parites in all the petitions and the question involved is also the common question, and hence all the petitions are disposed of by this common judgment.
( 3 ) FEW relevant facts are as under : opponent No. 1 is the Manager of Shree Trading Corporation which deals in the business of caustic soda at Ahmedabad. Petitioner No. 1 is the Managing director while petitioner No. 2 is the Director of M/s. Sanchem Enterprise, a registered company under the Companies Act.
( 4 ) SO far as Miscellaneous Criminal Application No. 87 of 1991 is concerned, further facts are that the accused approached the complainant in November 1989 and placed an order for supply of caustic soda, and accordingly material was supplied. Petitioners were required to make payment of Rs. 19,832. 00 towards cost of the material. It is alleged in the complaint that, "the accused has issued a cheque of Vijaya Bank dated 24-6-1990 bearing No. 443466 for Rs. 19,832. 00". The said cheque was returned by the banker and inspite of the notice as the payment was not made complaint is filed. So far as Miscellaneous Criminal Application No. 105 of 1991 is concerned, the facts are that the accused approached in November 1989 and placed an order for supply of caustic soda which the complainant supplied. It is alleged in the complaint "that the accused were required to make the payment of Rs. 1,35,004. 00 towards the cost of the materials. The accused has issued 3 cheque of Vijaya Bank dated 31-3-1990 bearing No. 443552 for Rs. 44,585. 00, dated 28-9-1990 bearing No. 443463 for Rs. 46,851. 00 and dated 27-5-1990 bearing no. 443465 for Rs. 43,568. 00. When the said cheques were presented in the Bank and as the same were dishonoured, notice was issued to the petitioners. The petitioners failed to make payment and hence complaint came to be filed.
( 5 ) SO far as Miscellaneous Criminal Application No. 132 of 1991 is concerned, the facts are that the accused approached the complainant and placed an order for supply of caustic soda which complainant supplied and accused were required to make payment of rs. 93,943/ -. It is alleged in the complaint that "after receiving the materials the accused had issued two cheques of Vijaya Bank, Navrangpura Branch, Ahmedabad, dated 10-6- 1990 for Rs. 42,809. 00 and dated 17-6-1990 for Rs. 51,134. 00 bearing Nos. 443464 and 443467 respectively". The cheques were presented to the banker for collections but the same were dishonoured and hence a notice was given to the petitioners and inspite of that as payment was not made the complainant was obliged to file a complaint under Sec. 138 of the Negotiable Instruments Act.
( 6 ) SO far as Miscellaneous Criminal Application No. 133 of 1991 is concerned, it is alleged in the complaint that the petitioners placed an order for supply of caustic soda which was supplied by the complainant. It is alleged in the complaint that,"after receiving the materials the accused has issued two cheques of Vijaya bank, Navrangpura Branch, Ahmedabad, dated 30-6-1990 for Rs. 18,494. 00 and dated 30-6-1990 for Rs. 33,374. 00 bearing Nos. 443469 and 443468 respectively. "it is alleged in the complaint that the cheques were presented for collection and the same were returned by the bankers and hence the complainant was obliged to give a notice to the petitioners and inspite of that they f
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