Gujarat High Court
Binaykumar K Singh vs Commissioner Health Medical Service & ... on 6 October, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/1786/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1786 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BINAYKUMAR K SINGH....Petitioner(s)
Versus
COMMISSIONER HEALTH MEDICAL SERVICE & MEDICAL EDUCATION &
2....Respondent(s)
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Appearance:
MR JV JAPEE, ADVOCATE for the Petitioner(s) No. 1
MR. SWAPNESHWAR GOUTAM, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1 - 3
RULE SERVED for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06/10/2016
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C/SCA/1786/2004 JUDGMENT
ORAL JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicant, an ad-hoc Medical Officer, terminated from the service, has prayed for the following reliefs;
(a) YOUR LORDSHIPS be pleased to issue the writ of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the decision and the proposed action of the respondents to terminate his services for the registration of the criminal case against him.
(aa) YOUR LORDSHIPS be pleased to issue the writ of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the termination order at ANNEXURE C to the petition.
(aaa) YOUR LORDSHIPS be pleased to stay the implementation, execution and operation of the termination order and be pleased to direct the respondents to allow the petitioner to discharge his duties as Medical Officer at Gambhol C.H.C Centre and draw his salaries accordingly pending admission hearing and final disposal of this petition.
(b) YOUR LORDSHIPS be pleased to restrain the respondents, their servants and agents from terminating the services of the petitioner pending admission, hearing and final disposal of this petition.
(c ) YOUR LORDSHIPS be pleased to grant such other and further reliefs as may be deemed fit in the interest of justice."
2. The writ applicant, along with the others, came to be appointed as a Medical Officer purely on the ad-hoc basis vide order dated 20th April, 1999.
3. While serving as a Medical Officer, Class II on the ad-hoc Page 2 of 20 HC-NIC Page 2 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT basis, a criminal prosecution came to be instituted for the offence punishable under sections 7, 13(1)(2)(3) read with section 13(2) of the Prevention of Corruption Act, 1988. By an order dated 30th January, 2004, the services of the writ applicant came to be terminated on twin grounds; first, the writ applicant had failed to clear the G.P.S.C. Exam and, secondly, a criminal prosecution was instituted for the offence under the Prevention of Corruption Act.
4. Being dissatisfied, the writ applicant has come up with this writ application.
5. Mr. J.V. Japee, the learned counsel appearing for the writ applicant vehemently submitted that although his client was serving as the Medical Officer, Class-II on the ad-hoc basis, yet his services could not have been terminated without a regular departmental inquiry. According to Mr. Japee, stigma could be said to have been attached to the order of the termination because, there is a reference of the prosecution under the Prevention of Corruption Act, 1988.
6. According to Mr. Japee, on both the aforesaid grounds, this writ application deserves to be allowed and the impugned order be quashed.
7. On the other hand, this writ application has been vehemently opposed by Mr. Goutam, the learned AGP appearing for the respondents. Mr. Goutam would submit that the impugned order of the termination has not violative of Article 311(1) of the Constitution of India as the order of the termination does not cast any stigma. The learned AGP would submit that the writ applicant could not be said to have been Page 3 of 20 HC-NIC Page 3 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT visited with any civil consequence. He would submit that Article 311(1) would not apply in the case of a temporary ad- hoc employee.
8. According to the learned AGP this matter is squarely covered by the decision of this Court in the case of Madan Mohan Gupta vs. State of Gujarat & Ors., Special Civil Application No.4465 of 2008, decided on 8th October, 2015.
9. He submits that there being no merit in this writ application, the same be rejected.
10. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to any of the reliefs prayed for in this writ application.
11. Mr. Goutam, the learned AGP is right in his submission that this matter is squarely covered by the judgment and order of this Court dated 8th October, 2015 referred to above.
12. In Madan Mohan Gupta (supra), this Court held as under;
"20. It is clear that the respondents terminated the services of the petitioner not because his work was not satisfactory, but because of the fact that a criminal prosecution was instituted against him for the offence punishable under the Prevention of Corruption Act, 1988. This is very clear from the para quoted above of the affidavit in reply filed on behalf of the respondent No.2. At the cost or repetition I may quote the said para as under:-
13. As regards para 7 of the petition, it is submitted that as stated above, the petitioner was an ad-hoc appointee. He was caught in a Page 4 of 20 HC-NIC Page 4 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT trap arranged by ACB while accepting a bribe of Rs.100.00 from a patient. Thus such attitude was like an un-becoming of a Government servant. As he was an ad-hoc appointee, his services were terminated without following any regular departmental enquiry. Such course of action is therefore, just, proper and legal. The petition therefore, deserves to be rejected.
21. I need to examine whether the foundation for the termination was the misconduct by the petitioner in accepting or demanding the illegal gratification punishable under Sections 7 and 13 of the Prevention of Corruption Act, 1988 or the same was just a motive for passing the impugned order of termination.
22. What is motive; what is foundation; what is the difference between the two; these are questions which are said to be still as baffling as they were when Krishna Iyer, J. in Samsher Singh Vs. State of Punjab, (1974) 2 SCC 831 = 1975 (1) SCR 814 = AIR 1974 SC 2192, observed as under:-
Again, could it be that if you summarily pack off a probationer, the order is judicially unscrutable and immune? If you conscientiously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils of law, however, harmlessly the order may be phrased. And so, this sphinx-complex has had to give way in later cases. In some cases the rule of guidance has been stated to be the substance of the matter and the foundation of the order. When does motive trespass into foundation? When do we lift the veil of form to touch the substance? When the Court says so. These Freudian frontiers obviously fail in the work-a -day world.
(See, Chandraprakash Sahi v. State of U.P.)
23. In the case of Anopsinh Jathuba (Supra), the Division Bench of this Court observed as under:-
2. The learned Single Judge of our High Court, after considering the facts of the case and observing that the order of termination is not based upon the unfair practice adopted by the appellants herein, but termination Page 5 of 20 HC-NIC Page 5 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT simpliciter since they were probationers, dismissed the Special Civil Applications.
According to the learned Judge, the unfair practices alleged against the appellants are not the foundation for the termination order, but that was the motive behind such an order passed. The learned Single Judge in deciding this aspect of the case relied upon the decision in Gout. Branch Press v. D. B. Bellappa reported in ATR 1979 SC 429 and the decision in State of U.P. v. Bhoop Singh reported in AIR 1979, SC 684. In AIR 1979 SC 429, the Supreme Court observed:
"If the services of a temporary Government servants are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for a" like reason which marks him off a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Article 16. Conversely, if the services of temporary Government servants are terminated arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment."
The Supreme Court in that decision finally held as follows :
"The termination of service was made arbitrarily and not on ground of unsuitability or other reason. It was further observed that it was perhaps open to the Government to say in view of the complaint alluded to in the show-cause notice against the integrity and fidelity of the employee, that the former had lost confidence in the latter and considered Page 6 of 20 HC-NIC Page 6 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT him unsuitable to be continued in the post which was one of trust and confidence. But when the Government instead of taking any such plea has, with obdurate persistency, stuck to the position that the employee's service has been terminated without any reason, it amounted to nearly admitting that the power reserved to the employer under the conditions of the employment, has been exercised arbitrarily."
In yet another decision reported in State of U.P. v. Bhoop Singh (AIR 1979 SC 684) which was referred to by the learned Single Judge the Supreme Court observed :
"It is apparent from the facts of this case that if the impugned order be considered as made in the light of the allegations against the respondent concerning the woman, the conduct of the respondent constituted a motive merely for making the order and was not the foundation of that order."
Thus in this decision, the Supreme Court differentiated between motive and the foundation for taking action in terminating the service of a probationer. The learned Single Judge found that the authorities concerned did not base their conclusion on the unfair practice adopted by the appellants in their examination. With that view, he dismissed both the Special Civil Applications filed by the appellants. We have carefully gone through the affidavit in . support of the main petition, the reply affidavit and the order of termination passed by the authorities concerned and other records. The order of termination of the appellant in L.P.A. No. 233 of 1985 reads as follows :
"You Mr. Anopsingh Jatuba as temporary unarmed recruit constable at present at Police Head Quarter's Service is not required by the department and as your appointment is solely on temporary basis, you are relieved Page 7 of 20 HC-NIC Page 7 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT from the service after office hours of today by paying one week notice pay as per Rule 33 of the B.G.S.R. Part 1."
The order of termination of the appellant in L.P.A. No. 234 of 1985 reads as follows :
"You Mr. Jymansingh Raiyabji as temporary unarmed recruit constable at present at Police Head Quarter's Service is not required by the department and as your appointment is solely on temporary basis, you are relieved from the service after office hours of today by paying one week notice pay as per; Rule 33 of the B.C.S.R., Part 1."
There is nothing in the termination order that such termination was made on the ground of unsuitability, unsatisfactory conduct or the like. If it is the question of misconduct, the authorities concerned ought to have followed the procedure set up under Article 311 (2) or otherwise, they will be condemning a person without being heard. If it is for the purpose of simply terminating the services of a probationer, the order should have stated that he is not suitable to be continued in service. In the absence of any of these adjectives for terminating the services of the appellants herein, we have to look into the affidavit-in-reply filed by the respondents herein. It is stated by the respondents in the affidavit filed by one Gupta, District Superintendent of Police, Jamnagar that the termination of services of the appellants has nothing to do with the act of copying at the examination in 'C' Division held at P.T.S., Baroda on 20-2-1984. The affidavit further states that, however, on going through the papers of enquiry received from the Principal, P.T.S., Baroda it is noticed that the appellants were outarred for the examination for the act of copying. It is in the affidavit filed on behalf of the respondents that the conduct of the appellants which is a gross misconduct cannot be tolerated in a disciplined force like Page 8 of 20 HC-NIC Page 8 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT Police. It further states that all the candidates were instructed and warned to refrain from malpractices in the examination or also the defaulting one would be sent back to their districts. In spite of that if a candidate indulges in copying, he has to blame himself for the consequences. The affidavit finally states that the services of the appellants were merely terminated so that they may not be debarred from service in any other Government Department. Reading these averments in this affidavit-in-reply, it is clear that the authorities concerned had the foundation for the termination only from the malpractice of copying made by the appellants herein. It is just to give them some opportunity to enter into some other service, these allegations were not mentioned in the termination order. This is clear from the last averment made by the respondents in the affidavit filed on their behalf by Mr. Gupta, the Deputy Superintendent of Police. In the decision in Anoop Jaiswal v. Government of India reported in AIR 1984, SC 636, the Supreme Court has observed as follows :
"The form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article. 311 (2). Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred Page 9 of 20 HC-NIC Page 9 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT by law upon the employee."
The Supreme Court has further observed :
"If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for the incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground if the servant has not been afforded a reasonable opportunity to defend himself as provided in Article 311 (2) of the Constitution."
In the decision in Nepal Singh v. State of U.P. reported in AIR 1985, SC 84, the Supreme Court had occasion to consider the termination order of the authority concerned in respect of a Sub-Inspector who was working in a temporary capacity. This temporary Sub-Inspector came in for criticism for contracting a second marriage without following Government Servants' Conduct Rules. The Superintendent of Police in this case had described this Sub-Inspector as a corrupt Officer who was not straight forward. While so, the Deputy Inspector General of Police, Bareilly Range, purporting to act under the Rules, passed an innocuous order simply stating that services of this Sub- Inspector were not required any more and as such his services were terminated with a month's pay in lieu of notice. This was questioned by way of a writ petition by the concerned Sub-Inspector before the High Court and a single Judge of the High Court dismissed the writ petition. On appeal, the Division Bench concurred with the single Judge and dismissed the appeal. On appeal to the Supreme Court, the Supreme Court observed :
"It is well settled that in dealing with a Government servant the State must conform Page 10 of 20 HC-NIC Page 10 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT to the constitutional requirements of Articles 14 and 16 of the Constitution. An arbitrary exercise of power by the State violates those constitutional guarantees, for a fundamental implication in the guarantee of equality and of protection against discrimination is that fair and just treatment will be accorded to all, whether individually or jointly as a class. When a Government servant satisfies the Court prima facie that an order terminating his services violates Articles 14 and 16, the competent authority must discharge the burden of showing that the power to terminate the services was exercised honestly and in good faith, on valid considerations, fairly and without discrimination."
In that case instead of taking proceedings for the misconduct, the Deputy Inspector General of Police, by an innocuous order, simply terminated the services of the Sub- Inspector, after dropping the enquiry against him. In that connection, the Supreme Court observed:
"We may observe that where allegations of misconduct are levelled against a Government servant, and it is a case where the provisions of Article 311 (2) of the Constitution should be applied, it is not open to the competent authority to take the view that holding the enquiry contemplated by that clause would be a bother or a nuisance and that therefore it is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order. The Court will view with great disfavour any attempt to circumvent the constitutional provision of Article 311 (2) in a case where that provision comes into play."
With the above said observation, the Supreme Court set aside the judgment of the High Court and allowed the appeal by quashing the impugned order of termination.
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Applying the principles laid down in the abovesaid Supreme Court decisions, it is clear that the respondents terminated the services of the appellants not because their work is not satisfactory, but because of the fact they have indulged in unfair practice of copying. This is very clear from the affidavit- in-reply filed by one Gupta on behalf of the respondents. Further, the authority concerned, while terminating the services, had the report of the Principal, P.T.S., Baroda which states that the appellants were not permitted to write the examination for their act of copying. When especially these facts have been taken into consideration and when, as a matter of fact, the affidavit-in- reply clearly states that the appellants' services were merely terminated so that they may hot be debarred from service in any other Government Department, it amply establishes the foundation for the termination is the malpractice adopted by the appellants herein. If that be so, the orders . of termination, without affording any opportunity to the appellants must fair. The simple order of termination as if the petitioners are only probationers is merely a camouflage for an order of dismissal for misconduct and as such the same cannot be upheld in as much as the appellants never had an opportunity to meet such allegations levelled against them. Article 311 (2) has been clearly violated in this case.
3. The learned singe Judge committed a mistake in observing that the appellants cannot succeed by creating a dilemma, i.e. if the respondents alleged any charges against the appellants, the same will be hit by Article 311 (2) and if no charges are levelled against the appellants, the termination will be hit by discrimination offending Article 14 of the Constitution. We are not concerned with regard to the difficult situation the respondents have been put in terminating the services, pf the appellants. We are more Page 12 of 20 HC-NIC Page 12 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT concerned as to whether the foundation for the termination is the malpractice indulged in by the appellants in copying at the examination hall. As we have seen from the facts of the case and the allegation in the affidavit-in-reply, the respondents terminated the services of the appellants only for the malpractices and they did not mention the same in order to give an opportunity to the appellants to seek some other Government employment without any stigma attached to them.
4. The other point as regards violation of Article 14 will not arise in as much as we have found that the order of termination has to fail since the procedure laid down under Article 311 (2) has not been followed on the facts and circumstances of the present case.
24. In the case of Anoop Jaiswal (Supra), the Supreme Court observed in paragraph Nos. 11 and 12 as under:-
11. On behalf of the Union of India reliance has been placed on State of Punjab v. Sukh Rai Bahadur (1968) 3 SCR 234 : (AIR 1968 SC 1089). Union of India v. R. S. Dhaba (1969) 3 SCC 603, State of Bihar v. Shiva Bhikshuk Misra (1971) 2 SCR 191 : (AIR 1971 SC 1011), R. S. Sial v. State of U. P. (1974) 3 SCR 754: (AIR 1974 SC 1317), State of U. P. v. Ram Chandra Trivedi (1977) 1 SCR 462: (AIR 1976 SC 2547) and I. N. Saksena v. State of Madhya Pradesh (1967) 2 SCR 496 : (AIR 1967 SC 1264). We have gone through these decisions. Except the case of Ram Chandra Trivedi (supra) all other cases referred to above were decided prior to the decision in Samsher Singh's case (AIR 1974 SC 2192) (supra) which is a judgment delivered by a Bench of seven Judges. As pointed out by us in all these cases including the caw of Ram Chandra Trivedi (supra) the principle applied is the one enunciated by Parshotam Lal Dhingra's case (AIR 1958 SC 36) (supra) which we have referred to earlier. It is urged relying Page 13 of 20 HC-NIC Page 13 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT upon the observation in Shri Sukh Rai Bahadur's case (supra) that it is only when there is a full scale departmental enquiry envisaged by Article 311 (2) of the Constitution i.e. an enquiry officer is appointed, a charge-sheet submitted.
explanation called for and considered, any termination made thereafter will attract the operation of Art. 311 (2). It is significant that in the very same decision it, is stated that the circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.As observed by Ray, C. J. in Samsher Singh's case (supra) the form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Art. 311 (2)
12.It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.
25. In the case of Dinaben (Supra), a learned Single Judge of this Court observed in paragraph Nos. 13, 14, 15, 16 and 17 as under:-
13. The main anxiety of the Court should be to find out as to what was the basis and foundation of the termination order. Was it a camouflage or whether the respondent-Page 14 of 20
HC-NIC Page 14 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT employer resorted to a short-circuit by passing an order of termination simplicitor though there were serious allegations of misconduct against the petitioner? Simply because the person is working temporarily, his services cannot be terminated unceremoniously by resorting to short- circuit of passing the simple termination order though the management is permitted and aided the alleged misconduct or misbehaviour or malpractices on the part of the employees concerned. At times, the employees may be tempted to take such a short route so that without undergoing the exercise of holding enquiry and by-passing the provisions of Art. 311(2), the employee could be sent back home. Such a tactics, strategy or manipulation can never be allowed, and can never be encouraged, when the matter is tested on judicial scrutiny.
14. In fact, the relationship of master and servant commands and demands higher degree of faith, trust and obligation. Even in case of a probationer, or even in case of any ad-hoc appointee for a stipulated period, termination under the guise of simple termination order though on account of misconduct and misdemeanour without holding inquiry under Art. 311(2) of the Constitution is illegal and impermissible. Any person who is likely to be visited with civil or evil consequences must be heard. If the Court finds that a Government employee is unceremoniously terminated on account of misconduct or misdemeanour under the guise of termination simplicitor, then in that case, it becomes obligatory for the Court to quash the order of termination of service. In fact, the Highest Court of the land has observed in case of Dr. Miss Sumati P. Cere v. Union of India, reported in AIR 1989 SC 1431 that before the termination of an ad-hoc employee, communication in advance about the Page 15 of 20 HC-NIC Page 15 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT defect, deficiency, indifference or indiscretion should be given. It would be interesting to reproduce the relevant portion of the judgment.
We must emphasize that in the relationship of master and servant, there is a moral obligation to act fairly. An informal, if not formal, give-and-take, on the assessmentof work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies, indifference or indiscretion may be with the employee by in-advertance and not by in capacity to work. Timely communication of the assessment of work in such cases may put them on the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability.
15. In the present case, the petitioner was not communicated any such defect or deficiency or any action amounting to unsuitability. The petitioner worked with the respondent-Corporation right from 8-3-1989 till 30-11-1989 (for a period of more than seven months). No any such communication was ever given about the lapses alleged to have been made or deficiencies levelled against her in the affidavit-in-reply. Of course, in affidavit-in-reply, it was stated that some memos were given to the petitioner. However, when specifically this question was put to the learned Advocate for the respondent-Corporation, he fairly stated that the relevant files does not contain such memos or copies thereof. In fact, it is found from the facts of this case that no such memos or intimation were ever given to the petitioner. Therefore, the contention that the termination of service is vitiated is full of substance.
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16. Learned Advocate for the respondent- Corporation vehemently contended that the petitioner is not entitled to the equitable relief as she has refused to work and she is unsuitable for the work in question for the said post. This contention cannot be entertained or accepted in the facts of this present case. One cannot remain indifferent to the case law as aforesaid. The moment the Court finds that the order of termination simplicitor in reality was punitive and stigmatic, the order is required to be quashed and set aside as it would be in violation of the provisions of Art. 311(2) of the Constitution.
17. Next the question will arise as to what appropriate relief the petitioner is found entitled to. Since this Court finds that the impugned order of termination is illegal, the petitioner would be entitled to be reinstated with full back wages. The termination of the petitioners services is found to be illegal and, therefore, the termination order is required to be quashed.
26. In the present case it is not in dispute that the date on which the impugned order of termination was passed the criminal prosecution had already been instituted in the form of a First Information Report and the investigation in that regard had been undertaken by the Police. As it came to the notice of the department, the decision was taken to discontinue the petitioner in service. The only thing which has been stated in the impugned order is about the registration of the FIR and relying on the same it has been stated that the services of the petitioner were no longer required and his ad-hoc service was being put to an end.
27. It is equally true that no inquiry was initiated by the department in that regard. As to in what circumstances an order of termination of a probationary can be said to be punitive or not is dependent upon whether certain allegations which are the cause of the termination are the motive or foundation. If findings were arrived at an Page 17 of 20 HC-NIC Page 17 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT inquiry as to the misconduct, behind the back of the employee or without a regular departmental inquiry, the simple order of termination is to be treated as founded on the allegations and will be bad. But if the inquiry was not held, no findings were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom a First Information Report was registered, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because the Police was already ceased of the matter. In such circumstances, the termination would be a motive and not the foundation and the simple order of termination would be valid.
28. It is true that in the trial before the Criminal Court the petitioner was acquitted but with the aid of benefit of doubt. Ofcourse the same was a subsequent development and as such has no bearing so far as the order of termination is concerned. Even otherwise, there is no rule or regulation that once an employee has been acquitted by the Criminal Court, as a matter of right, he should be reinstated in service. Even otherwise, there is no rule for automatic reinstatement on acquittal by a Criminal Court. Even if an employee is honourably acquitted by the Criminal Court no right is conferred on the employee to claim any benefit including reinstatement.
29. In a case like one in hand, even if it is believed that the termination was not strictly in accordance with law still the Court may decline to grant any discretionary relief under Article 226 of the Constitution of India. The petitioner being an ad-hoc employee on probation was terminated way back in the year 2008. Almost seven years have passed. In such circumstances, I am not inclined to grant any equitable relief to the petitioner."
13. The learned AGP further brings it to my notice that the aforesaid judgment and order passed by this Court was carried in appeal by filing the Letters Patent Appeal No.1447 of 2015. The Division Bench of this Court, vide the judgment and order Page 18 of 20 HC-NIC Page 18 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT dated 26th April, 2016, dismissed the letters patent appeal holding as under;
"3. The appellant- petitioner was working as Medical Officer, Class-II and was deputed to District Panchayat, Panchmahals at Godhra. He was discharging services on ad hoc basis. Pursuant to F.I.R. bearing ACB Crime Register No.6 of 2007 filed with the ACB Police Station, Godhra, Panchmahal District, his services were terminated. The appellant/ petitioner has questioned the order of termination. The learned Single Judge has dismissed the writ petition by order dated 08.10.2015.
4. When the matter came up earlier for admission, this Court has passed order dated 05.01.2016, which reads as follows:
Notice returnable on 28.01.2016 on the limited point of deletion of the second paragraph of order dated 18.09.2007 since it was not required and in any case the appellant has been acquitted from the criminal case. D.S.
5. Heard learned counsel for the appellant and the learned Assistant Government Pleader for the respondent-State. In this case, it is not in dispute that the appellant was on ad hoc employment. His services came to be terminated only on account of registration of F.I.R.
bearing No.6 of 2007 filed with the ACB Police Station, Godhra, Panchmahal District. It is also clear from the record that pursuant Final Report in the aforesaid crime he was tried and acquitted after fulfledged trial by the learned 6th Special Judge (ACB) and Additional Sessions Judge, Godhra in Special (ACB) Case No.3/2007 vide order dated 19th February, 2014.
6. Though it is pleaded that in view of such acquittal he is entitled for reinstatement in services by setting aside the order of termination, having heard the learned counsel for the appellant and the learned Assistant Government Pleader for the respondent-State and having perused the order passed by the learned Single Judge, it is not in dispute that the appellant/ petitioner was serving on ad Page 19 of 20 HC-NIC Page 19 of 20 Created On Fri Oct 07 00:37:36 IST 2016 C/SCA/1786/2004 JUDGMENT hoc basis, on probation at that stage, his services came to be terminated in the year 2008. It is true that he was acquitted in Special (ACB) Case No.3 of 2007, but as he was on ad hoc employment, on probation, when his services were terminated in the year 2008, he is not entitled to claim reinstatement in services at this point of time. At the same time as it is stated that the allegations made in the order of termination constitute stigma, while confirming order of the learned Single Judge, we deem it appropriate in clarifying that it is to be treated as termination simpliciter and the same cannot be taken as adversary proceeding for any other purpose. Subject to the above the Letters Patent Appeal stands disposed of. Notice is discharged. No order as to cost. "
14. In view of the above, no case is made out for interference. This writ application, accordingly, fails and is hereby rejected. While rejecting this writ application, it is clarified that the reasons assigned in the order of the termination shall be ignored and it is to be treated as the termination simpliciter and the same cannot be taken as an adversary proceeding for any other purpose. Rule is discharged.
(J.B.PARDIWALA, J.) Vahid Page 20 of 20 HC-NIC Page 20 of 20 Created On Fri Oct 07 00:37:36 IST 2016