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2010 Supreme(Guj) 431
2011 (2) GCD 977 (Guj)
Hon'ble Mr. Justice Rajesh H. Shukla
Karangiya Devanand Ala
Versus
District Panchayat (Junagadh)
Second Appeal No. 273 of 20101-Decided on 29/12/2010
Appearance :
Mr. H.M., Prachchhak, for the Appellants No. 1.
None, for Defendants No. 1 - 2.
Point in Issue :
Whether dismissal of appellant is justified.
Headnote:Head Note :
Gujarat Panchayat Services (Discipline and Appeal) Rules, 1964 — Rules 7 and 14 — Constitution of India, 1950 — Article 311 — Dismissal — Procedure under Rules not followed — Sustainability — Appointment secured on fabricated certificate of passing the examination of PTC — In that view of the matter protection under Article 311 of Constitution is not available to appellant — It is held by Apex Court that appointment obtained by misrepresentation or fraud is ab initio void and, therefore, the protection under Article 311 would not be attracted — In that circumstance appellant can not also claim that dept. inquiry under the Rules is required to be followed — As a result second appeal fails and it is dismissed.
Held :
Protection under Article 311 would be available only when the person is an employee appointed by the regular procedure. In the present case, the appointment itself is void ab initio which was secured by fraud and by misrepresentation. The Hon’ble Apex Court in a judgment reported in (2008) 13 SCC 170 clearly observed that any such appointment obtained by misrepresentation or fraud would be void ab initio and, therefore, the protection under Article 311 would not be attracted. Therefore, petitioner cannot claim that departmental inquiry under the Gujarat Panchayat Services (Discipline & Appeal) Rules, 1964 was required to be followed. [Para 6]
Law Laid Down :
Any appointment obtained by misrepresentation or fraud would be void ab initio and, therefore, protection under Article 311 would not be attracted.
Rajesh H. Shukla, J.—The Present Second Appeal has been filed by the appellant-original plaintiff posing the following substantial questions of law.
(A) Whether, the appellant has been proved guilty of anything culpable for suppressing the truth or suggesting a falsehood, withholding any documents which he should have been produced or failed in obligation cast upon him in the process of selection?
(B) Whether once the equity is created, the appointing authority can pass the order of dismissal after such long time of 7 years.
(C) Whether the detailed procedure provided under the Rules, more particularly Rule 7, Sub-rules (1) to (14) of the Gujarat Panchayat Services (Discipline & Appeal) Rules, 1964 was followed as it is mandatory?
(D) Whether the action of the respondent authority in terminating the service of the appellant without following statutory rules is in violation of Article 311 of the Constitution of India?
2. The short facts of the case, briefly stated, are that the appellant-original plaintiff filed Regular Civil Suit No. 5 of 1995 before the learned Joint Civil Judge (Senior Division), Porbandar. After considering the material and evidence, the Trial Court dismissed the suit vide judgment and order dated 19th July, 2002. Thereafter, Regular Civil Appeal No. 21 of 2002 came to be preferred against the judgment of the Trial Court before the learned Assistant Judge, Porbandar, which also came to be dismissed by the learned Additional District Judge, Porbandar vide judgment and order dated 30th November, 2010 and, therefore, the present Second Appeal has been filed posing the aforesaid substantial questions of law.
3. As discussed in detail by both the Courts below, the plaintiff appeared for selection for the post of Primary Teacher and had submitted the mark-sheet with regard to passing the examination of PTC. The said mark-sheet was sent to the concerned authority for verification and the State Examination Board has found it to be fabricated and, therefore, the notice was issued. The case of the appellant-original plaintiff has also been discussed by the Lower Appellate Court and has very specifically stated that the appellant-original Plaintiff had passed the said examination in the year 1985, for which the mark-sheet has been produced at Exh.37 bearing No. 2666. Another mark-sheet is also produced at Exh.52, wherein he is said to have passed in the year 1986. Therefore, the Lower Appellate Court has specifically observed that if he had passed the examination in the year 1986, then why did he attach the mark-sheet of 1985 of the second year examination which has been produced at Exh.37. This aspect has been considered by both the Courts below and both the Courts below have given the concurrent findings which has been assailed by posing aforesaid substantial questions of law.
4. Learned advocate Mr. H.M. Prachchhak has referred to the deposition of Bhanbha Sarvaiya at Exh.62 who was the District Primary Education Officer and has tried to submit that the finding arrived at by the Courts below is contrary to the evidence/deposition of the witness examined by the defendants. Though these submissions have been made, it is not possible to accept the same in view of the fact that if the entire evidence at Exh.62 is read, it mixed more than three years. The mark-sheet at Exh.37 which has been produced bearing No. 2666 has been found and confirmed by the Board that it is not genuine and admittedly the appellant-original plaintiff has produced a mark-sheet for the year 1986 bearing No. 2870 which is another mark-sheet for the exam of the subsequent year. Further, if there was any mistake or correction to be made, then the mark-sheet of the year 1985 itself would have been corrected and it would not be of the subsequent year.
5. Another facet of the argument made by learned advocate Mr. Prachchhak is that he has been working since seven years and, therefore, the procedure under Rule 7(1) to (14) of the Gujarat Panchayat Se
