Gujarat High Court
Kirtikakumari Barjulbhai Patel vs State Of Gujarat on 13 September, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/SCA/17120/2022 ORDER DATED: 13/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17120 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 17122 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 17121 of 2022
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KIRTIKAKUMARI BARJULBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3,4
MR MANAN MEHTA, AGP for the Respondent(s) No. 1,2,5
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 13/09/2023
ORAL ORDER
All the three Special Civil Applications involve commonality of facts and identical issues, therefore they were taken up together for final disposal by this common order.
1.1 The petitions were taken up for a final consideration today having regard to the compass of the controversy, and in light of the request and consent of learned advocates appearing for the respective parties.
1.2 Rule, returnable forthwith in all the three Special Civil Applications.
1.3 Learned Assistant Government Pleader Mr.Manan Mehta waives service of rule on behalf of the respondent State and its Page 1 of 13 Downloaded on : Mon Sep 18 20:36:28 IST 2023 NEUTRAL CITATION C/SCA/17120/2022 ORDER DATED: 13/09/2023 undefined authorities and learned advocate Mr.Munshaw waives service of rule on behalf of the rest of the respondents.
1.4 Heard learned advocate Mr.A.S.Asthavadi for the petitioners and learned advocates for the respective respondents in all the three petitions.
2. All the three petitioners have challenged the orders of terminating their services on the ground that though they are stigmatic and came to be passed without holding full fledged departmental inquiry.
3. Noticing the facts from the first petition which is Special Civil Application No.17120 of 2022, the petitioner was appointed as Gram Rojgar Sevak by order dated 14.3.2011 on contractual basis. He came to be continued in service. Order dated 24.5.2022 was passed against the petitioner by the Additional District Program Coordinator, MGNREGA, Navsari terminating the services of the petitioner alleging the commission of irregularity on part of the petitioner in making payment to the job card holders. Details were given as to how excess amounts were paid in different financial years.
3.1 It was alleged in the aforesaid order that the petitioner was guilty of dereliction of duty and that the complaints were received against the petitioner about facts of irregularities. It was also observed in the order that the complaints were received against the petitioner about financial misappropriation. It was alleged that the petitioner by his conduct caused financial loss to the department. Stating that the petitioner was guilty of Page 2 of 13 Downloaded on : Mon Sep 18 20:36:28 IST 2023 NEUTRAL CITATION C/SCA/17120/2022 ORDER DATED: 13/09/2023 undefined financial defalcation about serious indiscipline and serious misconduct her services were liable to be terminated, the same were dispensed with. Not only that the amount of Rs.48,363/- was sought to be recovered from the petitioner.
3.1.1 The challenge to the said order was contested by the defendant by filing affidavit-in-reply stating that the petitioner was employed in Mahatma Gandhi National Rural Employment Guarantee Scheme and that she was only a contractual employee. It was stated that incidents of irregularities were noticed therefore report was obtained against the petitioner in that regard which was submitted on 26.4.2022. It was stated that the petitioner was responsible for duplicating job cards and making wrongful payment to the job card holders and that the petitioner has caused loss to the public exchequer.
3.2 The facts involved in the second petition are similar, where the petitioner was appointed as Gram Rojgar Sevak on 1.3.2011. He also was a contractual employee. He was served with the show-cause notice dated 16.2.2022 which was followed by order dated 25.2.2022 impugned in the petition whereby his services came to be terminated by the competent authority. The allegations against the said petitioner was similar in nature namely that the job card of labourers were not updated, that the muster was tampered with and that the labourers names were not mentioned in the muster who were working at the site and vice-a-versa. On such basis, it was further alleged that the petitioner has committed serious misconduct, therefore his services were liable to be terminated.
Page 3 of 13 Downloaded on : Mon Sep 18 20:36:28 IST 2023NEUTRAL CITATION C/SCA/17120/2022 ORDER DATED: 13/09/2023 undefined 3.3 The third case in Special Civil Application No.17122 of 2022 was no different. The petitioner was appointed on 14.3.2011 as Gram Rojgar Sevak on contractual basis who was served with show-cause notice dated 5.3.2022 followed by order dated 24.5.2022 terminating his services. The allegations against the petitioner were similar in nature about issuance of duplicate job card to the labourers and making payment for excess days worked, causing financial loss to the public exchequer. For the details noted in the order of termination, it was stated that the petitioner was guilty of committing irregularities, serious indiscipline and serious misconduct to be liable to be driven out of service. Accordingly his services were terminated.
4. It may be stated at this stage that all the petitioners had filed Special Civil Applications which were in group of petitions being Special Civil Application No.13621 of 2014 seeking to regularize their services. Those petitions came to be partly allowed in case of each three petitions with following observations made by the court, "The prayer of the petitioner to regularize their contractual services and and make them permanent on the establishment is rejected. Limited immunity that is made available to the petitioner is by allowing them to continue onthe ir contractual employment and not to be replaced by other set of contractual employees on adhocism. The petitioners shall be continued in the existing cadre as long as the said Scheme continues, but purely on contractual basis and such employment shall be coterminus with the scheme, subjected to evaluation of their performance, service Page 4 of 13 Downloaded on : Mon Sep 18 20:36:28 IST 2023 NEUTRAL CITATION C/SCA/17120/2022 ORDER DATED: 13/09/2023 undefined and disciplinary rules as may be made applicable to them. The respondent State shall insist on periodical upgradation of knowledge, improvisation of technical skill and overall preparedness on the subject, so also on computerisation. "
4.1 It is an admitted fact that the petitioners have been retained and continued in service as above. The Scheme under which they have been working is also continued.
5. In all the three cases, when the contents and recitals in the orders of dismissal are seen, there is no gainsaying that they contain the allegations of misconduct. By their very kind and nature, the orders are stigmatic.
5.1 The law is well settled that when the orders are passed against government servant, whether he is contractual employees, fixed pay employees or the appointee for fixed period, he or she cannot be stigmatized and penalized without following the procedure of holding the departmental inquiry.
5.2 The very issue was considered by this court in Chetan Jayantilal Rajgor Vs. State of Gujarat being Special Civil Application No.4439 of 2017 in which it was held that the stigmatic order of termination or imposing punishment was not permissible in law without holding full-fledged departmental inquiry. The decision came to be confirmed in Letters Patent Appeal No.1596 of 2019 decided on 24.7.2020.
5.2.1 The Division Bench reproduced the discussion of law from the order of learned single Judge. The discussion becomes Page 5 of 13 Downloaded on : Mon Sep 18 20:36:28 IST 2023 NEUTRAL CITATION C/SCA/17120/2022 ORDER DATED: 13/09/2023 undefined relevant to address the present controversy.
5.2.2 While addressing the issue, the distinction between motive and foundation was explained in the following paragraphs, "5. The question arises is whether the order was punitive and amounted to stigma which ought to have preceded by a regular inquiry against the petitioner in respect of the allegations levelled against the petitioner employee eventhough petitioner was appointed for a fixed term of five years.
5.1 In judging whether termination is simpliciter or punitive, a trite distinction is made between motive of the order and foundation of the order. In Chandra Prakash Shahi v. State of U.P. [(2000) 5 SCC 152], the Supreme Court explained the concept of motive and foundation in respect of probationer as under:
"Motive is the moving power which impels action for a definite result, or to put it differently, motive is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? It if was the factor of general unsuitability of the employee for the post held by him, the act would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were to be true in the preliminary inquiry."
(para 29) (emphasis supplied) Page 6 of 13 Downloaded on : Mon Sep 18 20:36:28 IST 2023 NEUTRAL CITATION C/SCA/17120/2022 ORDER DATED: 13/09/2023 undefined 5.2 The Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha [(1980) 2 SCC 593] stated and observed thus, "53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used." (Emphasis supplied) (Para 9) 5.4 The principle stated was that even the form of the order may be merely a camouflage for order of dismissal actually passed on the basis of misconduct. In such circumstances, the Apex Page 7 of 13 Downloaded on : Mon Sep 18 20:36:28 IST 2023 NEUTRAL CITATION C/SCA/17120/2022 ORDER DATED: 13/09/2023 undefined Court stated, it is always open to the court before which the order is challenged, to go beyond the form and ascertain thetrue character of the order. The Supreme Court held, "If .... .... .... the court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground where the aggrieved officer is not afforded a reasonable opportunity to defend himself as provided in Article 311(2). It is wrong to assume that it is only when there is a full scale departmental enquiry any termination made thereafter will attract the operation of Article 311(2)." (Paras 11 and 13) 5.2.3 It was further observed that, it is the foundation of the order which really matters. The Supreme Court in Anoop Jaiswal (supra) stated that if from the record and the attendant circumstances of the present case it becomes clear that the real foundation for the order of discharge of the appellant- probationer was the alleged act of misconduct, the impugned order would amount to termination of service by way of punishment and in absence of any enquiry held in accordance with Article 311(2), it was liable to be struck down.
5.2.4 It was noted that, the Supreme Court thereafter directed reinstatement of the appellant of the said case in service with the same rank of seniority he was entitled to before the impugned order passed as if it had not been passed at all.
5.3 In Manishbhai Nayanbhai Mod v. Vadodara Municipal Corporation [2018(2) GLR 1636] the petitioner was Assistant Page 8 of 13 Downloaded on : Mon Sep 18 20:36:28 IST 2023 NEUTRAL CITATION C/SCA/17120/2022 ORDER DATED: 13/09/2023 undefined Station Officer and was appointed for a fixed term. It was alleged against him that while serving in the Fire Brigade Branch of the Vadodara Municipal Corporation on the post of Assistant Station Officer, petitioner misbehaved with the Telephone Operator and tried to injured Telephone Operator physically. In the impugned order it was mentioned that while being on the sensitive post petitioner acted with negligency and carelessness in discharge of duties. Show-cause notice was issued against the petitioner and his reply was solicited. Thereafter his services put to an end, this Court referred all the aforesaid decisions to come to the conclusion that the order was founded on the allegations of misconduct and that it was punitive in nature casting stigma. It was held that, "Such an action could not have been taken, eventhough the petitioner was a fixed period employee, without giving the petitioner a full- fledge opportunity to defend and thus by holding a regular departmental inquiry.".
5.3.1 Decision in Manishbhai Nayanbhai Mod (supra) was challenged by way of Letters Patent Appeal No.189 of 2018, which came to be dismissed. The Division Bench, confirming the decision in Manishbhai Nayanbhai Mod (supra), observed as under.
"4.1 ... ... ... The above act on part of the competent authority of appellant - Corporation was not only stigmatic, but contrary to law laid down by the Apex Court to which reference is made by learned Single Judge and distinguishing the facts of the present case it was found that termination was punitive. As a necessary corollary, when there is a breach of procedure of instituting full- fledged departmental inquiry, particularly, Page 9 of 13 Downloaded on : Mon Sep 18 20:36:28 IST 2023 NEUTRAL CITATION C/SCA/17120/2022 ORDER DATED: 13/09/2023 undefined when termination order referred to following of Gujarat Civil Services [Discipline & Appeal] Rules, 1971, the issuance of show cause notice, receiving reply and then to take final decision to terminate services of an employee was unjust, unreasonable, arbitrary, in breach of the Rules, 1971, violative of principles of natural justice and Article 14 of the Constitution as it would not make any difference whether the employee was appointed temporarily for a fixed term on a fixed salary incorporating various conditions."
5.4 In another decision in Sandip Ajitsinh Vaghela v. State of Gujarat being Special Civil Application No.12071 of 2018 decided on 26th February, 2019 the same question had arisen where also the petitioner was Junior Clerk employed on temporary basis. In Rahul Aydanbhai Vank v. State of Gujarat being Special Civil Application No.889 of 2018 decided on 05th September, 2018, the petitioner was a contractual employee who was dismissed on the ground of insubordination. The order was found to have been passed on the allegation of misconduct. Same principles were applied and held that services could not have been terminated without undergoing the inquiry.
5.4.1 The aforesaid decision in Rahul Aydanbhai Vank (supra) was also confirmed in Letters Patent Appeal No.841 of 2019. In the following paragraph, the Letters Patent Bench referred to Manishbhai Nayanbhai Mod (supra) and other decisions to come to the following conclusion to clearly observe that full-scale formal inquiry was requirement of law before the services could have been terminated.
Page 10 of 13 Downloaded on : Mon Sep 18 20:36:28 IST 2023NEUTRAL CITATION C/SCA/17120/2022 ORDER DATED: 13/09/2023 undefined "8. Even decision relied by learned Assistant Government Pleader in the case of Chaitanya Prakash and Another v. H. Omlarappa reported in (2010) 2 SCC 623 quotes decision in the case of Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences [(2002) 1 SCC 520] where three tests are enumerated to determine whether in substance an order of termination is punitive or not. We find in the present case all above tests namely a full scale formal inquiry, allegation involving moral turpitude or misconduct and culminating into guilt stands satisfied and therefore we have no hesitation to hold that the learned Single Judge committed no error of fact or law or jurisdiction warranting interference in this appeal under Clause 15 of the Letters Patent."
5.4.2 The court proceeded to discuss and observe, "When the impugned order is considered in light of the above principles and the position of law, it could be well discerned that the the event of filing of F.I.R. against the petitioner was treated as base and it was concluded readily by the respondents that the petitioner had committed misconduct for accepting the bribe. Upon this foundation, the termination was effected. It was on the ground of misconduct and therefore the stigmatic order, which could not have been passed without a full scale inquiry.
6.1 An attempt was made in vain by learned advocate for the respondents that there was compliance of natural justice as the notice was issued to the petitioner. A mere notice would not suffice. No inquiry was held, no charge was framed against the petitioner. Without issuing the charge and without putting the petitioner to knowledge of the allegation which he was to precisely answer, the Page 11 of 13 Downloaded on : Mon Sep 18 20:36:28 IST 2023 NEUTRAL CITATION C/SCA/17120/2022 ORDER DATED: 13/09/2023 undefined principles of natural justice could not be said to be followed when the order was founded on misconduct. As held by the Division Bench of this Court in the judgment above, it necessitated a full scale inquiry against the petitioner after issuing show-cause notice and by framing appropriate charge, conducting it in accordance with the natural justice.
5.4.3 The Division Bench considered the contention of the State Authorities in para 8 that those employees who are on contract basis, may not be subjected to full scale inquiry to negative the said contention.
"The bone of contention of appellants - State authorities is that since the original petitioners are employed on a contract basis and fixed pay, the Department is not under an obligation to conduct a detailed full-scale departmental inquiry. Now, this contention has been the subject matter of scrutiny on earlier occasion before a Coordinate Bench in Letters Patent Appeal No.189 of 2018 between Vadodara Municipal Corporation v. Manishbhai Nayanbhai Modh, decided on 20.2.2018. The relevant observations contained in the said decision are reflecting in Para.4.1 which are also based upon the decision of the Apex Court and in consonance with the provision of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The said observations have also been considered at length by the learned Single Judge which are reflecting in Para. 5.7 of the impugned order. "
5.5 The contention was raised in vain by the respondent State that as the show-cause notice was issued to the petitioners natural justice was complied with. As held in above decision, mere issuance of show-cause notice would not suffice unless Page 12 of 13 Downloaded on : Mon Sep 18 20:36:28 IST 2023 NEUTRAL CITATION C/SCA/17120/2022 ORDER DATED: 13/09/2023 undefined charge is framed and regular inquiry is conducted. When a show-cause notice levelling the specific charge followed by full fledged departmental inquiry conducted in accordance with the principles of natural justice, is the requirement in law. By dispensing with the regular departmental inquiry, yet terminating the services of the petitioner by passing stigmatic order, an evident illegality has been committed.
5.6 As noticed above, by virtue of order of this court, passsed in Special Civil Application No.13621 of 2014, the petitioners are directed to be continued until the Scheme under which they are employed, continues.
6. As a result of above discussion, all the three petitioners deserve to be granted relief. They are allowed accordingly.
6.1 The respective orders impugned in the respective three petitions terminating the services of the petitioners are set aside. The petitioners shall be reinstated in service on their original posts with all consequential benefits within a period of two weeks from the date of service of this order.
7. The petitions stand allowed. Rule is made absolute in all the three petitions.
(N.V.ANJARIA, J) Manshi Page 13 of 13 Downloaded on : Mon Sep 18 20:36:28 IST 2023