Gujarat High Court
Namitaben Rameshbhai Brahmaniya vs State Of Gujarat & on 16 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/3508/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3508 of 2016
==========================================
===============
NAMITABEN RAMESHBHAI BRAHMANIYA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================
===============
Appearance:
MR JAYANT P BHATT, ADVOCATE for the Petitioner(s) No. 1
MR JEET J BHATT, ADVOCATE for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP - ADVANCE COPY SERVED TO GP/PP for
the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
==========================================
===============
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/03/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner, a former Talati-cum-Mantri, whose services came to be terminated, has prayed for the following reliefs:-
A) To hold that the action of the respondent No.2 in issuing the order dated 19.2.2016 without holding any inquiry or without giving any opportunity of being heard is illegal, arbitrary, discriminatory and violative of Articles 14, 16 and 311 of the Constitution of India;
B) To quash and set-aside the impugned order dated 19.2.2016, passed by the respondent No.2, as being illegal, arbitrary, discriminatory and violative of Articles 14, 16 and 311 of the Constitution of India;
C) Pending admission hearing and final disposal of the petition, to stay the implementation, execution and operation of the impugned order dated 19.2.2016, passed by the respondent No.2;
Page 1 of 23HC-NIC Page 1 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER
2. The facts of this case may be summarized as under:-
2.1 In response to the public advertisement No.4/09, issued by the respondent No.1, for filling up the posts of Revenue Talati-III in the State of Gujarat on a fixed pay basis, in accordance with the Government Policy of the Finance Department dated 16.2.2006, the petitioner had applied for the same and was appointed in the fixed pay for a period of 5 years.
2.2 Immediately after the appointment, she served at the Upleta Taluka of District Rajkot for two years and thereafter, was transferred to a place situated in the Sanand Taluka of Dist. Ahmedabad. She served at the place situated in the Sanand Taluka for one year and thereafter, was transferred in 2014 to the Kadigam Taluka in the Ahmedabad district.
2.3 The Revenue Talati of the Motera village, Dist. Ahmedabad came to be promoted to the post of the Deputy Mamlatdar and as the post of the Revenue Talati at Motera fell vacant, the petitioner was given the charge as the Revenue Talati of Motera on 29.5.2015, in addition to the charge of the village Kadigam.
2.4 It appears from the materials on record that one FIR came to be lodged at the ACB Police Station, Ahmedabad against the petitioner herein and one Haresh Patel, serving as the Circle Officer of the Ramnagar, Sabarmati for the offence punishable under Sections 7, 13(1)(d), read with Section 13(2) of the Prevention of Corruption Act, 1988.
2.5 The petitioner was arrested in connection with the said First Information Report on 16th October, 2015, and was ordered to be Page 2 of 23 HC-NIC Page 2 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER released on regular bail on the next day i.e. on 17th October, 2015. 2.6 Thereafter, the petitioner received an order dated 19.2.2016, informing her that the respondent No.2 had taken decision to terminate the services of the petitioner by issuing one month's notice, with effect from 19.3.2016.
3. Being dis-satisfied with the order dated 19.2.2016, the petitioner has come up with this writ-application.
4. Mr. Jeet Bhatt, the learned advocate appearing for the petitioner vehemently submitted that without a regular Departmental inquiry, the services of the petitioner could not have been terminated by giving one month's notice. He submitted that although the petitioner was appointed on the post in a fixed pay for a period of five years, yet her appointment was otherwise regular. She had cleared the written examination and thereafter was appointed on the fixed pay basis in accordance with the Government Policy of the Finance Department dated 16.2.2006. He submitted that the plain reading of the order of termination would indicate that it is stigmatic.
According to the learned counsel, even if an employee is on probation, his services cannot be terminated except by a regular Departmental inquiry, if the termination is based on any misconduct alleged to have been committed by the employee and further, the same is stigmatic. According to Mr. Bhatt, Article 311 of the Constitution is violated in the case in hand. Mr. Bhatt further submitted that the prosecution against his client is without any basis for the same. He submitted that his client had no role to play so far as the raid which was carried out by the ACB officials is concerned. Mr. Bhatt submitted that it was at least expected of the respondent No.2 to have issued a show cause notice with a view to give his client an opportunity of hearing before passing the impugned order. In Page 3 of 23 HC-NIC Page 3 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER such circumstances referred to above, he prays that the impugned order deserves to be quashed.
5. On the other hand this writ-application has been vehemently opposed by Mr. Sharma, the learned AGP appearing for the respondents. The learned AGP submitted that the impugned order is not stigmatic and the services of the petitioner came to be terminated in accordance with the Policy of the State Government, as provided in the Government Resolution dated 20th October, 2015. He has placed reliance on the following averments made in the affidavit-in-reply duly affirmed by the Additional Resident Deputy Collector, Ahmedabad:-
"4. I say and submit that none of the fundamental legal right of the petitioner has been violated because of any action or inaction on the part of the present respondent and therefore, the present petition is not maintainable in law and the same deserves to be dismissed in limine.
5. I say and submit that by way of present petition the petitioner has challenged the order dated 19.2.2016 at Annexure -D to the petition at page 30 and 31.
6. I say that as far as the operative portion of the said order is concerned, it is simple to the extent of giving one month's notice and ending the service of the petitioner w.e.f. 19.2.2016. I say that the said action is governed by the condition of original appointment as well as the recent Government Resolution dated 20.10.2015 of the Finance Department, which in its clause 6 empowers such termination and hence, it cannot be said that the decision suffers from any illegality.
7. I say that the Additional Director of Anti Corruption Bureau, Gujarat State, by communication dated 19.12.2015 had proposed taking appropriate steps and considering the nature of service and service condition of the petitioner, it was thought fit to pass the order dated 19.2.2016 and therefore, it cannot be said that order is illegal or arbitrary."
6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that Page 4 of 23 HC-NIC Page 4 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER falls for my consideration is whether the impugned order passed by the District Collector, Ahmedabad is sustainable in law.
7. It is clear that the order of termination came to be passed not because the work of the petitioner was unsatisfactory, but because of the fact that a criminal prosecution has been instituted against her for the offence punishable under the Prevention of Corruption Act, 1988. This is evident from the contents of the impugned order itself. I need to examine whether the foundation for the termination was the misconduct by the petitioner in accepting or demanding the illegal gratification, punishable under Sections 7 and 13 of the Prevention of Corruption Act, 1988, or the same was just a motive for passing the impugned order of termination.
8. What is motive; what is foundation; what is the difference between the two; these are questions which are said to be still as baffling as they were when Krishna Iyer, J. in Samsher Singh Vs. State of Punjab, (1974) 2 SCC 831 = 1975 (1) SCR 814 = AIR 1974 SC 2192, observed as under:-
Again, could it be that if you summarily pack off a probationer, the order is judicially unscrutable and immune? If you conscientiously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils of law, however, harmlessly the order may be phrased. And so, this sphinx-complex has had to give way in later cases. In some cases the rule of guidance has been stated to be the substance of the matter and the foundation of the order. When does motive trespass into foundation? When do we lift the veil of form to touch the substance? When the Court says so. These Freudian frontiers obviously fail in the work-a -day world. (See, Chandraprakash Sahi v. State of U.P.)
9. In the case of Anopsinh Jathuba (Supra), the Division Bench of Page 5 of 23 HC-NIC Page 5 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER this Court observed as under:-
2. The learned Single Judge of our High Court, after considering the facts of the case and observing that the order of termination is not based upon the unfair practice adopted by the appellants herein, but termination simpliciter since they were probationers, dismissed the Special Civil Applications. According to the learned Judge, the unfair practices alleged against the appellants are not the foundation for the termination order, but that was the motive behind such an order passed. The learned Single Judge in deciding this aspect of the case relied upon the decision in Gout. Branch Press v. D. B. Bellappa reported in ATR 1979 SC 429 and the decision in State of U.P. v. Bhoop Singh reported in AIR 1979, SC 684. In AIR 1979 SC 429, the Supreme Court observed:
"If the services of a temporary Government servants are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for a" like reason which marks him off a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Article 16. Conversely, if the services of temporary Government servants are terminated arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment."
The Supreme Court in that decision finally held as follows :
"The termination of service was made arbitrarily and not on ground of unsuitability or other reason. It was further observed that it was perhaps open to the Government to say in view of the complaint alluded to in the show- cause notice against the integrity and fidelity of the employee, that the former had lost confidence in the latter and considered him unsuitable to be continued in the post which was one of trust and confidence. But when the Government instead of taking any such plea Page 6 of 23 HC-NIC Page 6 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER has, with obdurate persistency, stuck to the position that the employee's service has been terminated without any reason, it amounted to nearly admitting that the power reserved to the employer under the conditions of the employment, has been exercised arbitrarily."
10. In yet another decision reported in State of U.P. v. Bhoop Singh (AIR 1979 SC 684) which was referred to by the learned Single Judge the Supreme Court observed :
"It is apparent from the facts of this case that if the impugned order be considered as made in the light of the allegations against the respondent concerning the woman, the conduct of the respondent constituted a motive merely for making the order and was not the foundation of that order."
Thus in this decision, the Supreme Court differentiated between motive and the foundation for taking action in terminating the service of a probationer. The learned Single Judge found that the authorities concerned did not base their conclusion on the unfair practice adopted by the appellants in their examination. With that view, he dismissed both the Special Civil Applications filed by the appellants. We have carefully gone through the affidavit in . support of the main petition, the reply affidavit and the order of termination passed by the authorities concerned and other records. The order of termination of the appellant in L.P.A. No. 233 of 1985 reads as follows :
"You Mr. Anopsingh Jatuba as temporary unarmed recruit constable at present at Police Head Quarter's Service is not required by the department and as your appointment is solely on temporary basis, you are relieved from the service after office hours of today by paying one week notice pay as per Rule 33 of the B.G.S.R. Part 1."
The order of termination of the appellant in L.P.A. No. 234 of 1985 reads as follows :
"You Mr. Jymansingh Raiyabji as temporary unarmed recruit constable at present at Police Head Quarter's Service is not required by the department and as your appointment is solely on Page 7 of 23 HC-NIC Page 7 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER temporary basis, you are relieved from the service after office hours of today by paying one week notice pay as per; Rule 33 of the B.C.S.R., Part 1."
There is nothing in the termination order that such termination was made on the ground of unsuitability, unsatisfactory conduct or the like. If it is the question of misconduct, the authorities concerned ought to have followed the procedure set up under Article 311 (2) or otherwise, they will be condemning a person without being heard. If it is for the purpose of simply terminating the services of a probationer, the order should have stated that he is not suitable to be continued in service. In the absence of any of these adjectives for terminating the services of the appellants herein, we have to look into the affidavit-in-reply filed by the respondents herein. It is stated by the respondents in the affidavit filed by one Gupta, District Superintendent of Police, Jamnagar that the termination of services of the appellants has nothing to do with the act of copying at the examination in 'C' Division held at P.T.S., Baroda on 20-2-1984. The affidavit further states that, however, on going through the papers of enquiry received from the Principal, P.T.S., Baroda it is noticed that the appellants were outarred for the examination for the act of copying. It is in the affidavit filed on behalf of the respondents that the conduct of the appellants which is a gross misconduct cannot be tolerated in a disciplined force like Police. It further states that all the candidates were instructed and warned to refrain from malpractices in the examination or also the defaulting one would be sent back to their districts. In spite of that if a candidate indulges in copying, he has to blame himself for the consequences. The affidavit finally states that the services of the appellants were merely terminated so that they may not be debarred from service in any other Government Department. Reading these averments in this affidavit-in-reply, it is clear that the authorities concerned had the foundation for the termination only from the malpractice of copying made by the appellants herein. It is just to give them some opportunity to enter into some other service, these allegations were not mentioned in the termination order. This is clear from the last averment made by the respondents in the affidavit filed on their behalf by Mr. Gupta, the Deputy Superintendent of Police. In the decision in Anoop Jaiswal v. Government of India reported in AIR 1984, SC 636, the Supreme Court has observed as follows :
Page 8 of 23HC-NIC Page 8 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER "The form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article. 311 (2). Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order.
If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee."
The Supreme Court has further observed :
"If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for the incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground if the servant has not been afforded a reasonable opportunity to defend himself as provided in Article 311 (2) of the Constitution."
11. In the decision in Nepal Singh v. State of U.P. reported in AIR 1985, SC 84, the Supreme Court had an occasion to consider the termination order of the authority concerned in respect of a Sub-Inspector who was working in a temporary capacity. This temporary Sub-Inspector came in for criticism for contracting a second marriage without following Government Servants' Conduct Rules. The Superintendent of Police in this case had described this Sub-Inspector as a corrupt Officer who was not straight forward. While so, the Deputy Inspector General of Police, Bareilly Range, purporting to act under the Rules, passed an innocuous order simply stating that services of this Sub-Inspector were not required Page 9 of 23 HC-NIC Page 9 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER any more and as such his services were terminated with a month's pay in lieu of notice. This was questioned by way of a writ petition by the concerned Sub-Inspector before the High Court and a single Judge of the High Court dismissed the writ petition. On appeal, the Division Bench concurred with the single Judge and dismissed the appeal. On appeal to the Supreme Court, the Supreme Court observed :
"It is well settled that in dealing with a Government servant the State must conform to the constitutional requirements of Articles 14 and 16 of the Constitution. An arbitrary exercise of power by the State violates those constitutional guarantees, for a fundamental implication in the guarantee of equality and of protection against discrimination is that fair and just treatment will be accorded to all, whether individually or jointly as a class. When a Government servant satisfies the Court prima facie that an order terminating his services violates Articles 14 and 16, the competent authority must discharge the burden of showing that the power to terminate the services was exercised honestly and in good faith, on valid considerations, fairly and without discrimination."
In that case instead of taking proceedings for the misconduct, the Deputy Inspector General of Police, by an innocuous order, simply terminated the services of the Sub-Inspector, after dropping the enquiry against him. In that connection, the Supreme Court observed:
"We may observe that where allegations of misconduct are levelled against a Government servant, and it is a case where the provisions of Article 311 (2) of the Constitution should be applied, it is not open to the competent authority to take the view that holding the enquiry contemplated by that clause would be a bother or a nuisance and that therefore it is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order. The Court will view with great disfavour any attempt to circumvent the constitutional provision of Article 311 (2) in a case where that provision comes into play."
With the above said observation, the Supreme Court set aside the judgment of the High Court and allowed the Page 10 of 23 HC-NIC Page 10 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER appeal by quashing the impugned order of termination. Applying the principles laid down in the abovesaid Supreme Court decisions, it is clear that the respondents terminated the services of the appellants not because their work is not satisfactory, but because of the fact they have indulged in unfair practice of copying. This is very clear from the affidavit-in-reply filed by one Gupta on behalf of the respondents. Further, the authority concerned, while terminating the services, had the report of the Principal, P.T.S., Baroda which states that the appellants were not permitted to write the examination for their act of copying. When especially these facts have been taken into consideration and when, as a matter of fact, the affidavit-in-reply clearly states that the appellants' services were merely terminated so that they may hot be debarred from service in any other Government Department, it amply establishes the foundation for the termination is the malpractice adopted by the appellants herein. If that be so, the orders . of termination, without affording any opportunity to the appellants must fair. The simple order of termination as if the petitioners are only probationers is merely a camouflage for an order of dismissal for misconduct and as such the same cannot be upheld in as much as the appellants never had an opportunity to meet such allegations levelled against them. Article 311 (2) has been clearly violated in this case.
3. The learned singe Judge committed a mistake in observing that the appellants cannot succeed by creating a dilemma, i.e. if the respondents alleged any charges against the appellants, the same will be hit by Article 311 (2) and if no charges are levelled against the appellants, the termination will be hit by discrimination offending Article 14 of the Constitution. We are not concerned with regard to the difficult situation the respondents have been put in terminating the services, pf the appellants. We are more concerned as to whether the foundation for the termination is the malpractice indulged in by the appellants in copying at the examination hall. As we have seen from the facts of the case and the allegation in the affidavit-in-reply, the respondents terminated the services of the appellants only for the malpractices and they did not mention the same in order to give an opportunity to the appellants to seek some other Government employment without any stigma attached to them.
Page 11 of 23HC-NIC Page 11 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER
4. The other point as regards violation of Article 14 will not arise in as much as we have found that the order of termination has to fail since the procedure laid down under Article 311 (2) has not been followed on the facts and circumstances of the present case.
12. In the case of Anoop Jaiswal (Supra), the Supreme Court observed in paragraph Nos. 11 and 12 as under:-
11. On behalf of the Union of India reliance has been placed on State of Punjab v. Sukh Rai Bahadur (1968) 3 SCR 234 : (AIR 1968 SC 1089). Union of India v. R. S. Dhaba (1969) 3 SCC 603, State of Bihar v. Shiva Bhikshuk Misra (1971) 2 SCR 191 : (AIR 1971 SC 1011), R. S. Sial v. State of U. P. (1974) 3 SCR 754:
(AIR 1974 SC 1317), State of U. P. v. Ram Chandra Trivedi (1977) 1 SCR 462: (AIR 1976 SC 2547) and I. N. Saksena v. State of Madhya Pradesh (1967) 2 SCR 496 : (AIR 1967 SC 1264). We have gone through these decisions. Except the case of Ram Chandra Trivedi (supra) all other cases referred to above were decided prior to the decision in Samsher Singh's case (AIR 1974 SC 2192) (supra) which is a judgment delivered by a Bench of seven Judges. As pointed out by us in all these cases including the caw of Ram Chandra Trivedi (supra) the principle applied is the one enunciated by Parshotam Lal Dhingra's case (AIR 1958 SC 36) (supra) which we have referred to earlier. It is urged relying upon the observation in Shri Sukh Rai Bahadur's case (supra) that it is only when there is a full scale departmental enquiry envisaged by Article 311 (2) of the Constitution i.e. an enquiry officer is appointed, a charge-sheet submitted. explanation called for and considered, any termination made thereafter will attract the operation of Art. 311 (2). It is significant that in the very same decision it, is stated that the circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.As observed by Ray, C. J. in Samsher Singh's case (supra) the form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish Page 12 of 23 HC-NIC Page 12 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Art. 311 (2)
12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.
13. In the case of Dinaben (Supra), a learned Single Judge of this Court observed in paragraph Nos. 13, 14, 15, 16 and 17 as under:-
"13. The main anxiety of the Court should be to find out as to what was the basis and foundation of the termination order. Was it a camouflage or whether the respondent-employer resorted to a short-circuit by passing an order of termination simplicitor though there were serious allegations of misconduct against the petitioner? Simply because the person is working temporarily, his services cannot be terminated unceremoniously by resorting to short-circuit of passing the simple termination order though the management is permitted and aided the alleged misconduct or misbehaviour or malpractices on the part of the employees concerned. At times, the employees may be tempted to take such a short route so that without undergoing the exercise of holding enquiry and by-passing the provisions of Art. 311(2), the employee could be sent back home. Such a tactics, strategy or manipulation can never be allowed, and can never be encouraged, when the matter is tested on judicial scrutiny.
14. In fact, the relationship of master and servant commands and demands higher degree of faith, trust and obligation. Even in case of a probationer, or even in case of any ad-hoc appointee for a stipulated period, termination under the guise of simple termination order though on account of misconduct and misdemeanour without holding inquiry under Art.
Page 13 of 23HC-NIC Page 13 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER 311(2) of the Constitution is illegal and impermissible. Any person who is likely to be visited with civil or evil consequences must be heard. If the Court finds that a Government employee is unceremoniously terminated on account of misconduct or misdemeanour under the guise of termination simplicitor, then in that case, it becomes obligatory for the Court to quash the order of termination of service. In fact, the Highest Court of the land has observed in case of Dr. Miss Sumati P. Cere v. Union of India, reported in AIR 1989 SC 1431 that before the termination of an ad-hoc employee, communication in advance about the defect, deficiency, indifference or indiscretion should be given. It would be interesting to reproduce the relevant portion of the judgment.
We must emphasize that in the relationship of master and servant, there is a moral obligation to act fairly. An informal, if not formal, give-and-take, on the assessmentof work of the employee should be there. The employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies, indifference or indiscretion may be with the employee by in-advertance and not by in capacity to work. Timely communication of the assessment of work in such cases may put them on the right track. Without any such communication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability.
15. In the present case, the petitioner was not communicated any such defect or deficiency or any action amounting to unsuitability. The petitioner worked with the respondent-Corporation right from 8- 3-1989 till 30-11-1989 (for a period of more than seven months). No any such communication was ever given about the lapses alleged to have been made or deficiencies levelled against her in the affidavit-in- reply. Of course, in affidavit-in-reply, it was stated that some memos were given to the petitioner. However, when specifically this question was put to the learned Advocate for the respondent-Corporation, he fairly stated that the relevant files does not contain such memos or copies thereof. In fact, it is found from the facts of this case that no such memos or intimation were ever given to the petitioner. Therefore, the contention that the termination of service is vitiated is full of substance.
Page 14 of 23HC-NIC Page 14 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER
16. Learned Advocate for the respondent-Corporation vehemently contended that the petitioner is not entitled to the equitable relief as she has refused to work and she is unsuitable for the work in question for the said post. This contention cannot be entertained or accepted in the facts of this present case. One cannot remain indifferent to the case law as aforesaid. The moment the Court finds that the order of termination simplicitor in reality was punitive and stigmatic, the order is required to be quashed and set aside as it would be in violation of the provisions of Art. 311(2) of the Constitution.
17. Next the question will arise as to what appropriate relief the petitioner is found entitled to. Since this Court finds that the impugned order of termination is illegal, the petitioner would be entitled to be reinstated with full back wages. The termination of the petitioners services is found to be illegal and, therefore, the termination order is required to be quashed.
14. In the case in hand, it is not in dispute that on the date the impugned order of termination was passed, the criminal prosecution had already been instituted in the form of an FIR and the investigation in that regard is going on. It appears that the co- accused is still in custody. As it came to the notice of the Department, the decision was taken to discontinue the petitioner from service. The only thing which has been stated in the impugned order is about the registration of the FIR and relying on the same, it has been observed that the services of the petitioner were required to be terminated by issuing one month's notice. It is equally true that no inquiry was initiated by the Authority in that regard. As to in what circumstances the order of termination of an employee appointed on fixed salary in accordance with the Policy of the State Government can be said to be punitive or not, is dependent upon whether certain allegations which are the cause of the termination, are the motive or foundation. If the findings were arrived at an inquiry as to the misconduct behind the back of the employee, or without a regular Page 15 of 23 HC-NIC Page 15 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER Departmental inquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad. But if the inquiry was not held, no findings were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom a First Information Report was registered, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because the Police was already ceased of the matter. In such circumstances, the termination would be a motive and not the foundation and the simple order of termination would be valid.
15. In State of U.P. Vs. K.M. Prem Lata Misra, reported in AIR 1994 SC 2411, the Supreme Court in paragraph 6 observed thus:
6. This court, consider the entire case law elaborately and had held that the termination is in terms of the order of appointment and that therefore, it is not by way of punishment as a punitive measure. Accordingly the need to conduct an inquiry into the alleged misconduct does not arise and the termination of service in terms of the contract was held to be valid.It is settled law that the court can lift the veil of the innocuous order to find whether it is the foundation or motive to pass the offending order. If misconduct is the foundation to pass the order then an enquiry into misconduct should be conducted and an action according to law should follow. But if it is (sic) motive, it is not incumbent upon the competent officer to have the enquiry conducted and the service of a temporary employee could be terminated, in terms of the order of appointment or rules giving one month's notice or pay salary in lieu thereof. Even if an enquiry was initiated, it could be dropped midway and action could be taken in terms of the rules or order of appointment. The same principle applies to the facts in this case. It is seen that the respondent was appointed by direct recruitment by selection committee constituted by the Government in this behalf and on finding about the suitability to the post as an Asstt. Project Officer, the respondent was appointed and was posted to the place where she had joined. Thereafter, her work was supervised by the higher officers and two officers have submitted their reports Page 16 of 23 HC-NIC Page 16 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER concerning the performance of the duties by the respondent.
She was regularly irregular in her duties, insubordination and left the office during office hours without permission etc. On consideration thereof, the competent authority found that the respondent is not fit to be continued in service as her work and conduct were unsatisfactory under these circumstances the termination is for her unsuitability or unfitness but not by way of punishment as a punitive measure and one in terms of the order of appointment and also the Rules. Accordingly, the High Court has gone against settled law in allowing the writ petition."
16. In such circumstances referred to above, I am unable to accept the argument of Mr. Bhatt, the learned counsel appearing for the petitioner that his client could not have been terminated from service without a regular Departmental inquiry.
17. However, one question still needs to be addressed and that is whether any opportunity of hearing should have been given to the petitioner or not.
18. It is true that according to the Government Resolution referred to above and the conditions of service of an employee appointed on fixed salary for a period of five years, an order of termination can be passed with issue of one month's notice. Although the applicability of the principle of natural justice may not be there in so many words, yet I am of the view that at least one opportunity of hearing should have been given to the petitioner in the facts of the case. It appears that the petitioner preferred a detailed representation dated 25.2.2016, addressed to the Collector, Ahmedabad for review of the order dated 19.2.2016. It also appears that she has filed a detailed representation dated 25.2.2016 addressed to the Secretary, Revenue Department, Gandhinagar, for review of the impugned order dated 19.2.2016.
Page 17 of 23HC-NIC Page 17 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER
19. In the recent exposition, or if one may say so, the extension of the law in this field, it has been held in S. L. Kapoor's case (AIR 1981 SC 136)(supra), that the weightier consideration for invoking the principles of natural justice was whether civil consequences ensue or not. In essence, therefore, the question is what is the precise legal connotation of the "civil consequence", which would inexorably attract the rules of natural justice like a magnetic filed. Is it any and every civil consequence flowing from an administrative action which inflexibly mandates to the person before passing any order? Or, Is it necessarily some penal, evil or stigmatic civil consequence which alone would attract the rules of natural justice? The core question therefore is whether the words "civil consequence" are to be interpreted so broadly as to include within the ken any consequence whatsoever flowing from administrative action or is this concept to be controlled by its necessary contextual limitation.
20. The words "civil consequence" have not been defined and perhaps do not admit of definition stricto sensu. However, in their larger connotation, these are words of the widest amplitude which can bring within their ambit every conceivable consequence. This has indeed been authoritatively noticed as follows by V. R. Krishna Iyer, J., in Mohinder Singh Gill's case (AIR 1978 SC 851 at p. 876)(supra) :--
21. Broadly speaking and without pretending to be exhaustive, governmental action may be divisible into undermentioned categories for examining the applicability of the rule of audi alteram partem.
1. Criminal;
2. Civil;
(i) Judicial;
(ii) Quasi-judicial;
(iii) Administrative.
22. Now there is no manner of doubt that so far as criminal process Page 18 of 23 HC-NIC Page 18 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER is concerned, the principles of natural justice have by now assumed a strict statutory form. In our judicial system, one cannot now visualise a criminal process wherein the parties concerned would not have a full right of hearing. The procedural statutes, in this context take care of the matter and provide a more elaborate and mandatory process ensuring the fullest opportunity of hearing before the criminal process can be finalized. Consequently, it may be said that herein the rules of natural justice have become embodied rules in the shape of mandatory statute.
23. The same situation ensures in the civil judicial process. In the purely judicial field, the Civil Procedure Code and similar sister provisions provide the fullest right of hearing, thus enshrining the brooding spirit of natural justice in a strict statutory form.
24. As regards the civil quasi-judicial process also, now the binding precedents of the final Court leave hardly any manner of doubt that the principles of natural justice are inflexibly attracted where the proceedings though not strictly judicial, at least partake of that character and can be conveniently labelled as quasi-judicial. It may be said that (barring very few exceptions) in all quasi-judicial actions if rules themselves do not provide for a hearing or a reasonable opportunity, the Courts will read such a necessary into the relevant provisions. Herein, natural justice can perhaps be ousted only by an express statutory provision to this effect and not otherwise.
25. The slightly penumbral area that remains is that of administrative action. It is undoubtedly true that any sharp distinction between the quasi-judicial and the administrative action has now been eroded, if not obliterated altogether. Nevertheless, for the purposes of attracting the principles of natural justice that distinction is of some relevance though not in any way conclusive. It can no longer be said that because the action is administrative in nature, the Page 19 of 23 HC-NIC Page 19 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER rules of natural justice are either excluded or there is any presumption to this effect. Far from it being so, natural justice may be equally attracted though the exercise of power is essentially administration in nature. However, the pristine question that here arises is whether the expanding concept of natural justice now pervades every field and niche of administrative action? Most it now be said that all executive actions must first satisfy the test of the rule of audi alteram partem before it can be of any validity? I am inclined to believe that a final Court has set its face against any such doctrinaire extension. Indeed extending the somewhat tardy procedure of an opportunity to show cause and adjudication thereon to each and every sphere of administrative action cannot but have the effect of hamstringing executive power and is fraught with the danger of rendering it impotent and negating its effective exercise. It is no doubt true that the horizons of natural justice have been widened and continue to expand and it is rightly so in a society where the rule of law prevails. But to extend them to each and every facet of administrative action thus in terms equating it with the judicial process might well work public mischief and it has been so said at the level of the highest judicial authority.
26. Either some bias or prejudice on the part of the authority or the ultimate effect of the administrative action being evil, penal or stigmatic in nature are the necessary foundations which would cry out for an opportunity of being heard to the person to whom such an adverse administrative action is meted out. If there is no touch of bias or unfairness and no evil, penal or stigmatic consequences flow, and it does not violate any inflexible legal right then such an administrative action would not per se attract the principles of natural justice. Holding otherwise to the effect that any and every civil consequence of administrative action attracts the rule of natural justice would render the whole exercise of laying down the tests for their necessary application, a pure exercise in futility, because on Page 20 of 23 HC-NIC Page 20 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER such premise every action, be it purely criminal, judicial, quasi- judicial or administrative would ipso facto invite the rule of audi alteram partem.
27. Now apart from the above, examples can be multiplied ad infinitum which undoubtedly involve civil consequence but admittedly would not attract the principles of natural justice. The law in this branch is now so well-settled that reference to individual precedent is uncalled for. The foremost amongst them has already been noticed in the context of a compulsory retirement which undoubtedly has adverse consequences to the public servant who is compelled to demit office sometimes a decade before the prescribed age of superannuation. Similarly the abolition of a lucrative and prestigious post which a person may be holding even permanently would undoubtedly involve the most serious consequences to its holder yet it is well settled that herein also the rules of natural justice are not attracted and no opportunity to show cause need be given. Similarly the termination of the services of a temporary employee whilst others similarly situated are retained would undoubtedly entail most serious civil consequences for the person whose services are so terminated and who is thus thrown into the vast pool of unemployment within this country. Nevertheless the final Court has repeatedly held that such a termination does not call in the principles of natural justice and the temporary employee has no right of hearing against such administrative action. Similar, if not more stringent, is the case of a probationer who has the most legitimate expectation of acquiring a permanent right to a post. However, when the services of such a probationer are terminated on the ground of unsuitability it is equally well established that no opportunity need be given to him on the basis of natural justice. Though on the first flush and on a superficial reading the arguments that every civil consequence entails Page 21 of 23 HC-NIC Page 21 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER necessarily to show cause may appear to be utopianly attractive yet a deeper analysis thereof would show that no such blanket rule emerges from precedent. Indeed the final Court has itself given the phrase 'civil consequences a somewhat limited and constricted meaning.
28. In the overall analysis of the entire matter, I am of the view that even if no inquiry as contemplated under the departmental rules for terminating the services of the petitioner is required, atleast an opportunity of explaining the circumstances existing against her and consideration of the same is the minimum requirement of law which should have been fulfilled before terminating the services of the petitioner. The action taken for terminating the services even without asking for an explanation and giving an opportunity to explain the circumstances existing against the petitioner, in the opinion of this Court, is unsustainable and in clear violation of the principles of natural justice.
29. Although the principles for conducting the departmental inquiry and the procedure to be followed for terminating the services of the petitioner cannot be made applicable in the present case, yet the fact that the petitioner has put in five years of service, although on a fixed pay, is being terminated, the same will have civil consequences and, therefore, the minimum requirement of issuing a show-cause notice and giving opportunity of hearing to submit the explanation is required to be fulfilled in such case.
30. In such circumstances referred to above, the impugned order passed by the respondent No.2 dated 19th February, 2016 is quashed with a direction to the respondent No.2, the Collector, Ahmedabad to afford an opportunity of hearing to the petitioner and thereafter pass Page 22 of 23 HC-NIC Page 22 of 23 Created On Tue Mar 22 00:50:24 IST 2016 C/SCA/3508/2016 ORDER a fresh order in accordance with law. Let this exercise be undertaken at the earliest. A particular date shall be fixed and informed in writing about the same to the petitioner and on that date, the Collector, Ahmedabad shall hear the petitioner and thereafter pass a fresh order.
31. I clarify that although the impugned order has been quashed, yet there shall not be any reinstatement in service, having regard to the peculiar facts of this case.
With the above, this writ-application is disposed of.
(J.B.PARDIWALA, J.) Mohandas Page 23 of 23 HC-NIC Page 23 of 23 Created On Tue Mar 22 00:50:24 IST 2016