Gujarat High Court
Rahul Aydanbhai Vank vs State Of Gujarat on 5 September, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/889/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 889 of 2018
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RAHUL AYDANBHAI VANK
Versus
STATE OF GUJARAT
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Appearance:
MR GM JOSHI(370) for the PETITIONER(s) No. 1
MR KM ANTANI, AGP (99) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 05/09/2018
ORAL ORDER
Heard learned advocate Mr.G.M. Joshi for the petitioner and learned Assistant Government Pleader Mr.K.M. Antani for the respondent - State.
1.1 In the facts and circumstances of the case and with consent and request of both the sides, the petition is taken up for final consideration.
2. By filing the present petition under Article 226 of the Constitution, the petitioner has prayed to set aside order dated 23rd September, 2016 whereby his services came to be terminated. It is further prayed to direct the respondent authorities to reinstate the petitioner on his original post with continuity of service and all consequential benefits as if the order of termination was never passed.
3. The petitioner was appointed as Forest Page 1 of 9 C/SCA/889/2018 ORDER Assistant on 08th August, 2013 at Meghraj Range, Sabarkantha Forest Division. His appointment was contractual in nature. Before the appointment to the said post could be fructified for the petitioner, he cleared physical examination as well as written test. The petitioner resumed his duties with effect from 15th August, 2013. The petitioner was also given training for six months from 26th August, 2013 to 28th February, 2014 subsequent to his appointment.
3.1 The impugned order dated 23rd September, 2016 came to be passed by the Chief Conservator of Forests, Gandhinagar, Forest Department, Gandhinagar, against the petitioner stating that the petitioner had shown dereliction in his duty ever since he joined duties, that he did not submit the necessary diaries. It was alleged that the petitioner was acted insubordination by not following the instructions of the superior. It was further stated that in the GFPD Scheme, the Assistant Conservator of Forests noticed certain irregularities. In respect of that also, the petitioner was responsible. Several instances are mentioned in the impugned order charging the petitioner with other insubordination, non-compliance of the instructions of the superiors and about having remained absent without any prior permission. The details of the allegations are not necessary to be mentioned to burden this order, however the instances of misconducts were alleged against the petitioner and it was provided in the order that in view of those instances, negligency in duties and unsatisfied work, his service was terminated.
Page 2 of 9 C/SCA/889/2018 ORDER4. Learned advocate for the petitioner submitted that the order was on the face of it stigmatic and since it was passed on the allegations of misconduct, it was stated that such order could not have been passed without holding the inquiry. Learned advocate for the petitioner submitted that neither any chargesheet was issued nor any inquiry was held and the order came to be passed terminating the services of the petitioner.
4.1 The petition was contested by the respondents by filing affidavit-in-reply raising main contention as was harped by learned Assistant Government Pleader in course of oral submissions, was that the nature of employment of the petitioner was contractual. It was contended that since he was on contractual pay for five years and that since had had accepted the terms and conditions of the contractual appointment, termination of service after giving one month notice was justified. Affidavit-in-reply repeated certain details of allegations against the petitioner as well as mentioned about the report of the District Conservator of Forests pursuant to which the punishment inflicted upon the petitioner.
5. In Manishbhai Nayanbhai Mod v. Vadodara Municipal Corporation decided by judgment dated 30th November, 2017 the question addressed was the following question. The same question arises in the facts of the present case which is as under.
5.1 In wake of the impugned order, the Page 3 of 9 C/SCA/889/2018 ORDER question arise is as to whether the order was punitive and whether it ought to have been preceded with an inquiry against the petitioner in respect of what is alleged in the impugned order, even though the petitioner was a temporary employee appointed for five years.
5.2 In Manishbhai Nayanbhai Mod (supra), the position of law was discussed, which is highlighted and reproduced as under.
"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) 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 Page 4 of 9 C/SCA/889/2018 ORDER 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) 5.3 Having delineated the aforesaid principles, the Apex Court held that the order in the case before it could not be treated as a simple order of retrenchment and that it was an order passed by way of punishment. It was held that such order of dismissal which was passed without holding a regular departmental inquiry cannot be allowed to be sustained.
5.4 The above statement of law that if the order is punitive and stigmatic in nature, even if the employee concerned is a temporary employee or holding the post as on probation, his dismissal or removal would warrant a regular inquiry and full-fledge compliance of natural justice, emanaged from the early decision of the Apex Court in Anoop Jaiswal v. Government of India [(1984) 2 SCC 369]. In that case, the Apex Court held that it is permissible for the Court to go behind the formal order of discharge so as to find out the real cause of action. In that case, the appellant was an IPS Officer, undergoing training as a probationer, arrived late by about 22 minutes at the place, even though prior intimation was sent about the time on which, the candidates were required to reach the venue. The incident of delayed reporting was considered to be one by the authorities calling for an inquiry and an explanation was sought for from the Page 5 of 9 C/SCA/889/2018 ORDER petitioner and all other probationer-trainees who had arrived late. On the basis of explanation, the Director recommended the Government for discharge of the appellant from service. The Government passed order of discharge on the basis of recommendation of the Director with whom, the only ground prevailing was that the appellant did not show any sign of repentance. The High Court dismissed the Writ Petition. However, the Supreme Court allowed the Appeal and held that the order was punitive. The appellant was directed to be reinstated with full benefits.
5.5 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 Court stated, it is always open to the court before which the order is challenged, to go beyond the form and ascertain the true 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) 5.6 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. 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.
5.7 In Ratnesh Kumar Choudhary (supra) also the Supreme Court considered its own various decisions on the aspect and after referring to the decision in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21] observed that the Page 6 of 9 C/SCA/889/2018 ORDER proposition of law operating two ways. In certain cases of temporary servants and probationers if the inquiry undertaken about the very conduct forms the motive of termination order, then the termination could not be said to be punitive merely because principles of natural justice have not been followed. In such circumstances, without becoming stigmatic, the employer can exercise its right to terminate service of the employee concerned. In the other line of decisions, the Supreme Court has ruled that if the facts revealed in the inquiry or from the narration of the order itself that the inquiry into the conduct was not the motive but it was a foundation and the allegation of misconduct considered against employee becomes foundation of termination of service of temporary servant or probationer, such action would become punitive and it would make the order legally unsound. The Supreme Court in Ratnesh Kumar Choudhary (supra) thereafter referred to the above quoted observations from Gujarat Still Tubes Limited (supra) terming them as instructive."
5.3 All the aforesaid principles squarely apply in facts of the case of the present petitioner. The decision in Manishbhai Nayanbhai Mod (supra) came to be confirmed by the Division Bench in Letters Patent Appeal No.189 of 2018 decided on 20th February, 2018. In addition to the other reasoning endorsed to by the Division Bench, the following was also stated which stands in complete answer to the contentions raised on behalf of the respondents.
"4.1 ... ... ... As a necessary corollary, when there is a breach of procedure of instituting full-fledged departmental inquiry, particularly, 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."
5.3 When the order impugned in this petition is Page 7 of 9 C/SCA/889/2018 ORDER scanned and considered in light of and by applying the aforesaid principles, even without lifting the veil, it could be concluded that the order casts stigma. The order was manifestly stigmatic as was passed on the allegations of misconduct. On a plain reading, it was a stigmatic action taken to terminate petitioner's service. Such an action could not have been taken even though the petitioner was a fixed period employee without giving the petitioner a full- fledged opportunity to defend and after holding regular departmental inquiry. The employer is not allowed to hire and fire even if the employee, may be ad hoc or probationer, and the services cannot be given a go-bye by one stroke of pen on the ground of misconduct by casting stigma, without holding a regular inquiry in accordance with the principles of natural justice.
6. In view of above, the petitioner is entitled to be reinstated in service. He was appointed on 08 th August, 2013. His tenure was of five years. The impugned order of termination came to be passed on 10th August, 2016. Therefore, he worked for about three years. The petitioner would be entitled to continue in service on the same post for further two years until he completes the total period of five years.
7. For the foregoing reasons and discussion, the action on part of the respondents in terminating the services of the petitioner is declared and held to be illegal. The impugned order of terminating the Page 8 of 9 C/SCA/889/2018 ORDER services dated 08th August, 2013 is hereby quashed. The respondents are directed to take back the petitioner in service on his original post and position with continuity of service and salary/wages for the interregnum as well as all consequential benefits as if the order of termination was not passed. Reinstatement of the petitioner directed by this order shall be upto the original period of his employment as per the order of appointment. The resultant monetary benefits shall be paid to the petitioner within a period of eight weeks from the date of receipt of this order.
The petition stands allowed. Direct service is permitted.
(N.V.ANJARIA, J) Anup Page 9 of 9