Gujarat High Court
Sushman Rameshchand Sharma vs Hemchandracharya North Gujaart ... on 8 October, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/LPA/1244/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1244 of 2014
In SPECIAL CIVIL APPLICATION NO. 13924 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI Sd/-
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
SUSHMAN RAMESHCHAND SHARMA
Versus
HEMCHANDRACHARYA NORTH GUJAART UNVIVERSITY
==========================================================
Appearance:
MR NK MAJMUDAR(430) for the PETITIONER(s) No. 1
MR SIDDHARTH H DAVE(5306) for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 2,3
==========================================================
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 08/10/2018
CAV JUDGMENT
Page 1 of 19
C/LPA/1244/2014 CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA)
1. The present appeal is directed against the judgment and order dated 13.10.2014, passed in Special Civil Application No.13924 of 2014 by the learned Single Judge, whereby the writ petition preferred by the appellant challenging his termination has been rejected.
2. The brief facts leading to filling of the present appeal are as under: 2.1 The appellant was appointed as an Assistant Professor on 12.10.2011 for a period of two years probation after undergoing the regular selection procedure.
2.2 On 30.08.2013, the appellant was served with a communication calling upon him to fill up the inquiry report annexed with the same before 02.09.2013.
2.3 The appellant by the letter dated 04.09.2013, tendered his reply to the aforesaid communication dated 30.08.2018.
2.4 Thereafter, by the impugned order dated 10.09.2013, the respondentUniversity terminated the services of the appellant. It is the case of the appellant that the action of the respondent authorities terminating his services on the basis of the resolution passed by the respondent University being Resolution No.46 is stigmatic in nature and the same is passed without holding a regular departmental inquiry.
Page 2 of 19 C/LPA/1244/2014 CAV JUDGMENT2.5 Being aggrieved by the said order, the appellant filed the captioned writ petition, which was dismissed by the learned Single Judge.
3. Mr.Majmudar, learned advocate for the appellant has submitted that the judgment and order of the learned Single Judge is erroneous since the vital aspect i.e. the foundation of the termination order is not appreciated in true perspective. He has submitted that the termination of the appellant is stigmatic in nature since the respondentUniversity has placed reliance upon the resolution dated 10.09.2013, which spells out the reasons of termination. He has submitted that all the reasons as stated in the resolution are stigmatic in nature.
4. Learned advocate for the appellant has submitted that the termination of the appellant is in breach of Regulation 67(1) read with provision of Regulation 4(b) of Ordinance 147(4) and 144(3). He has submitted that as per the said provisions an employee cannot be dismissed on the ground of misconduct without issuance of charge sheet or without holding a regular department inquiry.
5. Learned advocate for the appellant has also submitted that no documents were provided to the appellant and the report relied upon by the committee was also not supplied to the appellant.
Page 3 of 19 C/LPA/1244/2014 CAV JUDGMENTThus, he has submitted that the order dated 10.09.2013 is not simpliciter order of non confirmation of the probation, but the same is punitive in nature which casts stigma on the appellant and hence, the same deserves to be quashed and set aside.
6. Learned advocate for the appellant has submitted that the respondent authorities had terminated the services of the appellant as a retaliatory measure since he had filed the writ petition being Special Civil Application No.11 of 2013 against the respondentUniversity.
7. In support of his submissions, Mr.Majmudar, learned advocate for the appellant has placed reliance on the decision of the Apex Court in the case of State Bank of India & Ors. Vs. Palak Modi and Another, (2013) 3 S.C.C. 607 and in the case of Ratnesh Kumar Choudhary Vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Ors., AIR 2016 S.C 467.
8. Per Contra, Mr.Hriday Buch, learned advocate for the respondent authorities has placed reliance on the affidavit filed by the University and has submitted that the termination of the appellant is justified since the reply dated 04.09.2013 written by the present appellant to the respondentUniversity in response to the communications dated 30.08.2019 and 02.09.2013 reflects that the appellant has threatened the Page 4 of 19 C/LPA/1244/2014 CAV JUDGMENT Chancellor, the Vice Chancellor and the Incharge Registrar of committing suicide, if any action is taken against him pursuant to the inquiry held against him.
8.1 Mr.Buch, learned advocate for the respondent authorities has submitted that in the present case, it cannot be said that the termination of the appellant is in violation of principles of natural justice since the appellant was called upon vide communication dated 30.08.2013 to fill up the questionnaire / inquiry report annexed with the application, which comprises of 21 questions. He has also submitted that since it was found that the experience certificate of the appellant was found to be forged / fake, the University thought it fit to terminate his service.
8.2 Learned advocate for the respondent authorities has also submitted that since the adverse remarks were communicated in the confidential report of the appellant, it can be said that services of the appellant were unsatisfactory. It was decided by the University to terminate the services of the appellant. Thus, he has submitted that the respondentUniversity has justified by terminating the services of the appellant and it was not desired to hold regular department inquiry against the appellant.
8.3 In support of his submissions, the learned Page 5 of 19 C/LPA/1244/2014 CAV JUDGMENT advocate for the respondent authorities has placed reliance on the decisions of the Apex Court in the case of Municipal Committee, Sirsa Vs. Munshi Ram, (2005) 2 S.C.C. 382 and in the case of State of Punjab and Ors. Vs. Rajesh Kumar, (2006) 12 S.C.C. 418. In this view of the matter, he has urged that the present appeal deserves to be rejected.
9. In response to the aforesaid submissions, the learned advocate for the appellant has placed reliance on the judgment of the Apex Court in the case of Sukhdev Singh Vs. Union of India, 2013 (9) S.C.C. 566 for the proposition of law that any adverse entry or any entry in the confidential report whether it is pure, fair, average, good, very good etc. is required to be communicated to the public servants and since no entry was communicated to the appellant, the same cannot be relied upon by the respondent University for terminating his service.
10. We have heard the learned advocates for the respective parties to the lis.
11. By an order No.180/2013, dated 10.09.2013, the respondentUniversity, pursuant to the resolution passed by the Executive Committee; terminated the appellant from service. Resolution no.46 specifies the record/documents which were considered before terminating the service. The same are listed as under:
Page 6 of 19 C/LPA/1244/2014 CAV JUDGMENTi) The confidential reports written by - a) Dr.Ashwin G Modi, b) Dr.Nimish H Bhatt, and
c) Dr.Vipin Soni;
ii) The report of the committee constituted vide Letter dated 06.09.2013;
iii) The experience certificate produced by the -
appellantpetitioner (Dr.Sushman Sharma) of AhwaDang Hospital, and the communication dated 30.08.2009 sent by the Superintendent from the AhwaDang Hospital;
iv) The letters written by the appellant giving threat to the Chancellor, ViceChancellor and I/c Registrar.
12. After referring to the aforesaid documents, it is observed that the probation period of the appellant does not seem to be satisfactory, the experience certificate issued dated 30.09.2009 is found to be forged, and the inquiry report given by the committee does not seem to be in his favour. It was also decided to lodge a criminal complaint against the appellant.
13. Thus, the foundation of the termination of the appellant is based upon - (1) adverse confidential reports; (2) forged experience certificate; and (3) unfavorable inquiry report. For verifying the correct aspects in the matter, this court had called for the original record. We Page 7 of 19 C/LPA/1244/2014 CAV JUDGMENT shall refer to the same in progression.
(A) As regards the confidential reports are concerned, for the period from 13.10.2011 to 16.07.2012 (written by Dr.Ashwin Modi) and for the period from 17082012 to 06042013 (by Dr. Nishith Bhatt, the appellant is found to be 'average'. The general assessment or personality, character and temperament are stated as "over ambitious and short temperament". Assessment of integrity is termed as "doubtful". The entries of both the confidential reports, though are written by separate authorities, are identically worded.
(B) As regards for the period from 17.04.2013 to 18.07.2013(by Dr.Vipin K Soni), the appraisal is negative. The general assessment recorded is 'very bad', 'very angry', and 'average','short temper' and 'using foul language in front of students even girls'. In column no.8, it is mentioned "Only destructive & divide everybody create big problem in future to smooth running of organization'.
14. Thus, the entries in the confidential reports can be termed as stigmatic. Such entries could not have been considered since the same are narrative in nature casting personal aspersions on the character of the appellant. It is pertinent to note that the appellant had complained against Dr. Vipin Soni and the inquiry was conducted for the incident of scuffle between Page 8 of 19 C/LPA/1244/2014 CAV JUDGMENT him and Dr. Soni. The confidential report of the appellant was written by Dr. Soni on 01.09.2013 after the incident which had occurred in 2nd July, 2013. Thus, it can be safely presumed that afore noted entries in the confidential reports were made with prejudice in order to see that the same affects the service tenure of the appellant.
(A) Apropos, the allegation on the appellant of producing the fake/forged experience certificate of AhwaDang hospital, the then Superintendent of the said hospital, Dr.Rajnandan Kumar vide his communication dated 18.12.2013, has informed the University that the appellant was terminated from service for misconduct after 7 months of his service, and no experience certificate was issued to him and the same was forged and fake. Neither the communication dated 18.12.2013, is supplied to the appellant nor Dr.Rajnandan Kumar is examined in the preliminary inquiry.
(B) As regards the inquiry report dated 06.09.2013 is concerned, this Court has examined the same. A perusal of the report reveals that the same is preliminary in nature. The statements of the appellant, Dr.Vipin Soni and other employees were recorded by the committee regarding the incident of scuffle which had occurred between them. The statement of the appellant reveals that he had stated that Dr.Soni had instigated him and hence the incident had occurred. It is also observed that on inquiring Page 9 of 19 C/LPA/1244/2014 CAV JUDGMENT from the department and other employees it was recorded that the conduct of the appellant was not good and he was a disruptive and tenacious person. No names of the employees are mentioned in the report. The factum of approaching the High Court by the appellant against the alleged recruitment is also considered adversely. It is also recorded that the experience certificate produced by the appellant is found to be forged. Finally, the inquiring authority has recommended taking strict action against the appellant for the misconduct. Thus, the inquiry report reveals the bias and prejudicial attitude of the inquiry officer towards the appellant. The inquiry officer has proceeded with a predetermined mindset of holding the appellant guilty of misconduct.
(C) As regards the item no.4 of the Resolution dated 10092013 concerning the letter in the form of email dated 05092013 written by the appellant to the Chancellor, ViceChancellor and the Registrar is concerned, this Court finds that the appellant has made grievance against the initiation of the inquiry against him. At the end of the letter the appellant has stated thus:
"so honourable VC.Dr.Hemixaben Rao knows very well she can harm me due to my probation & she has started by asking irrelevant questions with the lable of "Inquiry Report" when I asked for more time Page 10 of 19 C/LPA/1244/2014 CAV JUDGMENT to give appropriate answers the university authorities then also did not cooperate".....
"And do the needful & urgent intervention or required Inquiry in my serious case otherwise if honourable VC Dr.Hemixaben Rao, PVC Dr.Nidat Barot & I/c Registrar Dr.D.M.Patel will harm my professional or personal career in any form like termination/suspension or whosoever people are related to my this mention case will be fully responsible for my suicide."
15. Thus, from the aforesaid letter, it appears that the appellant had sought time to give appropriate answer to the questionnaire of the inquiry report but the same was declined.
(A) Before terminating the service of the appellant, he was issued a communication dated 30.08.2013 calling upon him to fill up the Inquiry Report and send the same before 14:00 hours on 02.09.2013. The said report contained 21 questionnaire regarding the past service, experience, criminal complaints, criminal offences, complain by Dr.Vipin Soni etc. The appellant submitted a detailed reply on 04.09.2013. We find that in the initial statements of his reply, the appellant has asked to furnish the rules, regulations or any ordinance or statute which prescribes the Page 11 of 19 C/LPA/1244/2014 CAV JUDGMENT performa of the inquiry report which was asked to fill in. Thereafter, it is noticed that the appellant at various places has reiterated his threat to commit suicide. Finally, the appellant in his reply dated 04.09.2013 responded to all the allegations/questionnaires (see pg.128 to
141) for which he was called upon. The appellant has also asked to give an opportunity to rebut the evidence against him.
16. The upshot of the aforesaid observations is that the inquiry report, which is preliminary in nature, is relied upon by the University for terminating the service of the appellant. The inquiry has been conducted for the alleged misconduct as mentioned in the Resolution dated 10.09.2013. After a close scrutiny the inquiry report is found to be tainted with bias and prejudice. Furthermore, the same is not supplied to the appellant. The confidential report filled in by Dr.Soni also does not inspire confidence since the manner and method of the entries made therein appears to be filled in with a prejudicial mind. Thus, in the considered opinion of this Court, it was imperative to hold a regular departmental inquiry after the preliminary inquiry under the rules/regulations/ordinance after issuing a chargesheet against the present appellant and after recording the statements of the concerned witnesses as well as the present appellant.
Page 12 of 19 C/LPA/1244/2014 CAV JUDGMENT17. At this stage, it would be opposite to refer to the observations made by the Apex Court in the case of Ratnesh Kumar Choudhary (supra). The Apex Court after survey of the judgments on the issue has observed thus:
"27. In the facts of the case, the Court proceeded to state that there is a marked distinction between the concepts of satisfactory completion of probation and successful passing of the training/test held during or at the end of the period of probation, which are sine qua non for confirmation of a probationer and the Banks right to punish a probationer for any defined misconduct, misbehaviour or misdemeanour. In a given case, the competent authority may, while deciding the issue of suitability of the probationer to be confirmed, ignore the act(s) of misconduct and terminate his service without casting any aspersion or stigma which may adversely affect his future prospects but, if the misconduct/misdemeanour constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a non stigmatic order, the Court can lift the veil and declare that in the garb of termination simpliciter, the employer has Page 13 of 19 C/LPA/1244/2014 CAV JUDGMENT punished the employee for an act of misconduct."
18. We have perused the affidavit filed by present respondentUniversity. The Paragraph No.5 of the affidavit dated 09.01.2014 is reproduced herein below:
"5. With reference to the contentions raised in Para 2 of the application, the contents are not properly stated, the same are not admitted and are not binding to the opponents. It is submitted that the applicant's services were terminated on account of his misconduct. This was in response to the letter written by the University authorities on 30.08.2013 to Office Superintendent, General Hospital, Ahwa, Dangs, who has replied vide letter dated 30.08.2013. And the letter received from Dr.Rajnandankumar, ExOffice Superintendent, General Hospital, Ahwa, Danga. Thus, the applicant is habitual in his misconduct. And the applicant also suppressed facts while he applied for the same post.
19. The Apex Court in the case of Ratnesh Kumar (Supra) has observed thus:
"The stand taken in the counter affidavit indicates about the Page 14 of 19 C/LPA/1244/2014 CAV JUDGMENT behaviour of the appellant. It is also noticeable that the authorities after issuing the notice to show cause and obtaining a reply from the delinquent employee did not supply the documents. Be that as it may, no regular enquiry was held and he was visited with the punishment of dismissal. It is well settled in law, if an ex parte enquiry is held behind the back of the delinquent employee and there are stigmatic remarks that would constitute foundation and not the motive. Therefore, when the enquiry commenced and thereafter without framing of charges or without holding an enquiry the delinquent employee was dismissed, definitely, there is clear violation of principles of natural justice. It cannot be equated with a situation of dropping of the disciplinary proceedings and passing an order of termination simpliciter. In that event it would have been motive and could not have travelled to the realm of the foundation. We may hasten to add that had the appellant would have been visited with minor punishment, the matter possibly would have been totally Page 15 of 19 C/LPA/1244/2014 CAV JUDGMENT different. That is not the case. It is also not the case that he was terminated solely on the ground of earlier punishment. In fact, he continued in service thereafter. As the report would reflect that there are many an allegation subsequent to the imposition of punishment relating to his conduct, misbehaviour and disobedience. The Vigilance Department, in fact, had conducted an enquiry behind the back of the appellant. The stigma has been cast in view of the report received by the Central Vigilance Commission which was ex parte and when that was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter affidavit. Thus, by no stretch of imagination it can be Page 16 of 19 C/LPA/1244/2014 CAV JUDGMENT accepted that it is termination simpliciter. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist. Had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench.
20. In the present case also, the counter affidavit filed by the respondentUniversity signifies the foundation of the termination order. The affidavit specifically refers that the appellant's services were terminated on account of misconduct of and the appellant is habitual in his misconduct. Thus, the respondentUniversity had the motive to terminate the appellant from the service based upon the alleged misconduct.
21. In the considered opinion of this court, the law articulated by the Supreme Court in the case of Ratnesh Kumar (supra) will envelop the facts of the present case. The decisions relied upon by the learned advocate Mr.Buch cannot come to the rescue of the University in view of the judgment Page 17 of 19 C/LPA/1244/2014 CAV JUDGMENT of the Apex Court in the case of Ratnesh Kumar (supra). From the overall analysis, there cannot be a scintilla of doubt that the foundation of the termination of appellant as reflected from the Resolution dated 10.09.2013 of the respondentUniversity is the alleged misconduct. The learned Single Judge has fallen in error by holding that the decision of unsuitability of the appellantpetitioner cannot be said to be punitive.
22. In the backdrop of the aforenoted facts and legal position, the writ petition is partly allowed. The impugned order dated 10.09.2013 passed by the respondentUniversity is hereby quashed and set aside. The letters patent appeal is allowed. The impugned judgment and order dated 13.10.2014 passed by the learned Single Judge in Special Civil Application No.13924 of 2014 is hereby set aside. The appellant shall be reinstated in services by the respondent University. However, it is made clear that the respondentUniversity shall initiate regular department inquiry under the rules/ regulation or ordinance for the alleged misconduct, as reflected in the order dated 10.09.2013, and the appellant shall cooperate with the same. It is clarified that this court has not observed anything on merits as regards the allegations made in the resolution dated 10.09.2013. The alleged misconduct shall be independently Page 18 of 19 C/LPA/1244/2014 CAV JUDGMENT examined in the inquiry after issuance of the chargesheet to the appellant. Though, we are setting aside the impugned order, it may not be construed that this court is approving the language used by the appellant in his communications, however, the present observations may not be considered prejudicial to the appellant in the disciplinary proceedings. The entire exercise, reinstating the appellant and conclusion of the disciplinary proceedings shall be completed within a period of three months from the date of receipt of copy of this order. It is further clarified that bearing in mind the peculiar facts of the present case the payment of back wages as well as the continuity of service shall be subject to the result of the disciplinary proceedings.
Sd/-
(HARSHA DEVANI, J) Sd/-
(A. S. SUPEHIA, J) GIRISH Page 19 of 19