Gujarat High Court
Virendrasinh Halubha Vaghela vs State Of Gujarat on 19 September, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3275 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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VIRENDRASINH HALUBHA VAGHELA
Versus
STATE OF GUJARAT
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Appearance:
MR JIT P PATEL(6994) for the Petitioner(s) No. 1
MR KURVEN DESAI, AGP for the Respondent(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 19/09/2022
ORAL JUDGMENT
1. Rule returnable forthwith. Mr. Kurven Desai, learned Assistant Government Pleader waives service of notice of Rule for the respondent - State while Mr. Joshi, learned counsel waives service of notice of Rule for the Page 1 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022 C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022 respondent No.2.
2. With the consent of the learned advocates for the respective parties, the petition is taken up for final hearing today.
3. By way of this petition, under Article 226 of the Constitution of India, the petitioner has challenged the order dated 14.5.2018 by which the services of the petitioner have been put to an end. The petitioner was appointed as Assistant Talati Cum Mantri, Class - III by an order dated 12.02.2015. He was appointed on contractual basis on a fixed pay for a period of five years.
Subsequently, an FIR came to be lodged namely; FIR CR-
I-1/2018 dated 12.2.2018 for offences punishable under Sections 7, 13(1)(d), 13(2) of the Prevention of Corruption Act. The petitioner was issued a show cause notice as to why his services should not be terminated. The show Page 2 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022 C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022 cause notice was issued on 13.4.2018. The petitioner against the order of District Development Officer preferred an Appeal, is still pending.
4. Mr. Patel, learned counsel for the petitioner would submit that the order of termination is stigmatic. He would rely on a decision in the case of State of Gujarat v. Chetan Rajgor rendered in LPA No.1596 of 2019 and LPA No.841 of 2019 and submit that the order is stigmatic.
5. Mr. Joshi, learned counsel for the respondent No.2 -
District Panchayat would submit that the appointment order and the terms therein gave a right to the employer in light of the condition No.9 in the terms of appointment to terminate the services on the ground of misconduct. The petitioner was issued a show cause notice and subsequently his services were terminated. He would submit that if reinstatement is ordered, there is no Page 3 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022 C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022 sanctioned set up on it the petitioner can be asked to work.
6. For the sake of convenience, the relevant paragraphs of the decision dated 15.04.2019 passed in LPA No.841 of 2019 in the case of State of Gujarat v. Rahul Aydanbhai Vank are reproduced hereunder:
"4.2 Reliance is placed on the decision of the Apex Court in the case of Chaitanya Prakash and Another vs. H. Omlarappa reported in (2010) 2 SCC 623 wherein termination of an employee was on the ground of unsatisfactory performance for which repeated notices were issued but the employee failed to improve upon and such act on the part of the employer was held to be not stigmatic. In the above decision, the Apex Court placed reliance on other decisions of the Apex Court including the decisions in the cases of Abhijit Gupta vs. S.N.B. National Centre, Basic Sciences [(2006) 4 SCC 469] and Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences [(2002) 1 SCC 520 wherein the Apex Court reiterated the principle to determine whether in substance an order of termination is punitive or not by ascertaining that whether prior to termination there was (a) full-scale formal inquiry
(b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt and if all three factors as above are present, the termination is to be held as punitive irrespective of Page 4 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022 C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022 the termination order. Conversely, if any one of the three factors is missing, the termination is to be upheld. Therefore, according to learned Assistant Government Pleader, the order impugned passed by the learned Single Judge deserves to be quashed and set aside.
5. As against above, Mr. Gautam Joshi, learned advocate appearing for respondent - original petitioner would contend that the learned Single Judge threadbare addressed to the issues involved in the writ petition and upon assigning reasons, arrived at a finding of stigmatic nature of order of termination and that was found even without lifting the veil as the order of termination on the face of it was containing plethora of misconducts which formed the foundation for passing the order of termination. He submitted that the order passed by the learned Single Judge was supported by various decisions of the Apex Court and therefore warrants no interference. He submitted that accordingly the appeal deserves to be dismissed.
6. Having heard learned advocates appearing for the respective parties and having regard to the facts and circumstances of the case, upon appreciation of rival submissions viz-a-viz challenge to the order passed by the learned Single Judge whereby the order of termination came to be quashed and set aside and consequential directions of reinstatement etc is issued, we find that order dated 23.09.2016 passed by the Chief Conservator of Forest refer to following instances:
(I) As per condition no. 8 of the order of Page 5 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022 C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022 appointment dated 08.08.2013, the petitioner was required to maintain a diary of work performed by him but such diary was not presented from time to time for which repeated instructions were issued.
(II) About work pertaining to plantation in different forests earmarked for the year 2015-
16, irregularities were found.
(III) Even in certain other forests, work of afforestation was found deficient.
(IV) At the time of monitoring by higher authorities, various ancillary duties to be discharged by the petitioner and to supervise, once again various irregularities were found and even after submitting sick report such leave was not approved.
(V) On different occasions, the superior authority tried to contact the petitioner at the time of field programme and to report at the office but again the petitioner had shown negligence in performance of duties and committed an act of indiscipline.
(VI) Even government record was destroyed.
6.1 Considering all such act of indiscipline and misconduct though the petitioner was expected to follow the discipline Rules, 1971 as stated in condition no. 8 of the appointment order, he failed to do so and therefore a decision was taken based on unsatisfactory work and gross negligence and Page 6 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022 C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022 indiscipline in performance of duties to put an end to his services.
7. 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 Page 7 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022 C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022 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 Page 8 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022 C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022 because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and 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 Page 9 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022 C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022 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 Page 10 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022 C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022 alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground where the aggrieved officer is not afforded a reasonable opportunity to defend himself as provided in Article 311(2). It is wrong to assume that it is only when there is a full scale departmental enquiry any termination made thereafter will attract the operation of Article 311(2)." (Paras 11 and 13) 5.6 It is the foundation of the order which really matters. The Supreme Court in Anoop Jaiswal (supra) stated that if from the record and the attendant circumstances of the present case it becomes clear that the real foundation for the order of discharge of the appellant-probationer was the alleged act of misconduct, the impugned order would amount to termination of service by way of punishment and in absence of any enquiry held in accordance with Article 311(2), it was liable to be struck down. The Supreme Court thereafter directed reinstatement of the appellant of the said case in service with the same rank of seniority he was entitled to before the impugned order passed as if it had not been passed at all.
5.7 In Ratnesh Kumar Choudhary (supra) also the Supreme Court considered its own various decisions on the aspect and after referring to the decision in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21] observed that the proposition of law operating two ways. In certain cases of temporary servants and probationers if the Page 11 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022 C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022 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."
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7. Even in the case of Chetan Jayantilal Rajgor (Supra), the Division Bench of this Court on 24.07.2020 in LPA No.1596 of 2019. Relevant paras therefore read 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 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 Page 13 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022 C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022 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."
8. What is evident from reading the contents of the decision is that if initiation of action is based on an unsatisfactory work, gross negligence or indiscipline, it tantamounts to being stigmatic and unless and until a full scale departmental inquiry is held, irrespective of whether the employee is a regular employee or a contractual employee, the result has to be the same. It has to be noted that before the Division Bench it was the stand of the State that an employee who is appointed on contractual basis need not be terminated after holding a full fledged inquiry. It was in the background of this objection of the government that the Division Bench held thus.
"11. From the overall material on record and in Page 14 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022 C/SCA/3275/2021 JUDGMENT DATED: 19/09/2022 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."
9. Having considered the decisions and the question of law that the Courts have decided, there is no reason therefore not to agree with the submissions of learned counsel for the petitioner inasmuch as the order that has been passed terminating the services of the petitioner could not have been so passed on the allegation of misconduct without holding full scale inquiry as laid down by the decisions referred to herein above.
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10. Accordingly, the order impugned dated 14.05.2018 passed by the respondent No.2 is quashed and set aside. The petitioner is ordered to be reinstated on the same terms and conditions on which he was initially appointed. In other words, since the order of termination is set aside, the respondents are directed to take back the petitioner in service on his original post as if the order of termination was not passed. There shall be no consequential benefits available. The respondents are however not precluded from proceeding against the petitioner in accordance with law.
11. The petition is accordingly allowed. Rule is made absolute. No order as to costs. Direct Service is permitted.
(BIREN VAISHNAV, J) VATSAL S. KOTECHA Page 16 of 16 Downloaded on : Wed Sep 21 22:01:09 IST 2022