Gujarat High Court
State Of Gujarat vs Jitendrakumar Rameshbhai Patel on 10 June, 2021
Author: Nirzar S. Desai
Bench: R.M.Chhaya, Nirzar S. Desai
C/LPA/429/2021 ORDER DATED: 10/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 429 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 13282 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 429 of 2021
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STATE OF GUJARAT
Versus
JITENDRAKUMAR RAMESHBHAI PATEL
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Appearance:
MR.DHAWAN JAYSWAL, AGP for the Appellant(s) No. 1,2
MR. JIT P PATEL(6994) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 10/06/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)
1. By way of this Letters Patent Appeal, the appellants herein (original respondents) have challenged the judgment dated 23.12.2020 passed by the learned Single Judge in Special Civil Application No. 13282 of 2019, whereby, while allowing the petition, the learned Single Judge quashed and set aside the order dated 17.12.2016 passed by the appellant no.2 herein (original respondent no.2) and directed to reinstate the respondent herein (original petitioner) within a period of four weeks from the date of the Page 1 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021 C/LPA/429/2021 ORDER DATED: 10/06/2021 receipt of the judgment on the original post with similar service conditions to make up total five years period as per the original appointment and further held that the respondent herein (original petitioner) shall not be entitled to any monetary benefits or salary for the intervening period and also held that the present appellants (original respondents) are not precluded from proceeding against the present respondent (original petitioner) in accordance with law for the alleged misconduct.
2. Being aggrieved and dissatisfied with the aforesaid judgment dated 23.12.2020, the appellants have preferred the present Letters Patent Appeal.
3. The name of the parties are mentioned in this order as per their status in the petition.
4. The brief facts giving rise for filing of this appeal are stated as under:
4.1. The petitioner was appointed on 26.09.2012 after due selection procedure undertaken by the Gujarat Subordinate Service Selection Board and was appointed on the post of Revenue Clerk. His appointment was on fixed pay for a period of five years. The petitioner joined services on 29.09.2012. Subsequently, an F.I.R.Page 2 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021
C/LPA/429/2021 ORDER DATED: 10/06/2021
was registered against the petitioner on
22.12.2015 being C.R. No. I-12 of 2015 before the ACB Police Station, Mehsana for the offences punishable under Sections 7, 12 and 13 of the Prevention of Corruption Act, 1988.
The petitioner was arrested in connection with the aforesaid F.I.R. and subsequently, vide order passed by this Court in Criminal Misc. Application (for regular bail) No. 145 of 2016 dated 06.01.2016, he was enlarged on regular bail.
4.2. Since, the F.I.R. under the provisions of the Prevention of Corruption Act, 1988, was registered against the petitioner, the petitioner was suspended initially from the service and thereafter, a show cause notice dated 19.03.2016 was issued by the original respondents asking the petitioner (respondent herein) as to why his service which is of contractual nature should not be terminated, in view of the serious misconduct committed by the petitioner. The petitioner submitted his reply to the show cause notice dated 19.03.2016 vide his reply dated 04.04.2016 and pleaded innocence.
4.3. The respondent no.2 vide order dated Page 3 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021 C/LPA/429/2021 ORDER DATED: 10/06/2021 17.12.2016, after considering the reply
tendered by the petitioner (respondent herein) dated 04.04.2016 terminated the services of the petitioner, in view of seriousness of misconduct committed by the petitioner.
4.4. The original petitioner (present respondent) challenged the aforesaid order dated 17.12.2016 before the learned Single Judge of this Court by filing writ petition being Special Civil Application No. 13282 of 2019 and the learned Single Judge vide judgment dated 23.12.2020 allowed the petition as stated in the foregoing paragraph.
5. Being aggrieved by the aforesaid judgment dated 23.12.2020, the appellants (original respondents) have preferred the present Letters Patent Appeal.
6. We have heard the learned Assistant Government Pleader Mr. Dhawan Jayswal for the appellants-State and learned advocate Mr. Jit P. Patel for the respondent herein through video conferencing.
7. Learned AGP has submitted that the learned Single Judge has committed an error by not appreciating the fact that the petitioner's (respondent herein) employment was of contractual nature and hence, in Page 4 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021 C/LPA/429/2021 ORDER DATED: 10/06/2021 view of such misconduct alleged against the petitioner and considering the fact that the petitioner's appointment is of contractual nature, even without full-fledged inquiry, the petitioner's services can be terminated. It was further contended by the learned AGP that since the F.I.R. registered against the present respondent (original petitioner) was for illegal gratification and considering the allegations made against the petitioner in the F.I.R. were about the integrity of the petitioner, the misconduct of the petitioner being grave, the authority was justified in terminating the services of the petitioner, no full-fledged inquiry was required, as the petitioner had not completed five years in the services. Learned AGP further submitted that since the petitioner was given a show cause notice dated 19.03.2016 and petitioner's reply to that dated 04.04.2016 was considered while terminating his services, principles of natural justice can be said to have been duly complied with and hence, petitioner cannot make a grievance that principles of natural justice were not complied with. According to the learned AGP, looking to the gravity of the misconduct, no full-fledged inquiry was required, as the petitioner was not a permanent employee.
8. As against that, learned advocate Mr. Jit Patel appearing for the respondent in this Appeal (original Page 5 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021 C/LPA/429/2021 ORDER DATED: 10/06/2021 petitioner) submitted that the F.I.R. was falsely registered against the petitioner. The petitioner has not accepted any illegal gratification, anywhere in the complaint, name of the petitioner is not mentioned nor there are any allegation that the petitioner has demanded any bribe and therefore, the petitioner has submitted a detailed reply dated 04.04.2016 in response to the show cause notice issued by the respondent no.2, but at the time of passing of the impugned order of the termination dated 17.12.2016, the reply of the petitioner (respondent herein) dated 04.04.2016 was not considered in its true perspective. According to the learned advocate Mr. Patel, the order of termination is a stigmatic order, and therefore, as rightly held by the learned Single Judge, a full-fledged inquiry was required to be conducted. In support of his contentions, learned advocate Mr. Jit Patel relied upon the judgment of the Division Bench of this Court in the case of the State of Gujarat and Others v/s. Chetan Jayantilal Rajgor and others reported in 2021 (2) GLR 1211 and submitted that in almost identical set of facts, when the learned Single Judge allowed the petition and ordered reinstatement of the petitioner, the State of Gujarat carried the aforesaid judgment into appeal by filing Letters Patent Appeal No. 1596 of 2019 and allied matters and the coordinate Bench of this Court has Page 6 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021 C/LPA/429/2021 ORDER DATED: 10/06/2021 dismissed those Letters Patent Appeals and the judgment of the learned Single Judge in almost identical set of facts has been confirmed, and hence, learned advocate Mr. Patel submitted that the present termination order dated 17.12.2016 also being a stigmatic one, the learned Single Judge has rightly quashed the order of termination, as the same was passed without holding the full-fledged inquiry.
9. We have perused the order dated 23.12.2020 passed by the learned Single Judge and we have also perused the material on record in the form of entire record of the Special Civil Application. While allowing the Special Civil Application, the learned Single Judge has observed in paragraph 8 to 12 as under:
"8. The position of law in relation to effecting termination of service of an employee, even if on the fixed pay, by passing a stigmatic order without following principles of natural justice came to be discussed by the Division Bench in the decision rendered in Letters Patent Appeal No.1596 of 2019 and allied matters dated 24.07.2020, wherein, the Division Bench while confirming the reasons and analysis of the decision rendered in the case of Chetan Rajgor v/s. State of Gujarat rendered in SCA No.4439 of 2017, in the background of facts as discussed by the learned Single Judge, has made observations in para 5, 6 and 8, which is reproduce as under:
"5. Having heard the learned counsels appearing for the respective parties and having gone through the submissions made by them and in view of analysis of relevant record, we have found that the order passed by the learned Single Judge appears to be exhaustive dealing with not only the status of the present respondents and whether the order passed against them is a stigmatic or not. The reasons reflecting from Para.5 onwards are based upon analysis of the relevant decisions in the context of present background of facts. Hence, we deem it proper to reproduce the same hereby :
"5. The question arises is whether the order was punitive and amounted to stigma which ought to have preceded by a Page 7 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021 C/LPA/429/2021 ORDER DATED: 10/06/2021 regular inquiry against the petitioner in respect of the allegations levelled against the petitioner employee eventhough petitioner was appointed for a fixed term of five years.
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 different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied Page 8 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021 C/LPA/429/2021 ORDER DATED: 10/06/2021 of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used."
(Emphasis supplied)(Para 9) 5.4 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) 5.8 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.
5.5 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 Page 9 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021 C/LPA/429/2021 ORDER DATED: 10/06/2021 service of the employee concerned. In the other line of decisions, the Supreme Court has ruled that if the facts revealed in the inquiry or from the narration of the order itself that the inquiry into the conduct was not the motive but it was a foundation and the allegation of misconduct considered against employee becomes foundation of termination of service of temporary servant or probationer, such action would become punitive and it would make the order legally unsound. The Supreme Court in Ratnesh Kumar Choudhary (supra) thereafter referred to the above quoted observations from Gujarat Still Tubes Limited (supra) terming them as instructive.
5.6 In Manishbhai Nayanbhai Mod v. Vadodara Municipal Corporation [2018(2) GLR 1636] the petitioner was Assistant Station Officer and was appointed for a fixed term. It was alleged against him that while serving in the Fire Brigade Branch of the Vadodara Municipal Corporation on the post of Assistant Station Officer, petitioner misbehaved with the Telephone Operator and tried to injured Telephone Operator physically. In the impugned order it was mentioned that while being on the sensitive post petitioner acted with negligency and carelessness in discharge of duties. Show- cause notice was issued against the petitioner and his reply was solicited. Thereafter his services put to an end, this Court referred all the aforesaid decisions to come to the conclusion that the order was founded on the allegations of misconduct and that it was punitive in nature casting stigma. It was held that, "Such an action could not have been taken, eventhough the petitioner was a fixed period employee, without giving the petitioner a full-fledge opportunity to defend and thus by holding a regular departmental inquiry.".
5.7 Decision in Manishbhai Nayanbhai Mod (supra) was challenged by way of Letters Patent Appeal No.189 of 2018, which came to be dismissed. The Division Bench, confirming the decision in Manishbhai Nayanbhai Mod (supra), observed as under.
"4.1 ... The above act on 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 full-fledged departmental inquiry, particularly, when termination order referred to following of Gujarat Civil Services [Discipline & Appeal] Rules, 1971, the issuance of show cause notice, receiving reply and then to take final decision to terminate services of an employee was unjust, unreasonable, arbitrary, in breach of the Rules, 1971, violative of principles of natural justice and Article 14 Page 10 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021 C/LPA/429/2021 ORDER DATED: 10/06/2021 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."
1. In another decision in Sandip Ajitsinh Vaghela v. State of Gujarat being Special Civil Application No.12071 of 2018 decided on 26th February, 2019 the same question had arisen where also the petitioner was Junior Clerk employed on temporary basis. In Rahul Aydanbhai Vank v. State of Gujarat being Special Civil Application No.889 of 2018 decided on 05th September, 2018, the petitioner was a contractual employee who was dismissed on the ground of insubordination. The order was found to have been passed on the allegation of misconduct. Same principles were applied and held that services could not have been terminated without undergoing the inquiry.
5.9 The aforesaid decision in Rahul Aydanbhai Vank (supra) was also confirmed in Letters Patent Appeal No.841 of 2019. In the following paragraph, the Letters Patent Bench referred to Manishbhai Nayanbhai Mod (supra) and other decisions to come to the following conclusion to clearly observe that full- scale formal inquiry was requirement of law before the services could have been terminated.
"8. Even decision relied by learned Assistant Government Pleader in the case of Chaitanya Prakash and Another v. H. Omlarappa reported in (2010) 2 SCC 623 quotes decision in the case of Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences [(2002) 1 SCC 520] 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."
When the impugned order is considered in light of the above principles and the position of law, it could be well discerned that the the event of filing of F.I.R. against the petitioner was treated as base and it was concluded readily by the respondents that the petitioner had committed misconduct for accepting the bribe. Upon this foundation, the termination was effected. It was on the ground of misconduct and therefore the stigmatic order, which could not have been passed without a full scale inquiry.
6.1 An attempt was made in vain by learned advocate for the respondents that there was compliance of natural justice as Page 11 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021 C/LPA/429/2021 ORDER DATED: 10/06/2021 the notice was issued to the petitioner. A mere notice would not suffice. No inquiry was held, no charge was framed against the petitioner. Without issuing the charge and without putting the petitioner to knowledge of the allegation which he was to precisely answer, the principles of natural justice could not be said to be followed when the order was founded on misconduct. As held by the Division Bench of this Court in the judgment above, it necessitated a full scale inquiry against the petitioner after issuing show-cause notice and by framing appropriate charge, conducting it in accordance with the natural justice.
6.2 The petitioner was a fixed term employee who was appointed as Assistant Motor Vehicle Inspector, Class-III as per appointment order dated 17th May, 2013 for a period of five years. The impugned order came to be passed on 22nd April, 2015. Therefore, the relief which would ensue for the petitioner shall be upto making up good the total period of five years of employment.
7. As a consequence of above discussion and reasons, the impugned order dated 30th March, 2015 passed by respondent No.2 - Commissioner of Transport is hereby set aside. Respondents are further directed to reinstate the petitioner on original post of Assistant Motor Vehicle Inspector, Class-III with continuity of service and with payment of salary/wages for the interregnum as well as the consequential benefits which may arise, as if the order of termination was never passed. The reinstatement of the petitioner directed as above shall be for the period upto making of the total original period fixed for his employment as per order of appointment. The resultant monetary benefits to be paid to the petitioner within a period of eight weeks from the date of receipt of the present order."
6. In the cognate matter also, almost similar observations are visible and as such, we do not propose to over burden the present order. These observations if to be examined in the background of present fact situation, the same are found to be just and proper. It appears here that the original petitioners were dealt with by issuance of show cause notice with respect to serious charges levelled against them and the notice was given stating as to why in terms of their appointment, they may not be dismissed from the services. Now, this show cause notice appears to have been replied at length by the original petitioners and subsequently, by giving a brief opportunity, without conducting full-scale departmental inquiry, an order of dismissal came to be passed. This procedure which has been adopted by the department against both the original petitioners and undisputedly, no departmental inquiry having been conducted against them, the learned Single Judge, on the basis of relevant proposition of law laid down by the Apex Court, was justified in his view that in the absence of full-scale departmental inquiry, the services of the writ petitioners cannot be terminated in the manner in which it has been put to an end. We Page 12 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021 C/LPA/429/2021 ORDER DATED: 10/06/2021 see no infirmity in the order passed by the learned Single Judge, particularly having gone through the relevant record made available to us.
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. In light of the aforesaid principles of law settled by Division Bench and looking to the undisputed facts of the present petition, the petitioner was appointed on 29.09.2012 as Revenue Clerk for a fixed period of 5 years as stated in the appointment order and his tenure was to come to an end as per appointment order, on 29.09.2017. However, in view of impugned order dated 17.12.2016, the petitioner's service was put to an end after about four and half years.
10. Thus, it is clear from the bare reading of the contents made in the termination order that the foundation of the impugned order was alleged misconduct of demanding and accepting bribe of Rs.1,000/-, for which afore-mentioned F.I.R. was registered. Thus, the order in question could be treated as stigmatic. It is a matter of fact that the termination order was passed without following principles of natural justice and without holding any full scale departmental inquiry and therefore, the position of law as reproduced herein above would operate to grant relief in favour of the petitioner.
11. Since the impugned order will be liable to be quashed and petitioner will be liable to be reinstated, it is clarified that the petitioner's reinstatement would be for the remainder period which would make up the total fixed period of five years, for which he was appointed.
12. In view of above fact situation and position of law, impugned order dated 17.12.2016 passed by the respondent No.2 - Collector, Mehesana is hereby quashed and set aside and the respondents are directed to reinstate the petitioner within a period of four weeks from the date of receipt of this order on the original post with similar service conditions to make up total five years period as per the original appointment period. It is further made clear that the petitioner shall not entitled to any monetary benefits or salary for the intervening period and the respondents are not precluded from Page 13 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021 C/LPA/429/2021 ORDER DATED: 10/06/2021 proceeding against the petitioner in accordance with law for the alleged misconduct."
10. In view of the above observations made by the learned Single Judge relying upon the Division Bench judgment in the case of Chetan Rajgor (supra), wherein, the entire case law has been elaborately discussed and it has been held that in absence of full-fledged departmental inquiry, services of the delinquent cannot be terminated, if the order of termination is found to be stigmatic and also considering the fact that even this Court has also taken similar view in Letters Patent Appeal No. 99 of 2021 decided on 08.06.2021, we do not find any reason to interfere with the view taken by the learned Single Judge, as the same is based on numerous judgments on the subject.
11. Hence, we are in complete agreement with the view taken by the learned Single Judge and, therefore, the present Letters Patent Appeal deserves to be dismissed and the same is dismissed. No order as to costs.
12. In view of the above, connected Civil Application would not survive, and therefore, the same is also disposed of, accordingly.
(R.M.CHHAYA, J) (NIRZAR S. DESAI,J) Pradhyuman Page 14 of 14 Downloaded on : Mon Sep 06 07:51:27 IST 2021