Gujarat High Court
Sureshbhai Bhikhabhai Jograna vs State Of Gujarat on 1 February, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/18601/2019 ORDER DATED: 01/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18601 of 2019
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SURESHBHAI BHIKHABHAI JOGRANA
Versus
STATE OF GUJARAT
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Appearance:
MR JIGAR G GADHAVI(5613) for the Petitioner(s) No. 1
MR.MEET THAKKAR, AGP for the Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 01/02/2022
ORAL ORDER
1. RULE returnable forthwith. With the consent of the learned advocates for the respective parties, the petition is taken up for final hearing. Mr.Meet Thakkar learned AGP waives service of Rule on behalf of the respondent - State.
2. The short challenge in this petition under Article 226 of the Constitution of India is the order of termination dated 16.02.2019, by which, the services of the petitioner have been terminated without notice on 11.09.2018 on the basis of an FIR lodged against him and the same was without holding departmental proceedings against him.
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3. Facts in brief are that the petitioner was appointed as a Jail Sahayak for the period of five years on contractual basis. He was arraigned in an ACB trap and an FIR being C. R. No. I - 06 of 2018 dated 19.08.2018 was lodged with the ACB, Surendranagar Police Station under Section 7, 12 and 13(2) of the Prevention of Corruption Act, 1988.
4. Mr.Jigar Gadhvi would rely on the decision of the Division Bench of this Court rendered in Letters Patent Appeal No.1596 of 2019 dated 24.07.2020.
5. Mr.Meet Thakkar learned AGP would draw the attention of the Court to the affidavit-in-reply filed on behalf of the respondent no.2. He would submit that the petitioner was appointed on a contractual basis for a period of five years. Condition No.22 of the appointment order dated 04.09.2015 clearly stipulated that the petitioner can be removed from service on the grounds of misconduct by giving one month's salary or one month notice. It was in fact given on 11.09.2018. In other words, the submission Page 2 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 of the learned AGP would be that in due compliance of the terms of the appointment, the services of the petitioner were terminated.
6. At this stage, it would be worthwhile to refer to the the recent decision of the Division Bench of this Court rendered in Letters Patent Appeal No.761 of 2021 dated 24.12.2021. The relevant paragraphs of the said judgment read as under:
" Heard learned advocate Mr. Yatin Oza assisted by learned advocate Ms. Srushti Thula for the appellants, learned Assistant Government Pleader Mr. Sahil Trivedi for the respondent State and its authorities and learned advocate Mr. Hemant Munshaw for the respondent No.3, at length.
2. The appellants in this Letters Patent Appeal are the original petitioner Nos. 1 to 6 and 9. The appeal is directed against judgment and order dated 26th March, 2019 of learned single Judge whereby the petition came to be disposed of with certain observations.
2.1 In the Special Civil Application, what was prayed by the appellants petitioners was to set aside order dated 16th October, 2003 passed by the District Primary Education Officer. It was further prayed to direct the respondent District Primary Education officer to place the petitioners as Vidhyasahayaks in a regular pay scale of Rs. 4000-6000 after completion of two years of their service as Vidhyasahayaks. It Page 3 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 was also prayed to reinstate the petitioners on the post of Vidhyasahayaks with full back wages and with all service benefits, as if their services were never terminated.
3. Noticing the basic facts, the petitioners were appointed as Vidhyasahayaks in fixed pay of Rs. 2500/-. They had put in more than two years. It is the case that one Rameshbhai Patel who was Assistant Teacher, impressed upon the petitioners that he had relation with the Education Minister and could obtain for the petitioners recommendation for transfer. He collected applications from the petitioners for transfer. It was stated that thereafter, the Minister called the petitioners in the chamber on a particular day. The said Rameshbhai Patel prepared false recommendation letters purported to have written by the Education Minister. The petitioners accordingly faced action by the District Primary Education Officer.
3.1 The District Primary Education Officer passed order of termination against the petitioners on 16th October, 2003. It was on the ground that the petitioners had submitted application for transfer without obtaining prior permission of the said officer. It was the case of the petitioners that without following any procedure and without giving any show cause notice and without giving any reasonable opportunity to defend, the order dated 16th October, 2003 terminating their services came to be passed and they were removed from the post of Vidhyasahayaks. It is on the premise of such basic facts that the aforesaid prayers were made in the petition.
3.2 By filling affidavit-in-reply, respondent Page 4 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 No.3, District Primary Education officer contested the petition stating that the petitioners were appointed on fixed term basis for five years on a fixed monthly pay as per the policy of the State Government. Their services were not transferable, it was stated. The applications for transfer of the petitioners Vidhyasahayaks were not liable to be accepted much less forwarded to the higher authorities. Despite that certain documents in the nature of transfer orders of the petitioners were received under the purported signature of Under Secretary to the State Government, such letters were fabricated and bogus. It was due to this that the action was required to be taken against the petitioners, it was contended.
3.3 The respondent authorities took stand that the petitioners had committed fraudulent practice which was serious and grave. It was stated that the petitioners were heard on 28th August, 2003 and they gave their statement on 22nd September, 2003. It was stated on oath that "after hearing the present petitioners and as the serious misconduct, irregularity and fraud were found to be proved, respondent No.3 passed the impugned order terminating the petitioners from services of Vidhyasahayaks on 16th October, 2003." It was further said that in view of involvement of the petitioners in serious case of fraud and since the criminal complaints were also lodged against them, after sending notice and hearing the petitioners, the action of termination their services was taken. It was claimed that full opportunity of hearing was given to the petitioners.
3.4 The conditions of appointment of the petitioners as Vidhyasahayaks inter alia provided that if the petitioners completed two Page 5 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 years of satisfactory service as Vidhyasahayaks, they could be placed in the regular pay scale. The appointment was for five years with further stipulation that if within five years if the appointee could not be placed in the regular pay scale, they may be so placed after completion of five years. The petitioners were taken on fixed salary of Rs. 2500/- per month and not other allowances were payable in addition to the fixed amount.
3.5 The orders of termination of the petitioners are on record. It is recited in the orders that the petitioners attempted to fabricate the documents to have their services transferred as Vidhyasahayaks to a place in different Talukas although there were no rules for transfer. The petitioners had made such application as a special case. This was learnt when the petitioners were called personally. It was further stated in the order that by making transfer application as above without permission, the petitioners had acted arbitrarily and had committed a serious misconduct. As a result, the petitioners' services were terminated with immediate effect. It appears that before passing the aforesaid order, the petitioners were called for remaining present stating that they were required in connection with their transfer applications.
4. Before learned single Judge, it was submitted that FIR was also lodged on 6 th June, 2003 against the petitioners in respect of the same incident which resulted into special ACB Case. The petitioners, however, came to be acquitted by the competent court as per judgment and order dated 19th June, 2018. It was sought to be contended before the learned single Judge that in view of acquittal orders, Page 6 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 termination of petitioners were required to be set aside.
4.1 Learned single Judge proceeded to consider the controversy with prefacing observation that the court was deciding the controversy about the termination after lapse of long period of 15 years. According to learned single Judge, the petitioners were subjected to departmental inquiry. Rested on such premise, it was further stated that the standard of proof in criminal case and in the departmental proceedings, were different. In the criminal case, it is the proof beyond reasonable doubt, whereas the proof in the departmental proceedings, is preponderance of probabilities. Learned single Judge then considered whether the acquittal in the criminal case could be said to be an honourable acquittal.
4.2 Learned single Judge thereafter observed in para 14 as under, "The case of the petitioners cannot be read in isolation that they are not responsible for the fabricated orders of transfer since such orders have been individually passed in favour of the petitioners. As regards the contentions raised by the learned advocate Mr.Jasani that since the petitioners were acquitted, they are liable to be reinstated, the same does not merit acceptance. It is no more res integra that while the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. The Supreme Court in the case of Union Territory, Chandigarh Administration vs. Pradeep Kumar, 2018 (1) S.C.C. 797 has observed thus:Page 7 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022
C/SCA/18601/2019 ORDER DATED: 01/02/2022 "The acquittal in a criminal case is not conclusive of the suitability of the candidates in the concerned post. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. What is honourable acquittal, was considered by this Court in Deputy Inspector General of Police and Another v. S. Samuthiram (2013) 1 SCC 598, in which this Court held as under:
"24. The meaning of the
expression "honourable
acquittal" came up for
consideration before this Court in RBI v. Bhopal Singh Panchal (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant Page 8 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
4.3 Finally, the petition was disposed of with the following final observations, "Thus, the writ petition fails, however, if the petitioners are able to point out any regulations or rules or resolutions to the respondent authorities which enables review of the impugned orders on their acquittal, they are granted liberty to do so. Liberty is reserved in favour of the petitioners to point out such resolutions/ administrative regulations/ instructions, wherein circulars the power or is conferred on the respondent authorities to review the punishment/penalty order passed in the departmental proceedings, after the employee is acquitted in the criminal proceedings provided that both of them are based on identical facts. Necessary representation can be made by the petitioners to the respondent authorities circular and if provide the rules, the regulations review, the or any respondent authorities may review the case of the petitioners by examining the acquittal of the petitioners whether the same is honourable or on benefit of doubt. If any representation is made by the petitioners, the respondents may decide the same in accordance with the rules and Page 9 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 regulations within a period of three(3) months from the date of receipt of such of aforesaid representation."
5. The factum recorded by learned single Judge that departmental inquiry was held against the petitioners, does not bear fortification from the record nor it is the case even of the respondent authorities in their affidavit-in-reply that departmental inquiry was held against the petitioner before passing the impugned order. The defence putforth was that the petitioners were temporary employees appointed for a fixed period and the order terminating their services was passed after calling them personally by issuing notice and recording their statements. Admittedly, no specific charge was framed nor the chargesheet was issued. The full-fledged departmental inquiry was never held against the petitioners.
5.1 The above aspects assume significance when we notice the nature of the impugned order of termination of services of the petitioners. The order of termination was based on clear allegation that they had committed misconduct by submitting the transfer applications though the same was prohibited for which no permission was taken, it was recited in the order that they had fabricated false documents to try and ensure that their request for transfer was accepted. A bare reading of the order of termination clearly reveals that it was with reference to the allegation of misconduct and was stigmatic in nature.
5.2 In Chetan Jayantilal Rajgor vs. Ste of Gujarat & Others being Special Civil Application No. 4439 of 2017 decided on 8th May, 2019, the question considered by the Page 10 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 court was whether the order punitive in nature and casting stigma ought to have preceded by regular inquiry against the petitioner in respect of the allegations mentioned in the order even though the petitioner was appointed for a fixed term of five years. The court relied on the decision of the Supreme Court in Chandra Prakash Sahi vs. State of U.P. [(2000) 5 SCC 152] in which the Apex Court explained the concept of motive and foundation which provided the basis for judging whether termination could be said to be founded on misconduct to become stigmatic. The impugned order in that case was set aside. The respondents were directed to reinstate the petitioner on the original post of Assistant Motor Vehicle Vehicle, Class-III with continuity of service with back wages as well as with consequential benefits which may arise as if order of termination was never passed. It was held that the order was stigmatic and was passed without following regular departmental inquiry.
5.3 In that case, an argument was canvassed that there was compliance of natural justice as the notice was issued. The court held that mere a notice would not suffice since no inquiry was held and no charge was framed against the petitioner. It was held that without issuing chargesheet and without putting the petitioner to the knowledge of factual allegations and precise case, the principles of natural justice could not be said to have been complied with. It necessitated full-fledged inquiry after issuing the show cause notice and by framing charge and thereafter conducting departmental inquiry in accordance with law and principles of natural justice.
5.4 The decision in Chetan Jayantilal Rajgor (supra) came to be confirmed by the Division Page 11 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 Bench in Letters Patent Appeal No. 1596 of 2019 decided as per judgment dated 24th July, 2020.
5.5 In Manishbhai Nayanbhai Mod vs. Vadodara Municipal Corporation [2018(2) GLR 1636], the petitioner was Assistant Station Officer and the 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 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."
5.6 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 Page 12 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 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 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."
5.7 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 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.
5.8 The aforesaid decision in Rahul Aydanbhai Vank (supra) was also confirmed in Letters Patent Appeal No.841 of 2019. In Page 13 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 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."
6. When the order of termination passed against the appellants petitioners and impugned before the learned single Judge is considered in light of the aforesaid principles laid down, it could be discerned that the termination was founded on the alleged mis- conduct of the petitioner that they fabricated the documents or at least as parties to the process of such fabrication in order to seek transfer and that they had committed misconduct by submitting transfer applications which was impermissible. Even otherwise the order was manifestly on the ground of Page 14 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 misconduct. It became stigmatic order. It could not have been passed without full scale inquiry. There was a clear nexus between the alleged misconduct and the order of termination.
6.1 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 Page 15 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used."
6.2 The law laid down in Chetan Rajgor (supra), in Manishbhai Nayanbhai Mod (supra) as well as in Sandip Ajitsinh Vaghela (supra) and in Rahul Vank (supra) holds the field. In respect of the impugned order in the instant case, the said law will apply. A vain attempt was made on behalf of the respondents to submit that when learned single Judge decided the petition and passed the impugned order, the above decisions were not holding the field. This submission is fallacious inasmuch as the decision in Manishbhai Nayanbhai Modh (supra) was prior to the impugned order dated 26 th March, 2019. Even otherwise, it is trite principle that law prevalent at the time of deciding the controversy shall govern and shall have to be applied for crystalising the rights of the parties.
7. We now advert to the nature of relief to be granted in the facts of the present case. The termination of service having been found stigmatic and without compliance of requirements of holding full fledged inquiry, the same has to be set aside. However, the petitioners were appointed initially for a period of five years as per order dated 14th December, 2001. The impugned order came to be passed on 16th October, 2003. Therefore, while directing reinstatement of the appellants- petitioners after setting aside the impugned order, the relief of reinstatement to the petitioners would ensue so as to make up good the total period of five years of employment for the petitioners. All the rest of the conditions of appointment shall govern.
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8. As far as the aspect of grant of back wages to the appellants is concerned, while on behalf of the appellants, the relief of back wages was pressed by submitting that the back wages have to follow automatically when the reinstatement is directed upon holding the termination illegal, certain conspicuous aspects stare at the face of the controversy in this case fir considering the issue of back wages. Not only that long time has elapsed since the appellants are ordered to be reinstated by this order and the principle of no work no pay would apply. What becomes decisive in the matter on this score is the factum that the appellants were appointed for five years initially and during such five years their services came to be terminated by passing the impugned order. They are reinstated as per the above direction for the remainder period providing further that all other conditions in respect of nature of their appointment would operate. In such circumstances, the question of grant of back wages does not arise. The appellants will not be entitled to any back wages.
9. It goes without saying that the respondent authorities are not precluded from proceeding against the appellants petitioners in respect of the alleged misconduct in accordance with law.
10. As a result of the above discussions and reasons, the impugned judgment and order of learned single Judge dated 26th March, 2019 is hereby set aside. In consequence thereof, the order of termination dated 16th October, 2003 is also set aside. The respondents are directed to reinstate the petitioners on their original post, who shall hold such post for the remainder period of their appointments and shall be bound by all terms and conditions Page 17 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022 C/SCA/18601/2019 ORDER DATED: 01/02/2022 originality attached to their appointment orders. In the facts of the case, the appellants shall not be paid any amount towards back wages.
11. The present Letters Patent Appeal is allowed accordingly to the above extent and in the above terms."
7. The respondent is directed to reinstate the petitioner as if the order of termination was not passed, on the same terms and conditions as he was so appointed not being entitled to back-wages as he was a contractual employee, liberty to pass a fresh order after holding a proper inquiry.
8. Petition is allowed in above terms. Direct service is permitted.
(BIREN VAISHNAV, J) ANKIT SHAH Page 18 of 18 Downloaded on : Wed Feb 02 20:49:43 IST 2022