Mahendrabhai Ambalal Rathod vs State of Gujarat and Others

Rajesh H. Shukla, J.—The present petition under Article 226 of the Constitution of India has been filed by the petitioner challenging, inter alia, the order at Annex. J terminating the services of the petitioner by respondent No. 3 company with whom he was serving at the relevant time. It is further prayed that he may be directed to be reinstated. It is also prayed that the respondent authorities have no power to make endorsement on the certificate at Annex. F (conveniently prayed for challenging the order of suspension of the boiler attendant certificate for a period of one year).

This petition, therefore, in effect challenges the termination of service from a private company, respondent No. 3 herein, and also the suspension of the certificate for a period of one year by respondent No. 2 in the year 1994 on the basis of which his services were terminated by respondent No. 3.

Learned advocate Mr. Gaurav Chudasma for learned advocate Mr. Yatin Soni for the petitioner submitted that the petitioner was working under respondent No. 3 company and at the instance of respondent No. 2 his certificate of boiler attendants was suspended for a period of one year as per the order passed at Annex. F dated 1.10.1993 and his services were terminated by respondent No. 3. Learned advocate Mr. Chudasma further submitted that even though the service has been terminated by respondent No. 3, his suspension or endorsement for suspension in the certificate for a period of one year would affect as, when he goes for employment or job to another company, it would cause prejudice and therefore it may be set aside.

Learned advocate Mr. Chudasma referred to and relied upon Rule 53(3) of the Gujarat Boiler Attendants'' Rules, 1966 (hereinafter referred to as ''the Rules'') and submitted that as provided in this Rules an inquiry is required to be made against the certificate holder regarding negligence etc. and endorsement on the certificate is required to be made by the Chief Inspector of Boilers and Sub-rule (3) of Rule 53 provides,

The proceedings shall be held in the presence of the person whose conduct forms the subject of inquiry and he shall have an opportunity of making any statement he may wish to make and or producing any evidence in his defence.

Therefore, it was submitted that the proceedings were not held in his presence and therefore he was denied the opportunity of representing his case. Learned advocate Mr. Chudasma therefore submitted that the present petition may be allowed.

Learned advocate Mr. Jigar Patel appearing for learned advocate Mr. KM Patel for respondent No. 3 submitted that the services were required to be terminated as his certificate of boiler attendant was suspended by respondent No. 2 after holding an inquiry and therefore they cannot continue him as per the law and therefore they have discontinued his services.

He has also submitted that the services are terminated on the basis of suspension of his certificate in the year 1994 and therefore the present petition has become infructuous as neither any writ nor relief could be claimed against respondent No. 3 and the challenge to suspension of certificate for a period of one year has also become infructuous after 16 years. Therefore, the present petition may be disposed of.

Learned AGP Mr. Amit Patel also submitted that the main prayer is regarding termination of service by respondent No. 3, which is a private company, on the basis of suspension of the certificate by respondent No. 2. He therefore submitted that the petition has become infructuous as the challenge regarding termination of service cannot be now made, nor any relief can be granted. He further submitted that the challenge to the suspension of the certificate for a period of one year by respondent No. 2 authority is also misconceived.

Learned AGP Mr. Patel further submitted that grievance made by the petitioner that the rules have not been followed is not correct and he referred to Rule 53 and submitted that enquiry has been made and opportunity of making a statement in the enquiry has been given for which he referred to the statement made by the petitioner herein at Annex. A dated 8.6.1992. He further submitted that on the basis of this as well as further statement dated 24.11.1992 the matter was considered and thereafter respondent No. 2 has, as per Annex. F, passed the order. He submitted that in fact it is the Board of Examiners which has taken the decision on the basis of the inquiry and the report submitted by respondent No. 2. He therefore submitted that it cannot be said to be in violation of the rules of natural justice. For that purpose he referred to Rule 54 of the Rules which provide,

Submission of proceeding before the Board.- The Secretary to the Board of Examiners shall submit the proceedings sent under sub-rule(4) of Rule 54 before the Board at its next meeting and the Board of Examiners at its discretion may allow the certificate to stand or may cancel the certificate permanently or suspend it for such period as it thinks fit.

He, therefore, submitted that it is the authority or the Board of Examiners who has considered the report and it is the discretion of the Board to suspend for such period as it may think fit. Therefore, it was submitted that under the statutory rules after such accident if discretion is exercised to suspend the certificate for a period of one year, it cannot be said to be unreasonable or unjustified. He further submitted that since it is a case regarding negligence or dereliction of duty which has resulted in suspension of the certificate, the Court may not exercise the discretion under Article 226 of the Constitution and therefore the present petition may be dismissed.

In view of rival submissions, it is required to be considered whether the present petition can be entertained or not.

As rightly submitted by learned advocate Mr. Jigar Patel for respondent No. 3, the present petition is mainly challenging the order of termination by respondent No. 3, which is a private company, and therefore prima facie the writ may not be maintainable. Another facet of the submission is that though the service is terminated by respondent No. 3 company, it is pursuant to the report made by respondent No. 2 or the Board of Examiners, which is produced at Annex. F in exercise of its statutory power. Therefore, the challenge though not specifically made in this petition in the prayer clause, ultimately, in effect, as rightly submitted by the learned advocate for the petitioner, is to the suspension of the certificate for a period of one year. Therefore, it cannot be said that the petition would not be maintainable at all and this Court should not examine or entertain the petition. Therefore, the aspect of maintainability is not required to be much deliberated.

At the same time, having considered the merits of the case that the certificate was required to be cancelled pursuant to the accident which has occurred due to alleged dereliction in duty by the petitioner as boiler attendant and therefore whether such order or the decision at Annex. F taken by the Board of examiners on the basis of the report submitted by respondent No. 2 can be said to be illegal.

There is no quarrel that as per Rule 53 of the Rules such inquiry is required to be conducted for suspension of the certificate. Rule 54 provides that the Board of Examiners shall examine and in its discretion may suspend the certificate for such period as it may think fit or even cancel the certificate also. Therefore, the decision by the Board of Examiners (Annex. F) to suspend the certificate is in exercise of statutory powers under the Rules.

Another facet of the argument is that in the inquiry which was conducted by respondent No. 2, proceedings are required to be conducted in presence of the person whose conduct form the subject of inquiry and he should have an opportunity to make a statement. This aspect has been highlighted by learned advocate Mr. Chudasma for the petitioner. However, a close perusal of the petition itself would reveal that the statement has been made by the petitioner as stated above at Annex. A dated 8.6.2002 and thereafter again on 24.11.1992 and on the basis thereof the report has been submitted by respondent No. 2 and after considering the report as well as the statement, the Board of Examiners has, in exercise of statutory powers under Rule 54 of the Rules, passed the order of suspension of the certificate.

Therefore, the moot question to be considered is whether once the powers are exercised pursuant to the statutory power vested in the authority like the Board of Examiners, the Court is required to interfere with the same and that too after such long lapse of time. It is also required to be mentioned that it was suspended only for a period of one year in the year 1994 and therefore it is not that immediately the suspension is required to be revoked as that stage has gone.

The submission of the learned advocate for the petitioner that since the endorsement would affect him in future is also misconceived as, once the cancellation or endorsement has been made in exercise of statutory power after inquiry, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India would normally refrain from interfering with the same. It is required to be mentioned that it is like interfering with the quantum of punishment as, in the facts of the present case also, after the inquiry and having considered all the aspects, the Board of Examiners, which is the competent authority, has taken the decision to pass a resolution to suspend the certificate for a period of one year, which cannot be said to be erroneous or unjustified.

Therefore, the Court is of the opinion that it does not call for any interference and the present petition deserves to be dismissed and accordingly stands dismissed. Rule is discharged. No order as to costs.