Gujarat High Court
Sunitaben Mafatlal Vaghela vs State Of Gujarat - Through Secretary on 8 May, 2019
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/9142/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9142 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
NO
order made thereunder ?
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SUNITABEN MAFATLAL VAGHELA
Versus
STATE OF GUJARAT - THROUGH SECRETARY & 2 other(s)
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Appearance:
MS VIDHI J BHATT(6155) for the Petitioner(s) No. 1
MR VISHRUT JANI, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 08/05/2019
CAV JUDGMENT
1. The present writ petition has been filed seeking a direction to the respondents to quash and set aside the impugned order dated 02.11.2010 and also seeking a direction to the respondents to re-instate the petitioner Page 1 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT at his original post as Chief Assistant.
2. The brief facts of the case leading to filing of the present writ petition are as under:
2.1. The petitioner was initially appointed to the post of Anganwadi Worker in the year 1995 under the Central Government I.C.D.S Scheme upon certain terms and conditions. It is the case of the petitioner that after completion of 12 years' service period, the promotion of the petitioner was due to the post of Chief Assistant (Mukhya Sevika), and, therefore, by maintaining a seniority list amongst the other Anganwadi Worker, the petitioner was promoted to the post of Mukhya Sevika, vide order dated 28.09.2007 on ad hoc basis for the term of five years. Thereafter, on 10.06.2010, she was served with a show cause notice issued by the respondent No.3-District Panchayat, Kheda, inter alia, calling explanation for various misconducts committed by her.
2.2. It is also the case of the petitioner that after receiving the notice, she has submitted a reply to the respondent No.3 by giving various reason. The petitioner further sought permission for the appointment of a Legal Assistant for defending her case accordingly, but the said request was turned own by the respondent No.3 vide letter dated 16.07.2010 on the ground that the service of the petitioner is not covered under the Page 2 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT Gujarat Panchayat (Discipline & Conduct) Rules, 1997. Thereafter, accordingly a reply was filed by the petitioner without taking help of Legal Assistant from respondent No.3 and further a letter was received by the petitioner by denying the request of the petitioner for the Legal Assistant.
2.3. It is the case of the petitioner that the allegation leveled against the petitioner was published in a local newspaper prior to issuing the notice to the petitioner, and thereafter reading the same various Anganwadi Workers serving under the petitioner's area had made a representation to the respondent No.3 by denying all the allegations made against the petitioner. On 09.08.2010, the petitioner remained present before the respondent No.3 and after necessary inquiry, the petitioner was terminated from service by order dated 02.10.2010. Pursuant to the order passed by the respondent No.3, the petitioner preferred an appeal before the respondent No.2 on 16.12.2010. After considering the reply, rejoinder and detail evidences laid down by both parties, the said appeal was disposed of returning the entire file to the petitioner on the ground of jurisdiction by the respondent No.2.
3. Learned advocate Ms.Vidhi Bhatt appearing for the petitioner submitted that while passing the termination order, no departmental inquiry has been held by the respondent no.3. She has submitted that the Page 3 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT termination of the petitioner was based on the misconducts, hence a regular departmental inquiry was necessitated. She submitted that the petitioner is an employee of the respondent No.1 and her service is squarely covered under the rules of the Gujarat Panchayat (Discipline & Conduct) Rules, 1997 and, therefore, conditions mentioned in the appointment order are similar with those employees appointed regularly under the respondent No.1, except salary and hence, for such termination, it is necessary to hold a departmental inquiry against the petitioner, which is admittedly not initiated by the respondents and only on this ground the order passed below is required to be quashed. She further submitted that as per the judgments of the Division Bench dated 20.02.2018 passed in Letters Patent Appeal no.189 of 2018, and in the judgment dated 15.04.2019, passed in Letters Patent Appeal No.841 of 2019, on an similar issue, wherein the Division Bench, while examining the cases of the termination of contractual and temporary employees has set aside the termination which was passed without holding a full-fledged departmental inquiry as per the discipline and appeal rules. Thus, it is submitted that the impugned order of termination is required to be quashed and set aside with all consequential benefits. She submitted that the respondents have also placed reliance on the preliminary report which is also not supplied to the petitioner; hence the impugned order is required to be set aside. Reliance is also placed on the judgments of the Page 4 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT Constitution Bench of the Apex Court in the case of Champaklal Chimanlal Shah V/s. Union of India, reported in AIR 1964 SC 1854 and Moti Ram Deka V/s. General Manager, North East Frontier Railway, reported in AIR 1964 SC 60.
3.1 Learned advocate Ms.Bhatt for the petitioner further submitted that the petitioner was duly appointed through proper channel and after having her more qualification and experience in the post of Anganwadi Worker and after completion of 12 years service, the respondent has appointed/promoted the petitioner to the post of Mukhya Sevika, on ad hoc basis under certain terms and condition for five years time period on 28.09.2007, which is yet not completed. She further stated that at this stage in Condition no.3, it is specifically mentioned that petitioners' service cannot be put to an end without giving her one month's written notice and since the same is not complied with, only on this ground the order passed by the respondents is required to be quashed and set aside. 3.2 Learned advocate Ms. Bhatt for the petitioner submitted that the petitioner was duly appointed through proper channel to the post of Anganwadi Worker and after completion of 12 years of service, the respondent has appointed/promoted the petitioner to the post of Chief Assistant. She submitted that if the respondent no.3 was not satisfied with her service in that case she was required to be reverted on her service to Page 5 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT the post of Anganwadi Worker, but without resorting that remedy, the respondents had terminated the service of the petitioner and therefore, the impugned order is a non-application of mind and the same is required to be rejected.
4. A fortiorari, learned advocate Mr.H.S.Munshaw appearing for the respondent No.3-District Panchayat, Kheda submitted that the petitioner was provided work as Honorary Anganwadi Worker with effect from 29.04.1995 at Asamali Anganwadi Center, Village Asamali, Taluka Mater, District Kheda. It was submitted that later on the petitioner was appointed as a Mukhya Sevika by order dated 28.09.2007 on several terms and conditions and on the basis of which, her appointment was purely on temporary and ad hoc basis on fixed monthly remuneration of Rs.3,500/- It was also submitted that in the appointment order, condition no.2 stipulates that in case of any serious misconduct or financial irregularities during his/her first five years' service, she is liable to be terminated. He further submitted that by the order dated 28.09.2007, the petitioner was posted at village Daloli as Mukhya Sevika and number of complaints from Honorary Anganwadi Workers and helpers were received by the Programme Officer as well as the District Development Officer, District Panchayat, Kheda.
4.1. Learned advocate Mr.Munshaw for the respondent No.3 further Page 6 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT submitted that in view of the complaints received against the petitioner, the Programme Officer, ICDS Branch, Kheda has examined the matter and the Honorary Anganwadi Workers gave their written statements stating that the petitioner has accepting committed irregularities and is accepting monetary benefits from them and thereupon the then Programme Officer had put up a detailed note on the file and submitted the same to the District Development Officer, Kheda District Panchayat for appropriate action and on the basis of which, the respondent No.3 issued a show cause notice dated 10/11.06.2010 to the petitioner. It was further submitted that the petitioner submitted her reply to the show cause notice during the personal hearing.
4.2 Learned advocate Mr.Munshaw for the respondent No.3 submitted that as the complaints against the petitioner received from various Anganwadi Workers and helpers were of very serious in nature and as the reply to the notice received from the petitioner was not found satisfactory, it was thought fit to bring an end of her service and to terminate the ad hoc appointment of the petitioner and relieved her through a reasoned and speaking order dated 02.10.2010 after considering various aspects. It was submitted that from the record as well as the speaking order dated 02.10.2010, it would be clear to this Court that the petitioner, who was appointed on ad hoc basis on several terms and conditions, was involved Page 7 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT in serious irregularities and grave misconduct and, therefore, it was not in the interest of public at large and the administration to continue her service as Mukhya Sevika. He also submitted that the Anganwadi Centers are established in the rural and remote areas of the districts and operated for the welfare of the children below the age of six years and pregnant women and the centers are to be operated by Honorary Anganwadi Workers and helpers and supervised by Mukhya Sevikas. He further submitted that the entire scheme and project would be frustrated if such Anganwadi workers and Mukhya Sevikas fail to perform their duties with honesty and integrity.
4.3 Learned advocate Mr.Munshaw for the respondent No.3 further submitted that as the petitioner was appointed on ad hoc basis for a period of first five years and her services are not governed under the provisions of the Gujarat Panchayat (Discipline & Appeal) Rules, 1997 and as such her service conditions are governed as per the terms and conditions mentioned in the appointment order. It was submitted that initially the petitioner was appointed as Honorary Anganwadi worker and accordingly she was not a panchayat servant and was not appointed as an employee of panchayat service as envisaged under the provision of the Gujarat Panchayats Act, 1993. it was further submitted that the petitioner was not promoted to the post of Mukhya Sevika on the basis of seniority Page 8 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT as Honorary Anganwadi Worker and as such the appointment was in accordance with the policy of the State Government and, therefore, she cannot ask for reversion to the post of Anganwadi Worker as stated by her. It was submitted by learned advocate Mr.Munshaw that considering the serious misconducts, the petitioner's case cannot be considered for appointment as Honarary Anganwadi Worker.
4.4 Reliance was placed by learned advocate Mr.Munshaw on the judgments of the Supreme Court in the case of State of Uttar Pradesh & Anr. vs. Kaushal Kishore Shukla, 1991 (1) S.C.C. 691, State of U.P & Ors. vs Krishna Kumar Sharma,1997 (11) S.C.C. 437 and in the case of Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. vs Devendra Kumar Jain and Ors., 1995 (1) S.C.C. 638 for the proposition of law that the services of the probationer can be terminated without issuance of notice if the service is found unsatisfactory.
4.5 Mr.Munshaw further placed reliance on the Division Bench bench judgment dated 25.02.2004 rendered in Letters Patent Appeal No.599 of 2004, and submitted that the respondents have complied with the principles of natural justice by issuing a show cause notice and her explanation has also been considered in detail, hence no further detailed inquiry was required. It was submitted that the petitioner was afforded sufficient opportunity before terminating her service, hence the same does Page 9 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT not call for any interference.
4.6 Finally, it was submitted by learned Advocate Mr.Munshaw, that if in the eventuality, the order of termination of the petitioner is set aside; the respondent no.3 may be permitted to hold a departmental inquiry as envisaged under the discipline and appeal rules. It was further submitted that no back wages or consequential benefits to the petitioner may be granted.
5. I have considered the rival contention made by the learned advocates for the parties to the lis. I have also scaled the merits of the arguments considering the decisions cited at bar.
6. The petitioner was initially appointed to the post of Anganwadi Worker in the year 1995 under the Central Government I.C.D.S Scheme. Thereafter, she was appointed as Mukhya Sevika by way of nomination as per the Rules vide order dated 28.09.2007 on ad hoc basis for the term of five years. The petitioner was served with the show cause notice dated 10.06.2010 by respondent No.3 for various alleged misconducts. On 09.08.2010, the petitioner remained present before the respondent No.3 and after necessary inquiry, the petitioner was terminated from service by the order dated 02.10.2010. Pursuant to the order passed by the respondent No.3, the petitioner preferred an appeal before the respondent Page 10 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT No.2 on 16.12.2010, which was also rejected by the order dated 09.06.2011.
7. The kernel of the issue raised in the instant writ petition is whether the service of the petitioner, who was appointed on the fixed pay for a fixed term, can be terminated without holding a departmental inquiry on the ground of misconduct.
8. The Division Bench of this court, while considering the issue of termination of a fixed tenure/salaried employee on stigmatic ground by issuing a notice, has held that termination of such an employee, who is appointed even on fixed tenure and on fixed salary cannot be effected without holding a full-fledged departmental inquiry under the discipline and appeal rules, if the termination is premised on a misconduct. The Division Bench has held thus:
"Learned Single Judge has discussed the law on the subject viz. `motive' or foundation of termination of service of an employee. The above act on the 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 fullfledged 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."Page 11 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT
9. Similarly, in the judgment dated 15.04.2019, passed in Letters Patent Appeal No.841 of 2019, while examining the case of termination of the contractual employee who was also similarly employed on the same terms and conditions to that of the petitioner, this court has observed thus:
"In the above context, the learned Single Judge relied on the decision of this Court in the case of Manishbhai Nayanbhai Mod vs. Vadodara Municipal Corporation dated 30.11.2017 wherein this Court relied on the cases of Gujarat Steel Tubes Limited vs. Gujarat Steel Tubes Mazdoor Sabha [(1980) 2 SCC 593], Anoop Jaiswal vs. Government of India [(1984) 2 SCC 369, Radhey Shyam Gupta vs. U.P. State Agro Industries Corpn. Ltd [(1999) 2 SCC 21 and for ready reference we reproduce paragraph no. 5.2 of the order passed by the learned Single Judge as under:
"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 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 Page 12 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT 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 noninjurious 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 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 Page 13 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT 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 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 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." 8. Even decision relied by learned Assistant Government Pleader in the case of Chaitanya Prakash and Another (supra) quotes decision in the case of Pavanendra Narayan Verma (supra) 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. 9. When the appointment of the petitioner had genesis in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967, incorporation of certain terms and conditions contractual in nature pale into insignificance when the termination order is expressly stigmatic as rightly concluded by the learned Single Judge which required no lifting of veil and therefore the appeal is bereft of merit."
Thus, the contention raised on behalf of the respondent no.2, that no detail inquiry as contemplated under the discipline and appeal rules is required to be held since a show cause notice was issued to the petitioner, entails negation in light of the law enunciated in the foregoing judgments.
10. The appointment order dated 28.09.2007 reveals that the petitioner was appointed by exercising the powers under sub-section (5) of section Page 14 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT 227 and section 274 of the Gujarat Panchayats Act, 1993 after following the regular selection procedure. The appointment of the petitioner neither can be termed as purely incidental, nor can be compared with those employees who are engaged on contract for completion of a scheme/project or whose appointments are coterminous with the work or duties for which they are employed. After undergoing the regular selection process, the petitioner has acquired the status of "government servant" whose service is governed by the rules framed under Article 309 of the Constitution of India and not by the terms of the contract. Thus, even if the impugned order is silent with regard to the provision of the discipline and appeal rules, it has to be construed that the service of the petitioner is governed by the Gujarat Panchayat (Discipline and Appeal) Rules, 1997, which prescribes a detailed procedure for holding a departmental inquiry for imposing a major penalty on a panchayat employee. Reliance placed by the learned advocate Mr.Munshaw on the judgments of the Supreme Court in the cases of Krishna Kumar Sharma (supra) and Kaushal Kishore Shukla (supra) cannot come to the rescue of the respondent no.2, since in the cases before the Supreme Court, the termination was premised on the unsatisfactory work of the employee and not on the misconduct. In the case of Devendra Kumar Jain (supra), the employee was appointed without approval, and the appointment was not affected because of any misconduct. Reliance placed on the Division Page 15 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT Bench judgement dated 25.02.2004 is also misconceived and will not apply to the facts of the case, as the service of the employee was terminated due to registration of a criminal complaint.
11. Furthermore, regular departmental inquiry is also necessitated since the petitioner is entitled to the protection under Article 311(2) of the Constitution of India. The Constitution Bench of the Supreme Court in the case of Champaklal Chimanlal Shah (supra) has held that in cases of temporary employees and quasi-permanent employees, who are sought to be terminated on the ground of misconduct, they are entitled to the protection under Article 311(2) of the Constitution of India. The petitioner, having being appointed, after a regular selection was conferred with a right of being confirmed after a period of completion of five years. Condition no.19 of the appointment order states that after five years of completion of service, the petitioner shall be placed in the regular pay- scale, and she is not required to be further appointed on probation. Mentioning of such condition postulates that the period of probation which is meant for regular employees is purged in case of the petitioner as she is required to undergo satisfactory five years period as a fixed pay employee. Thus, the petitioner, who was appointed after a regular selection is entitled to protection under Article 311(2) of the Constitution of India, hence she could not have been terminated without holding a Page 16 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT departmental inquiry. The Supreme Court in the case of Champaklal Chimanlal Shah (supra) has prescribed the procedure under Article 311(2), the same is incorporated as under:
"11. Before however we consider the facts of this case, we should like to make certain general observations in connection with disciplinary proceedings taken against public servants. It is well known that government does not terminate the services of a public servant, be he even a temporary servant, without reason; nor is it usual for government to reduce a public servant in rank without reason even though he may be holding the higher rank only temporarily. One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end. In that case there is nothing further to be said and his services terminate when the post comes to an end. Similarly a government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end. But besides the above, the government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and/or his work. The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure. This dissatisfaction with the work and/or conduct of a temporary servant may arise on complaint against him. In such cases two courses are open to government. It may decide to dispense with the services of the servant or revert him to substantive post without any action being taken to punish him for his bad work and/or conduct. Or the government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary he will have the protection of Art. 311 (2). But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work. In this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him. An enquiry officer (who may be himself in the case where the appointing authority is other than the Government) is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and this enquiry is held in accordance with the principles of natural justice. This is what is known as a formal departmental enquiry into the conduct of a public servant. In this enquiry evidence both documentary and oral may be led against the public servant concerned and he has a right to cross-examine the witnesses tendered against him. He has also the right to give documentary and oral evidence in his defence, if he thinks necessary to do so. After the enquiry is over, the enquiry officer makes a report to the Government or the authority having power to take action against the servant concerned. The government or the authority makes up its mind on the enquiry report as to whether the charges have been proved or not and if it holds that some or all the charges have been proved, it determines tentatively the punishment to be inflicted on the public servant concerned. It then communicates a copy of the Page 17 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT enquiry officer's report and its own conclusion thereon and asks him to show cause why the tentative punishment decided upon be not inflicted upon him. This procedure is required by Art. 311 (2) of the Constitution in the case of the three major punishments, i.e., dismissal, or removal or reduction in rank. The servant concerned has then an opportunity of showing cause by making representation that the conclusions arrived at the departmental enquiry are incorrect and in any case he punishment proposed to be inflicted is too harsh."
Thus, the respondent no.2 was required to hold a full-fledged de- partmental inquiry as envisaged by the Supreme Court before terminating the service of the petitioner on the ground of alleged misconduct.
12. The Constitution Bench in the case of Moti Ram Deka (supra), has observed thus:
"......There is thus no doubt that Art. 309 has to be read subject to Articles 310 and 311, and Art. 310 has to be read subject to Art 311. It is significant that the provisions contained in Art. 311 are not subject to any other provision of the Constitution. Within the field covered by them they are absolute and paramount. What then is the effect of the provisions contained in Art. 311(2)? Art. 311(2) reads thus:
"No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."
We are not concerned with the cases covered by the proviso to this article in the present appeals. It may be taken to be settled by the decisions of this court that since Art. 311 makes no distinction between permanent and temporary posts, its protection must be held to extend to all government servants holding permanent or temporary posts or officiating in any of them. The protection afforded by Art. 311(2) is limited to the imposition of three major penalties contemplated by the service Rules, viz., dismissal, removal or reduction in rank. It is true that the consequences of dismissal are more serious than those of removal and in that sense, there is a technical distinction between the two; but in the context, dismissal, removal and reduction in rank which are specified by Art. 311 (2) represent actions taken by way of penalty. In regard to temporary servants, or servants on probation, every case of termination of service may not amount to removal. In cases falling under these categories, the terms of contract or service rules may provide for the termination of the services on notice of a specified period, or on payment of salary for the said period, and if in exercise of the power thus conferred on the employer, the services of a temporary or probationary servant are terminated, it may not necessarily amount to removal. In every such case, courts examine the substance of the matter, and if it is shown that the termination of services is Page 18 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT no more than discharge simpliciter effected by virtue of the contract or the relevant rules, Art. 311(2) may not be applicable to such a case. If, however, the termination of a temporary servant's services in substance represents a penalty imposed on him or punitive action taken against him, then such termination would amount to removal and Art. 311(2) would be attracted. Similar would be the position in regard to the reduction in rank of an officiating servant. This aspect of the matter has been considered by this court in several recent decisions. This branch of the law must, therefore, be taken to be well settled."
The Constitution Bench has specifically held that the Article 309 of the Constitution of India have to be read subject to Articles 310 and 311 of the Constitution of India. It is further held that the termination in terms of contract of service may not amount to removal. In cases falling under the category of temporary or probation, the terms of contract or service rules may provide for the termination of the services on notice of a specified period, or on payment of salary for the said period, and if in exercise of the power thus conferred on the employer, the services of a temporary or probationary servant are terminated, it may not necessarily amount to removal, and if it is shown that the termination of services is no more than discharge simpliciter effected by virtue of the contract or the relevant rules, Article 311(2) of the Constitution of India may not be applicable to such a case. If, however, the termination of a temporary servant's services in substance represents a penalty imposed on him or punitive action taken against him, then such termination would amount to removal and Article 311(2) of the Constitution of India would be attracted. Thus, though the service of the petitioner can be said to have Page 19 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT been governed by the terms of contract, if by a punitive action she has been terminated, then such termination would amount to removal and Article 311(2) of the Constitution of India would be attracted. As a sequel, the procedure prescribed under the disciplinary rules framed under Article 309 of the Constitution of India is mandatory for imposing any punishment on an employee.
13. In the present case, indubitably, the petitioner is terminated from service on the ground of the alleged misconducts. In the affidavit-in- reply, the respondent no.3 has stated that since various complaints were received against the petitioner, the Programme Officer, ICDS Branch, Kheda has examined the matter, and the Anganwadi Workers gave their written statements confirming her several irregularities, and the then Programme Officer had put up a detailed note on the file and submitted the same to the District Development Officer, Kheda District Panchayat for appropriate action and on the basis of which, the respondent No.3 issued a show cause notice dated 10/11.06.2010. The respondent no.3 has placed reliance on such report dated 27.04.2010 inquiring into the misconducts of the petitioner. The same finds reference at serial no.3, in the impugned order. The respondent has placed reliance on the same and has observed in the impugned order that vide report dated 27.04.2010 at Reference No.3, the Child Development Officer has found the petitioner Page 20 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT guilty of the misconducts. Admittedly, such report is not supplied to the petitioner, and the same is relied upon by the respondent no.2 for terminating the service of the petitioner. Thus, issuance of the subsequent show cause notice dated 08.07.2010 to the petitioner becomes a futile exercise, since vide report dated 27.04.2010, it has been predetermined that the petitioner is guilty of the misconduct. Such approach of the respondent authority is in violation of the principles of natural justice since the report is prepared behind the back of the petitioner, wherein several statements of Anganwadi Workers have been recorded, who have deposed against the petitioner.
14. In both the aforementioned judgment, the Division Bench has confirmed the judgment and order of the learned Single Judge setting aside the termination conferring the relief of reinstatement with all consequential benefits and continuity of service as if the order of termination was never passed. Thus, the petitioner is required to be reinstated in service with all consequential benefits. However, a vital issue which is raised in the present writ petition apropos holding of a regular departmental inquiry after the reinstatement was neither raised before the learned Single Judge nor before the Division Bench.
15. In this context, I may with profit incorporate the observations of the Supreme Court in the case of Punjab Water Supply Sewerage Board Page 21 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT vs Ram Sajivan, 2007 (9) S.C.C. 86. The same are thus:
" 8 When the order of termination passed by the appellant on the ground of misconduct was set aside by the Labour Court, the only course open to it was to initiate a regular departmental proceedings. Once they had terminated the services of the respondent, during pendency of the criminal case which as noticed hereinbefore was set aside resulting in their re-instatement in services, which although did not preclude the appellant from taking further action against the respondents, the same was required to be done only in terms of the extant rules i.e. by initiation of a regular departmental proceedings."
16. Similarly, in the case of Kamal Nayan Mishra vs State of Madhya Pra- desh, 2010 (2) S.C.C. 169, the Apex Court has held thus:
"13 The termination of appellant without an inquiry or hearing was illegal and invalid. In the normal course, we would have set aside the termination and directed reinstatement with consequential benefits"
reserving liberty to the employer to initiate disciplinary proceedings. But the peculiar facts of this case require us to adopt a slightly difference approach to do complete justice between the parties. We have already pointed out that there are clear indications that the appellant was bonafide under the impression that he was required to give the particulars sought in column (12) of the form with reference to the date of his appointment. Further, the entire matter relates to an attestation form given in 1994 and appellant has already been out of service for more than seven years on account of the illegal termination from service without inquiry on 7.3.2002. We are therefore of the view that interests of justice would be served if the appellant is reinstated with continuity of service and other consequential benefits, dispensing with any further disciplinary action. The appellant will not entitled to any salary for the period 7.3.2002 till today."
17. Thus, as per settled proposition of law, if the punishment order has the foundation of misconduct, and the same is set aside, and the employee is ordered to be reinstated, then the employer can initiate a regular departmental proceedings for examining such misconduct. In the instant case the respondents have alleged serious irregularities, which require a detailed investigation and analysis. Hence, the petitioner cannot be Page 22 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019 C/SCA/9142/2011 CAV JUDGMENT allowed to enjoy the imperviousness from the departmental inquiry after reinstatement.
18. On the substratum of the foregoing observations and analysis, the following directions are issued:
a) The respondents are directed to reinstate the petitioner with all con-
sequential benefits, as if the order of termination was not in exist- ence;
b) Necessary orders reinstating the petitioner and conferring the con-
sequential benefits shall be passed within a period of 02 (two) months from the date of receipt of the writ of the order of this Court;
c) It will be open for the respondents to hold a regular departmental inquiry under the provisions of the Gujarat Panchayat Service (Dis- cipline and Appeal)Rules, 1997; AND
d) The petitioner shall fully cooperate with the departmental inquiry.
19. The petition is allowed accordingly. Rule is made absolute to the aforesaid extent.
Sd/-
(A. S. SUPEHIA, J.) ABHISHEK Page 23 of 23 Downloaded on : Sun Jun 30 22:03:36 IST 2019