Gujarat High Court
Chamar Bharatkumar Venubhai vs Dy. District Development Officer on 26 August, 2020
Equivalent citations: AIRONLINE 2020 GUJ 715
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/11419/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11419 of 2018
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CHAMAR BHARATKUMAR VENUBHAI
Versus
DY. DISTRICT DEVELOPMENT OFFICER & 1 other(s)
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Appearance:
MR JV JAPEE(358) for the Petitioner(s) No. 1
MR BHARGAV PANDYA, ASSTT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 2
MR MANISH J PATEL(2131) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 26/08/2020
ORAL ORDER
1. Present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs:-
"(a) YOUR LORDSHIPS be pleased to issue the writ of mandamus or any other appropriate writ, order or direction of this Hon'ble Court and be pleased to quash and set aside the order passed by respondent no.1 dated 25.4.2018 removing the petitioner from service on the ground of alleged misconduct in the discharge of the duties without holding an inquiry in consonance with the principles of natural justice.
(b) YOUR LORDSHIPS be pleased to stay the implementation, execution and operation of the impugned order of removal from service dated 25.5.2018 and be pleased to direct the respondent no1. To allow the petitioner to discharge his duties as Talati cum Mantri and draw his salary accordingly pending the admission, hearing nd final disposal of this petition.
(c) .............."
2. The case of the petitioner is that the petitioner was appointed and posted as Talati-cum-Mantri in Class-III on ad-hoc basis in Verabar, Taluka Idar, District Sabarkantha on 5.11.2014 on fixed pay scale of Rs.7800/- for a period of five years and after completion of ad-hoc period of 5 years, if his services are found to be satisfactory, then he would be appointed on permanent basis as Page 1 of 11 Downloaded on : Thu Aug 27 05:54:20 IST 2020 C/SCA/11419/2018 ORDER Talati-cum-Mantri (Class-III). According to the petitioner, while he was discharging his duties as Talati-cum-Mantri on ad-hoc basis, a criminal complaint came to be instituted on 21.3.2018 against him for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, allegedly demanding a bribe of Rs.12,000/- for sanction of the benefits of Ambedkar Avaas Yojna Scheme which was meant for a weaker section of the society. On the basis of such criminal case, according to the petitioner, he was summarily dismissed from service vide order dated 25.4.2018 without holding any departmental inquiry or without serving any notice or giving any chance to make his representation. It is this dismissal/ removal order which is made the subject matter of the present petition before this Court by invoking the extraordinary jurisdiction.
3. It appears from the record that on 2.8.2018, the Court was pleased to admit the petition and later on, in view of the order which has been passed in Civil Application No.1 of 2019 for fixing date of hearing dated 2.7.2019, the matter has come up for consideration finally before this Court after few adjournments taken by learned advocates. It further appears that no reply is filed by the respondent authorities, though served upon them.
4. With the aforesaid background of facts situation, the Court has heard the petition finally with the request and consent of learned advocates for the parties.
5. Learned advocate Mr. J.V. Japee appearing on behalf of the petitioner has vehemently contended that the petitioner was appointed on ad-hoc basis on a fixed salary of Rs.7800/- for a period of five years. But, during this passage of five years, since the Page 2 of 11 Downloaded on : Thu Aug 27 05:54:20 IST 2020 C/SCA/11419/2018 ORDER criminal complaint is filed, the respondent authority has without holding any departmental inquiry or without giving any sufficient opportunity to represent and in complete disregard to the principle of natural justice has put an end to the service of the petitioner by passing the order of dismissal/ removal and as such, this being in quite contrast to the principle propounded by series of decisions that such kind of action is impermissible in the manner in which it has been taken, the relief prayed for in the petition deserves to be granted.
5.1. Learned advocate Mr. Japee, to substantiate his contention, has submitted that in several petitions, identical issue is dealt with by the Coordinate Bench of this Court and clearly a proposition is laid down that whenever any charge is leveled against the petitioner on account of misconduct or on account of this situation, wherein a misconduct is alleged, it is obligatory on the part of the department to conduct a full-fledged departmental inquiry and cannot put an end to the service summarily. For this proposition, Mr Japee has relied upon the following decisions:-
(1) Order dated 16.10.2019 passed in Special Civil Application No. 16975 of 2018;
(2) Order dated 13.08.2019 passed in Special Civil Application No.10439 of 2019;
(3) Order dated 06.08.2019 passed in Special Civil Application No.11678 of 2019;
(4) Order dated 26.02.2019 passed in Special Civil Application No.12071 of 2018;
Mr. Jappee has also relied upon the decision of the Division Bench dated 6.8.2020 passed in Letters Patent Appeal Nos.395 and 396 of 2020 and has contended that since the issue is identically dealt with Page 3 of 11 Downloaded on : Thu Aug 27 05:54:20 IST 2020 C/SCA/11419/2018 ORDER and covered by these aforesaid decisions, the relief contained in the petition be granted in the interest of justice.
6. To the aforesaid submissions, learned advocate Mr. Manish Patel appearing on behalf of the contesting respondent No.1 has initially tried to contest the petition on the ground that the petitioner has indulged in a serious misconduct of taking bribe during the ad-hoc tenure of his service and as such, he was rightly dismissed from the service. However, later on, upon the aforesaid decisions taken by several Coordinate Benches of this Court, including the recent decision of the Division Bench, as stated above, he has fairly and candidly submitted that nothing much to be resisted since the proposition is clearly laid down and undisputedly, the departmental inquiry has not been conducted and has left the matter to the discretion of this Court.
7. Learned AGP Mr. Bhargav Pandya has adopted the stand of learned advocate Mr. Manish Patel appearing for the respondent No.1 and has left it to the discretion of the Court.
8. Having heard learned advocates for the parties and having gone through the material on record, before examining the validity of action, the relevant proposition of law laid down by series of decisions, the Court would like to deal with and reproduce some of the relevant observations contained in one of the decisions, which is also attracting the factual background of the present case. In case of Sandip Ajitsingh Vaghela Vs. State of Gujarat, [Special Civil Application No.12071 of 2018, decided on 26.2.2019], the Court was also confronted with almost similar factual background in which also, on account of serious misconduct, without holding departmental inquiry and compliance of principle of natural justice, Page 4 of 11 Downloaded on : Thu Aug 27 05:54:20 IST 2020 C/SCA/11419/2018 ORDER the order of removal came to be passed and the petition came to be allowed. Relevant observations contained in para 5 of the said decision is reproduced hereinafter:-
"5. 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 delineated and discussed by this Court in Imranbhai Anwarbhai Majothi v. State of Gujarat being Special Civil Application No.17872 of 2017 decided on 30th November, 2017. In that case, petitioner was appointed as Beat Guard. The allegations were raised against him inter alia that he had stolen two passbooks, that he mentioned wrong information in the Register to allow trucks to pass-by illegally. It was stated in the order leading to his termination of service that he used the pass-book for illegal purpose for which it was stolen and due to the act of negligence, caused damage to the forest's properties to a large extent. It was mentioned in the order that if the petitioner was to continue in service, it would entail greater loss and that it was not advisable to continue the petitioner in service since the petitioner was found to be negligent and careless in discharge of his duties.
5.1 The law on the aspect was discussed with reference to the decisions of the Apex Court. 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 Page 5 of 11 Downloaded on : Thu Aug 27 05:54:20 IST 2020 C/SCA/11419/2018 ORDER 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 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-fledged 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 probationertrainees 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.
5.3 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 Page 6 of 11 Downloaded on : Thu Aug 27 05:54:20 IST 2020 C/SCA/11419/2018 ORDER 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) 5.4 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 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 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 Page 7 of 11 Downloaded on : Thu Aug 27 05:54:20 IST 2020 C/SCA/11419/2018 ORDER conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used."
(Emphasis supplied) (Para 9) 5.5.1 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.
5.6 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 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.
5.7 In Imranbhai Anwarbhai Majothi (supra), it was thereafter observed and held, "6. When the impugned order is assessed, evaluated and considered in light of the aforesaid principles, it is even not necessary to adopt the process of lifting of veil. It is not necessary to remove the facade even, for, the order in these very recitals could be manifestly said to be based on allegations of misconduct. The plain reading of order Page 8 of 11 Downloaded on : Thu Aug 27 05:54:20 IST 2020 C/SCA/11419/2018 ORDER castes stigma. It is a stigmatic action of termination of petitioner's service. Such an action could not have been taken, eventhough the petitioner was a fixed period employee, without giving the petitioner a fullfledge opportunity to defend and thus by holding a regular departmental inquiry. The employer is not allowed to hire and fire employee. Even if the temporary, ad-hoc or probationer employee is driven out of service on the ground of misconduct without holding inquiry and stigma is caste on his career by the punitive order, it is also a facet of behaving with hire and fire attitude by the employer."
5.8 Also stand to support the petitioner another decision of this Court in Special Civil Application No.1095 of 2016 decided on 21st September, 2016 in which, it was observed in paragraph 8 of the judgment that the order ex facie indicated that the basis of the order of termination was criminal complaint lodged against the petitioner. As the order was passed without compliance of natural justice, it was required indulgence of the Court, stated the Court, after discussing the position of law in that regard.
9. In addition to the aforesaid observations, it has been posted before the Court that recently also, in Letters Patent Appeal Nos.395 and 396 of 2020, the Division Bench has confirmed one of such propositions of law in the order dated 6.8.2020. Accordingly, since the principle of law is well enunciated and confirmed by the Division Bench of this Court and it is attracting and applying to the present background of facts, the Court would not like to express anything much on the proposition and would like to follow the same.
10. Here, in the present case, if we re-visit the facts, the petitioner was appointed on ad-hoc basis on a fixed salary vide order dated 5.11.2014, which is attached to the petition compilation on page 8, and as against that order of termination/ dismissal, if to be looked into, which is on page 11/A (typed copy), it appears that only on account of this instance of taking bribe for which criminal case is filed against the petitioner, an order of dismissal is passed Page 9 of 11 Downloaded on : Thu Aug 27 05:54:20 IST 2020 C/SCA/11419/2018 ORDER by the authority, on the basis of the Government Resolution dated 28.3.2016 and for this, undisputedly, no departmental inquiry was conducted against the petitioner nor any fair opportunity is given to meet with the action. Hence, this being the undisputed position on record, in the considered opinion of this Court, the observations contained in the aforesaid decision of the Coordinate Bench will have a direct bearing. Accordingly, the Court is of the opinion that the action initiated against the petitioner is impermissible. Hence, the case is made out to grant the reliefs as prayed for in the petition.
11. In light of the aforesaid contentions and recitals, the very foundation of the impugned order is alleged misconduct of taking bribe, for which, criminal complaint is registered, the action initiated against the petitioner is undoubtedly a penal action. Hence, the same is liable to be quashed and set aside in view of the aforesaid proposition of law.
12. However, since the impugned order has taken place during the tenure of ad-hoc employment of the petitioner, it is clarified that reinstatement of the petitioner would be for the period, which would make total fixed period for which he was appointed.
13. As a consequent of the aforesaid discussion and reasons, the impugned order dated 25.4.2018 removing the petitioner from services is hereby quashed and set aside and the respondents are - directed to reinstate the petitioner on his original post with continuity of service and salary/wages for the interregnum period with all consequential benefits, as if the order of termination was never passed.
Page 10 of 11 Downloaded on : Thu Aug 27 05:54:20 IST 2020 C/SCA/11419/2018 ORDER14. Reinstatement of the petitioner, as directed by the present order, shall be upto making up of the total original period of his employment as per the appointment order of the petitioner and the resultant monetary benefits shall be paid to the petitioner within a period of EIGHT WEEKS from the date of receipt of this order.
15. However, allowing of this petition will not deprive the authority from taking any action against the petitioner in accordance with law as per the rules but this observation will not absolve the authority from following the aforesaid directions which are issued of reinstatement and all other consequential benefits.
16. With the aforesaid observations and directions, the petition is ALLOWED. Rule is made absolute to the aforesaid extent.
17. Direct Service through FAX or e-mail is permitted.
(ASHUTOSH J. SHASTRI, J) NAIR SMITA V. Page 11 of 11 Downloaded on : Thu Aug 27 05:54:20 IST 2020