Gujarat High Court
Dharmendrakumar Mohanbhai Jani vs State Of Gujarat on 7 March, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/13766/2016 ORDER DATED: 07/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13766 of 2016
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DHARMENDRAKUMAR MOHANBHAI JANI
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR HARDIK MEHTA, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 4,5
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 07/03/2022
ORAL ORDER
1. RULE. Learned advocates appearing for the respective respondents waive service of notice of rule.
2. In the present writ petition, the petitioner has inter alia prayed for the following prayers.
"7. (A) Quash and set asdie the termination order dated 21.06.2016, Annexure-A to this petition, and further be pleased to direct the respondent authorities to reinstate the petitioner in service with all consequential benefits, and (B) Pending adminssion and final disposal of this petition, the Honourable Court may be pleased to stay the operation, implementation and further execution of the impugned order dated 21.06.2016, Annexure-A to this petition, and (C) Award the cost of the present petition."
3. The facts, in short, are as under:-
3.1. The petitioner has joined the service of the respondent authorities on the post of Multi-purpose Health Worker (Male) in the year 2008. Initially, the petitioner was appointed on the post of Multi-purpose Health Worker on 03.11.2008 on contractual basis. The contract of the petitioner came to be extended from time to time until the petitioner was appointed on the said post by order dated 21.09.2012 pursuant to the Page 1 of 6 Downloaded on : Wed Mar 09 21:20:59 IST 2022 C/SCA/13766/2016 ORDER DATED: 07/03/2022 regular process of selection undertaken by the respondent authorities.
3.2 While the petitioner was discharging his duties as Multi- purpose Health Worker, an FIR came to be registered on 09.10.2015 for the commission of alleged offences punihsable under Sections 306, 504, 506(2) and 114 of the Indian Penal Code, 1860 against two accused named therein namely (1) Dilipbhai Vajeram Jani and (2) P.D. Dhandhaliya.
4. Learned advocate Mr.Vyas, appearing for the petitioner, while placing reliance on the order dated 24.11.2021 passed in Special Civil Application Nos.15053 & 15054 of 2019, has submitted that the impugned order is required to be quashed and set aside as the same is stigmatic order and has been passed without holding any departmental inquiry. He has further submitted that the only ground for terminating the service of the petitioner is registration of the FIR. He has further submitted that the petitioner is not named in the FIR nor any role, whatsoever is attributed to him in the commission of the offence and he has been falsely implicated and thus, the impugned order is required to be quashed and set aside. It is submitted that merely, the show cause notice was issued before passing the termination order and the explaination of the petitioner was called for, the same cannot absolve the respondent authorities from holding the regular departmental inquiry, as per the Gujarat Panchayat Service (Discipline and Appeal) Rules. It is further submitted that the petitioner has been released on bail and he may be ordered to reinstated in service. In support of his submissions, learned advocate Mr.Vyas, has placed reliance on the order dated 17.02.2021 Page 2 of 6 Downloaded on : Wed Mar 09 21:20:59 IST 2022 C/SCA/13766/2016 ORDER DATED: 07/03/2022 passed in Letters Patent Appeal No.270 of 2021 and the order dated 16.09.2021 passed in Special Civil Application No.18732 of 2019. It is submitted that the Division Bench of this Court, after considering the similar issue and similar order has been set aside. It is submitted that the Division Bench has also recorded the fact that against one of the decisions of the Division Bench passed in Letters Patent Appeal No.1596 of 2019 in identical case, the State has preferred Special Leave Petition No.13220 of 2020 before the Apex Court which is rejected.
5. In response to the aforesaid submissions, learned advocate Mr.Munshaw, appearing for the respondent Nos.4 and 5 has submitted that since the petitioner was involved in serious irregularity and have embroiled in the criminal offence under the Prevention of Corruption Act, the authority thought it fit to terminate his service.
6. I have heard the learned advocates appearing for the respective parties.
7. It is not in dispute that by termination order dated 21.06.2016, the petitioner having been terminated from the service. The petitioner was appointed on contractual basis, as mentioned hereinabove. A perusal of the impugned order reveals that the service of the petitioner has been terminated for financial irregularity and due to registration of the FIR in this regard.
8. Thus, the termination order is premised on irregularity and unquestionably can be termed as stigmatic. In similar Page 3 of 6 Downloaded on : Wed Mar 09 21:20:59 IST 2022 C/SCA/13766/2016 ORDER DATED: 07/03/2022 stigmatic termination of contractual employees, the Division Bench of this Court in catena of decision has set aside the orders, for the reason that the same could not have been passed without hold a departmental inquiry.
9. In the order dated 17.02.2021 passed in Letters Patent Appeal No.270 of 2021, the Division Bench, after survey of various decisions of this Court, has rejected the appeal filed by the State Authorities challenging the order of the Coordinate Benches, whereby the similar orders of terminating the contractual employees were challenged. The Division Bench has placed reliance on another judgment passed by the Division Bench in the case of State of Gujarat vs. Chetan Jayantilal Rajgor dated 24.07.2020 passed in Letters Patent Appeal No.1596 of 2019 in Special Civil Application No.4439 of 2017. The Division Bench of this Court vide order dated 17.02.2021 in the case of the District Development Officer vs. Dipeshkumar Somabhai Vasava passed in Letters Patent Appeal No.270 of 2021 in Special Civil Application No.9447 of 2019 has observed thus:-
"9 In the case of Rahul Aydanbhai Vak vs. State of Gujarat passed in Letters Patent Appeal No.841 of 2019 on 15.04.2019, this Court has held that whenever charges are levelled when the action is found to be stigmatic, full-scale departmental inquiry deserves to be undertaken against a contractual employee on fixed salary.
9.1 Relevant paragraphs are reproduced as under:
"8. 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 Page 4 of 6 Downloaded on : Wed Mar 09 21:20:59 IST 2022 C/SCA/13766/2016 ORDER DATED: 07/03/2022 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.
9. Yet in another decision again by the Division Bench of this Court rendered in Letters Patent Appeal No.841 of 2019 between Rahul Aydanbhai Vak v. State of Gujarat, decided on 15.4.2019, in which the same issue has been considered. The relevant discussion of the Division Bench in the said case is contained in Para.7, 8 and 9, in which in no uncertain terms, almost in similar set of circumstance, the Division Bench has clearly opined that full-scale departmental inquiry will have to be undertaken, if initiation of action on the basis of unsatisfactory work, gross negligence or indiscipline or any act which may tantamount to be stigmatic and as such, consistently this view has been clearly opined by the Division Bench.
10. Yet in further decision which is brought to our notice rendered in Special Civil Application No.10928 of 2014, decided on 29.9.2014, in which also the Division Bench has examined even the status of contractual employment. But since we are not called upon nor concerned with the said issue to be dealt with in the present case, we refrain ourselves from commenting anything and leaving the said issue as it is.
11. From the overall material on record and in consideration of aforesaid observations, we see no distinguishable material to take a different view or deviate from the same. Since almost in similar issue, the proposition is to the effect that whenever any charge is levelled and action is found to be stigmatic, a full-scale departmental inquiry deserves to be undertaken irrespective of whether the delinquent was a regular employee or contractual employee on a fixed salary. As a result of this, we are of the considered opinion that since undisputedly by a brief procedure, an action is initiated against the respondents herein while dismissing their services, said action itself is found to be not on the touchstone of aforesaid proposition of law. As a result of this, no error is committed by the learned Single Judge. Having perused these material, we are not satisfied with the submissions made by learned counsel for the appellants in both these appeals.
15. Additionally, we are also of the opinion that these Letters Patent Appeals have arisen out of the learned Single Judge's decision. The scope of Letters Patent Appeal is well defined by the Apex Court in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company, reported in 2016 LawSuit (SC) 94. Relevant Para.5 of the said decision is reproduced hereinafter : "Once the learned Single Judge having seen the records and come to the conclusion that the industry was not functioning after January, 1995, there is no justification in entering a different finding without any further material before the Division Bench. The appellate bench ought to have noticed that the statement of MW-3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-
court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Page 5 of 6 Downloaded on : Wed Mar 09 21:20:59 IST 2022 C/SCA/13766/2016 ORDER DATED: 07/03/2022 Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief." Hence, we see no other distinguishing circumstance pointed out by the learned counsel for the appellants and as such, we are in complete agreement with the view taken by the learned Single Judge."
10 In the instant case, without disturbing the right of the employer, in any manner, as has been also directed by the learned Single Judge, which has not precluded, the employer to proceed against the respondent in accordance with law, as the sole issue, which has been raised before this Court is already decided by this Court, we see no reason to entertain this petition.
11. We are conscious of the pendency of this matter, before the Apex Court with a Special Leave to Appeal (C) No.013220 of 2020, where the judgement of Letters Patent Appeal No. 1596 of 2019 is challenged by the State. No details of date beyond 15.02.2021 is available."
10. Under the circumstances and in light of the aforesaid settled proposition of law, the impugned order dated 21.06.2016 passed by the respondent authority is hereby set aside. The respondents are directed to reinstate the petitioner on his original post. It is clarified that the reinstatement is only for the purpose of holding the departmental inquiry. The grant of consequential benefits will depend on the ultimate outcome of the departmental proceedings. The departmental proceedings shall be completed within a period of 03(three) months.
11. The present writ petition is allowed. Rule is made absolute to the aforesaid extent.
Direct service is permitted (A. S. SUPEHIA, J) MAHESH BHATI/80 Page 6 of 6 Downloaded on : Wed Mar 09 21:20:59 IST 2022