Gujarat High Court
Jagdishkumar Kunvarshibhai Desai vs The State Of Gujarat on 2 September, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/7743/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7743 of 2020
==========================================================
JAGDISHKUMAR KUNVARSHIBHAI DESAI
Versus
THE STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1
YAGNESHKUMAR S JOSHI(8074) for the Petitioner(s) No. 1
MR.ISHAN JOSHI, AGP (1) for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 02/09/2020
ORAL ORDER
1. Heard Mr. P. P. Majmudar, learned advocate for the petitioner and Mr. Ishan Joshi learned AGP for the State. Since the issue involved in this petition is now covered by the decision of the Division Bench rendered in Letters Patent Appeal No. 1596 of 2019 and allied matters, the petition is taken up for final hearing today with the consent of the learned advocates for the respective parties.
2. RULE. Mr.Ishan Joshi, learned AGP waives service of Rule for the respondent - State.
3. In this petition under Article 226 of the Constitution of India, the prayer of the petitioner reads as under:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions, directing to quash and set aside the impugned order dated 23.03.2020 passed by the respondent no.1 (At ANNEXURE-A hereto) as well as the order dated 18.09.2018 passed by the respondent no.2 (At ANNEXURE-B hereto) and further be pleased to reinstate the present petitioner on the post of Sub-Page 1 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER
registrar, Grade-2 (Class-3 services), with all consequential benefits and back-wages and continuity of service along with arrears with interest @ 12% p.a.;"
4. The facts in brief are as under:
4.1 The petitioner was appointed on the fixed pay as a Sub-
Registrar, Grade-II (Class-III) at the Sub-registrar's office, Dhanera, by an order dated 17.12.2013. The order stated that the petitioner is appointed as a Sub-Registrar for a period of five years on a fixed pay of Rs.9,400/-.
4.2 On 23.08.2018, one FIR being C.R. No. I - 15 of 2018 was registered with the Palanpur ACB Police Station, Banaskantha, against the petitioner for the offense punishable under Sections 7 and 13(1) of the Prevention of Corruption Act, 1988. The allegation was that though the actual fees for the registration of the sale deed is Rs.2100/-, the petitioner had demanded Rs.3000/- as a round figure which included illegal gratification of Rs.900/-.
4.3 Based on the registration of the FIR, by an order dated 18.09.2018, the services of the petitioner was terminated. On 28.09.2018, the petitioner challenged the aforesaid order by preferring appeal to the State. The appeal also by the impugned order dated 23.03.2020 was rejected, giving rise to the present petition.
5. Mr.P.P.Majmudar, learned advocate for the petitioner would submit that the order of termination dated 18.09.2018 so confirmed in appeal is bad since it violates the principles of natural justice.
5.1 He would further submit that the order cannot be said to be Page 2 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER an order termination simplicitor. From the contents of the order, it is evident that the order was stigmatic and therefore such an order could not have been passed without issuing a show cause notice to the petitioner and after holding a proper departmental inquiry. The order was in violation of principles of natural justice. Mr. Majmudar together with the petition has annexed orders passed by this Court in Special Civil Application No.11530 of 2018 dated 29.01.2018 and in Special Civil Application No.11678 of 2019 passed on 06.08.2019 by which, this Court (Coram:N.V.Anjaria, J) on examination of identical orders in case of contractual employees, quashed and set aside the order impugned therein while referring to several decisions of the Hon'ble Supreme Court and holding that if the order is punitive and stigmatic in nature, even if the employee is temporary, principles of natural justice need to be followed.
6. Mr.Ishan Joshi learned Assistant Government Pleader would vehemently contend that from reading of the impugned order, what is evident is that the petitioner was a fixed term contractual employee. No right to continue on the post therefore existed. He was found to have accepted illegal gratification, therefore, his contract was put to an end. The termination was termination simplicitor and cannot be termed as stigmatic 6.1 He would also, inviting the attention of the Court to the prayers made in the petition, would submit that if such a prayer is granted, it would amount to allowing the petition and reinstatement of the petitioner on a post which he was not entitled to hold and all consequential benefits if given would amount to regularization ex post facto.
Page 3 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER7. Having considered the submissions made by the learned advocates for the parties, the issue of whether an employee appointed on contractual basis is entitled to his services being terminated without following principles of natural justice, the Division Bench of this Court in case of State of Gujarat v. Chetan Jayantilal Rajgor passed in Letters Patent Appeal No.1596 of 2019 and allied matter by a judgment and order dated 24.07.2020 has held thus:
"5. Having heard the learned counsels appearing for the respective parties and having gone through the submissions made by them and in view of analysis of relevant record, we have found that the order passed by the learned Single Judge appears to be exhaustive dealing with not only the status of the present respondents and whether the order passed against them is a stigmatic or not. The reasons reflecting from Para.5 onwards are based upon analysis of the relevant decisions in the context of present background of facts. Hence, we deem it proper to reproduce the same hereby :
"5. The question arises is whether the order was punitive and amounted to stigma which ought to have preceded by a regular inquiry against the petitioner in respect of the allegations levelled against the petitioner employee eventhough petitioner was appointed for a fixed term of five years.
5.1 In judging whether termination is simpliciter or punitive, a trite distinction is made between motive of the order and foundation of the order. In Chandra Prakash Shahi v. State of U.P. [(2000) 5 SCC 152], the Supreme Court explained the concept of motive and foundation in respect of probationer as under: "Motive is the moving power which impels action for a definite result, or to put it differently, motive is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? It if was the factor of general unsuitability of the employee for the post held by him, the act would be upheld in law. If, Page 4 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were to be true in the preliminary inquiry."
(para 29) (emphasis supplied) 5.2 The Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha [(1980) 2 SCC 593] stated and observed thus, "53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used."
(Emphasis supplied)(Para 9) Page 5 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER 5.4 The principle stated was that even the form of the order may be merely a camouflage for order of dismissal actually passed on the basis of misconduct. In such circumstances, the Apex Court stated, it is always open to the court before which the order is challenged, to go beyond the form and ascertain the true character of the order. The Supreme Court held, "If .... .... .... the court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground where the aggrieved officer is not afforded a reasonable opportunity to defend himself as provided in Article 311(2). It is wrong to assume that it is only when there is a full scale departmental enquiry any termination made thereafter will attract the operation of Article 311(2)."
(Paras 11 and 13) 5.8It is the foundation of the order which really matters. The Supreme Court in Anoop Jaiswal (supra) stated that if from the record and the attendant circumstances of the present case it becomes clear that the real foundation for the order of discharge of the appellant-probationer was the alleged act of misconduct, the impugned order would amount to termination of service by way of punishment and in absence of any enquiry held in accordance with Article 311(2), it was liable to be struck down. The Supreme Court thereafter directed reinstatement of the appellant of the said case in service with the same rank of seniority he was entitled to before the impugned order passed as if it had not been passed at all.
5.5In Ratnesh Kumar Choudhary (supra) also the Supreme Court considered its own various decisions on the aspect and after referring to the decision in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd.[(1999) 2 SCC 21] observed that the proposition of law operating two ways. In certain cases of temporary servants and probationers if the inquiry undertaken about the very conduct forms the motive of termination order, then the termination could not be said to be punitive merely Page 6 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER because principles of natural justice have not been followed. In such circumstances, without becoming stigmatic, the employer can exercise its right to terminate service of the employee concerned. In the other line of decisions, the Supreme Court has ruled that if the facts revealed in the inquiry or from the narration of the order itself that the inquiry into the conduct was not the motive but it was a foundation and the allegation of misconduct considered against employee becomes foundation of termination of service of temporary servant or probationer, such action would become punitive and it would make the order legally unsound. The Supreme Court in Ratnesh Kumar Choudhary (supra) thereafter referred to the above quoted observations from Gujarat Still Tubes Limited (supra) terming them as instructive.
5.6In Manishbhai Nayanbhai Mod v. Vadodara Municipal Corporation [2018(2) GLR 1636] the petitioner was Assistant Station Officer and was appointed for a fixed term. It was alleged against him that while serving in the Fire Brigade Branch of the Vadodara Municipal Corporation on the post of Assistant Station Officer, petitioner misbehaved with the Telephone Operator and tried to injured Telephone Operator physically. In the impugned order it was mentioned that while being on the sensitive post petitioner acted with negligency and carelessness in discharge of duties. Show-cause notice was issued against the petitioner and his reply was solicited. Thereafter his services put to an end, this Court referred all the aforesaid decisions to come to the conclusion that the order was founded on the allegations of misconduct and that it was punitive in nature casting stigma. It was held that, "Such an action could not have been taken, eventhough the petitioner was a fixed period employee, without giving the petitioner a full-fledge opportunity to defend and thus by holding a regular departmental inquiry.".
5.7Decision 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.
Page 7 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER"4.1 ... ... ... The above act on part of the competent authority of appellant - Corporation was not only stigmatic, but contrary to law laid down by the Apex Court to which reference is made by learned Single Judge and distinguishing the facts of the present case it was found that termination was punitive. As a necessary corollary, when there is a breach of procedure of instituting full-fledged departmental inquiry, particularly, when termination order referred to following of Gujarat Civil Services [Discipline & Appeal] Rules, 1971, the issuance of show cause notice, receiving reply and then to take final decision to terminate services of an employee was unjust, unreasonable, arbitrary, in breach of the Rules, 1971, violative of principles of natural justice and Article 14 of the Constitution as it would not make any difference whether the employee was appointed temporarily for a fixed term on a fixed salary incorporating various conditions."
1.In another decision in Sandip Ajitsinh Vaghela v. State of Gujarat being Special Civil Application No.12071 of 2018 decided on 26th February, 2019 the same question had arisen where also the petitioner was Junior Clerk employed on temporary basis. In Rahul Aydanbhai Vank v. State of Gujarat being Special Civil Application No.889 of 2018 decided on 05th September, 2018, the petitioner was a contractual employee who was dismissed on the ground of insubordination. The order was found to have been passed on the allegation of misconduct. Same principles were applied and held that services could not have been terminated without undergoing the inquiry.
5.9 The aforesaid decision in Rahul Aydanbhai Vank (supra) was also confirmed in Letters Patent Appeal No.841 of 2019. In the following paragraph, the Letters Patent Bench referred to Manishbhai Nayanbhai Mod (supra) and other decisions to come to the following conclusion to clearly observe that full- scale formal inquiry was requirement of law before the Page 8 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER services could have been terminated.
"8. Even decision relied by learned Assistant Government Pleader in the case of Chaitanya Prakash and Another v. H. Omlarappa reported in (2010) 2 SCC 623 quotes decision in the case of Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences [(2002) 1 SCC 520] where three tests are enumerated to determine whether in substance an order of termination is punitive or not. We find in the present case all above tests namely a full scale formal inquiry, allegation involving moral turpitude or misconduct and culminating into guilt stands satisfied and therefore we have no hesitation to hold that the learned Single Judge committed no error of fact or law or jurisdiction warranting interference in this appeal under Clause 15 of the Letters Patent."
When the impugned order is considered in light of the above principles and the position of law, it could be well discerned that the the event of filing of F.I.R. Against the petitioner was treated as base and it was concluded readily by the respondents that the petitioner had committed misconduct for accepting the bribe. Upon this foundation, the termination was effected. It was on the ground of misconduct and therefore the stigmatic order, which could not have been passed without a full scale inquiry.
6.1 An attempt was made in vain by learned advocate for the respondents that there was compliance of natural justice as the notice was issued to the petitioner. A mere notice would not suffice. No inquiry was held, no charge was framed against the petitioner. Without issuing the charge and without putting the petitioner to knowledge of the allegation which he was to precisely answer, the principles of natural justice could not be said to be followed when the order was founded on misconduct. As held by the Division Bench of this Court in the judgment above, it necessitated a full scale inquiry against the petitioner after issuing show-cause notice and by framing appropriate charge, conducting it in accordance with the natural justice.
Page 9 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER6.2 The petitioner was a fixed term employee who was appointed as Assistant Motor Vehicle Inspector, Class-III as per appointment order dated 17th May, 2013 for a period of five years. The impugned order came to be passed on 22nd April, 2015. Therefore, the relief which would ensue for the petitioner shall be upto making up good the total period of five years of employment.
7. As a consequence of above discussion and reasons, the impugned order dated 30th March, 2015 passed by respondent No.2 - Commissioner of Transport is hereby set aside. Respondents are further directed to reinstate the petitioner on original post of Assistant Motor Vehicle Inspector, Class-III with continuity of service and with payment of salary/wages for the interregnum as well as the consequential benefits which may arise, as if the order of termination was never passed. The reinstatement of the petitioner directed as above shall be for the period upto making of the total original period fixed for his employment as per order of appointment. The resultant monetary benefits to be paid to the petitioner within a period of eight weeks from the date of receipt of the present order."
6. In the cognate matter also, almost similar observations are visible and as such, we do not propose to over burden the present order. These observations if to be examined in the background of present fact situation, the same are found to be just and proper. It appears here that the original petitioners were dealt with by issuance of show cause notice with respect to serious charges levelled against them and the notice was given stating as to why in terms of their appointment, they may not be dismissed from the services. Now, this show cause notice appears to have been replied at length by the original petitioners and subsequently, by giving a brief opportunity, without conducting full-scale departmental inquiry, an order of dismissal came to be passed. This procedure which has been adopted by the department against both the original petitioners and undisputedly, no departmental inquiry having been conducted against them, the learned Single Page 10 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER Judge, on the basis of relevant proposition of law laid down by the Apex Court, was justified in his view that in the absence of full-scale departmental inquiry, the services of the writ petitioners cannot be terminated in the manner in which it has been put to an end. We see no infirmity in the order passed by the learned Single Judge, particularly having gone through the relevant record made available to us.
7. This view which has been taken by the learned Single Judge, to which we are also in agreement, stands fortified by few decisions by the Division Bench of this Court which have already been relied upon by the learned Single Judge.
8. The bone of contention of appellants - State authorities is that since the original petitioners are employed on a contract basis and fixed pay, the Department is not under an obligation to conduct a detailed full-scale departmental inquiry. Now, this contention has been the subject matter of scrutiny on earlier occasion before a Coordinate Bench in Letters Patent Appeal No.189 of 2018 between Vadodara Municipal Corporation v. Manishbhai Nayanbhai Modh, decided on 20.2.2018. The relevant observations contained in the said decision are reflecting in Para.4.1 which are also based upon the decision of the Apex Court and in consonance with the provision of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The said observations have also been considered at length by the learned Single Judge which are reflecting in Para. 5.7 of the impugned order.
9. Yet in another decision again by the Division Bench of this Court rendered in Letters Patent Appeal No.841 of 2019 between Rahul Aydanbhai Vak v. State of Gujarat, decided on 15.4.2019, in which the same issue has been considered. The relevant discussion of the Division Bench in the said case is contained in Para.7, 8 and 9, in which in no uncertain terms, almost in similar set of circumstance, the Division Bench has clearly opined that full-scale departmental inquiry will have to be undertaken, if initiation of action on the basis of unsatisfactory work, gross negligence or indiscipline or any act which may tantamount to be stigmatic and as such, consistently this view has been clearly opined by the Division Bench.
Page 11 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER10. Yet in further decision which is brought to our notice rendered in Special Civil Application No.10928 of 2014, decided on 29.9.2014, in which also the Division Bench has examined even the status of contractual employment. But since we are not called upon nor concerned with the said issue to be dealt with in the present case, we refrain ourselves from commenting anything and leaving the said issue as it is.
11. From the overall material on record and in consideration of aforesaid observations, we see no distinguishable material to take a different view or deviate from the same. Since almost in similar issue, the proposition is to the effect that whenever any charge is levelled and action is found to be stigmatic, a full-scale departmental inquiry deserves to be undertaken irrespective of whether the delinquent was a regular employee or contractual employee on a fixed salary. As a result of this, we are of the considered opinion that since undisputedly by a brief procedure, an action is initiated against the respondents herein while dismissing their services, said action itself is found to be not on the touchstone of aforesaid proposition of law. As a result of this, no error is committed by the learned Single Judge. Having perused these material, we are not satisfied with the submissions made by learned counsel for the appellants in both these appeals."
8. Following the aforesaid decision of the Division Bench, a Coordinate bench of this Court in case of Chamar Bharatkumar Venubhai versus Dy. District Development Officer & Another passed in Special Civil Application No. 11419 of 2018 by judgment and order dated 26.08.2020 has held as under:
"8. Having heard learned advocates for the parties and having gone through the material on record, before examining the validity of action, the relevant proposition of law laid down by series of decisions, the Court would like to deal with and reproduce some of the relevant observations contained in one of the decisions, which is also attracting the factual background of the present case. In case of Sandip Ajitsingh Vaghela Vs. State of Gujarat, [Special Page 12 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER Civil Application No.12071 of 2018, decided on 26.2.2019], the Court was also confronted with almost similar factual background in which also, on account of serious misconduct, without holding departmental inquiry and compliance of principle of natural justice, the order of removal came to be passed and the petition came to be allowed. Relevant observations contained in para 5 of the said decision is reproduced hereinafter:- "5. The position of law in relation to effecting termination of service of an employee, even if on the fixed pay, by passing a stigmatic order without following principles of natural justice came to be delineated and discussed by this Court in Imranbhai Anwarbhai Majothi v. State of Gujarat being Special Civil Application No.17872 of 2017 decided on 30th November, 2017. In that case, petitioner was appointed as Beat Guard. The allegations were raised against him inter alia that he had stolen two passbooks, that he mentioned wrong information in the Register to allow trucks to pass-by illegally. It was stated in the order leading to his termination of service that he used the pass-book for illegal purpose for which it was stolen and due to the act of negligence, caused damage to the forest's properties to a large extent. It was mentioned in the order that if the petitioner was to continue in service, it would entail greater loss and that it was not advisable to continue the petitioner in service since the petitioner was found to be negligent and careless in discharge of his duties.
5.1 The law on the aspect was discussed with reference to the decisions of the Apex Court. In judging whether termination is simpliciter or punitive, a trite distinction is made between motive of the order and foundation of the order. In Chandra Prakash Shahi v. State of U.P.[(2000) 5 SCC 152], the Supreme Court explained the concept of motive and foundation in respect of probationer as under:
"Motive is the moving power which impels action for a definite result, or to put it differently, motive is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? It if was the factor of general unsuitability of the employee for the post held by Page 13 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER him, the act would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were to be true in the preliminary inquiry." (para 29) (emphasis supplied) 5.2 The above statement of law that if the order is punitive and stigmatic in nature, even if the employee concerned is a temporary employee or holding the post as on probation, his dismissal or removal would warrant a regular inquiry and full-fledged compliance of natural justice, emanaged from the early decision of the Apex Court in Anoop Jaiswal v. Government of India [(1984) 2 SCC 369]. In that case, the Apex Court held that it is permissible for the Court to go behind the formal order of discharge so as to find out the real cause of action. In that case, the appellant was an IPS Officer, undergoing training as a probationer, arrived late by about 22 minutes at the place, even though prior intimation was sent about the time on which, the candidates were required to reach the venue. The incident of delayed reporting was considered to be one by the authorities calling for an inquiry and an explanation was sought for from the petitioner and all other probationer trainees who had arrived late. On the basis of explanation, the Director recommended the Government for discharge of the appellant from service. The Government passed order of discharge on the basis of recommendation of the Director with whom, the only ground prevailing was that the appellant did not show any sign of repentance. The High Court dismissed the Writ Petition. However, the Supreme Court allowed the Appeal and held that the order was punitive. The appellant was directed to be reinstated with full benefits.
5.3 The principle stated was that even the form of the order may be merely a camouflage for order of dismissal actually passed on the basis of misconduct. In such circumstances, the Apex Court stated, it is always open to the court before which the order is challenged, to go beyond the form and ascertain the true character of the Page 14 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER order. The Supreme Court held, "If .... .... .... the court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground where the aggrieved officer is not afforded a reasonable opportunity to defend himself as provided in Article 311(2). It is wrong to assume that it is only when there is a full scale departmental enquiry any termination made thereafter will attract the operation of Article 311(2)." (Paras 11 and 13) 5.4 It is the foundation of the order which really matters. The Supreme Court in Anoop Jaiswal (supra) stated that if from the record and the attendant circumstances of the present case it becomes clear that the real foundation for the order of discharge of the appellant probationer was the alleged act of misconduct, the impugned order would amount to termination of service by way of punishment and in absence of any enquiry held in accordance with Article 311(2), it was liable to be struck down. The Supreme Court thereafter directed reinstatement of the appellant of the said case in service with the same rank of seniority he was entitled to before the impugned order passed as if it had not been passed at all.
5.5 The Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha [(1980) 2 SCC 593] stated and observed thus, "53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls Page 15 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used." (Emphasis supplied) (Para
9) 5.5.1Having delineated the aforesaid principles, the Apex Court held that the order in the case before it could not be treated as a simple order of retrenchment and that it was an order passed by way of punishment.
It was held that such order of dismissal which was passed without holding a regular departmental inquiry cannot be allowed to be sustained. 5.6 In Ratnesh Kumar Choudhary (supra) also the Supreme Court considered its own various decisions on the aspect and after referring to the decision in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn.Ltd. [(1999) 2 SCC 21] observed that the proposition of law operating two ways. In certain cases of temporary servants and probationers if the inquiry undertaken about the very conduct forms the motive of termination order, then the termination could not be said to be punitive merely because principles of natural justice have not been followed. In such circumstances, without becoming stigmatic, the employer can exercise its right to terminate service of the employee concerned. In the other line of decisions, the Supreme Court has ruled that if the facts revealed in the inquiry or from the narration of the order itself that the inquiry into the conduct was not the motive but it was a foundation and the allegation of Page 16 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER misconduct considered against employee becomes foundation of termination of service of temporary servant or probationer, such action would become punitive and it would make the order legally unsound. The Supreme Court in Ratnesh Kumar Choudhary (supra) thereafter referred to the above quoted observations from Gujarat Still Tubes Limited (supra) terming them as instructive. 5.7 In Imranbhai Anwarbhai Majothi (supra), it was thereafter observed and held, "6. When the impugned order is assessed, evaluated and considered in light of the aforesaid principles, it is even not necessary to adopt the process of lifting of veil. It is not necessary to remove the facade even, for, the order in these very recitals could be manifestly said to be based on allegations of misconduct. The plain reading of order castes stigma. It is a stigmatic action of termination of petitioner's service. Such an action could not have been taken, eventhough the petitioner was a fixed period employee, without giving the petitioner a fullfledge opportunity to defend and thus by holding a regular departmental inquiry. The employer is not allowed to hire and fire employee. Even if the temporary, ad-hoc or probationer employee is driven out of service on the ground of misconduct without holding inquiry and stigma is caste on his career by the punitive order, it is also a facet of behaving with hire and fire attitude by the employer."
5.8 Also stand to support the petitioner another decision of this Court in Special Civil Application No.1095 of 2016 decided on 21st September, 2016 in which, it was observed in paragraph 8 of the judgment that the order ex facie indicated that the basis of the order of termination was criminal complaint lodged against the petitioner. As the order was passed without compliance of natural justice, it was required indulgence of the Court, stated the Court, after discussing the position of law in that regard.
9. In addition to the aforesaid observations, it has been posted before the Court that recently also, in Letters Patent Appeal Nos.395 and 396 of 2020, the Division Bench has confirmed one of such propositions of law in the order dated 6.8.2020. Accordingly, since the principle Page 17 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER of law is well enunciated and confirmed by the Division Bench of this Court and it is attracting and applying to the present background of facts, the Court would not like to express anything much on the proposition and would like to follow the same.
10. Here, in the present case, if we respondent-visit the facts, the petitioner was appointed on ad-hoc basis on a fixed salary vide order dated 5.11.2014, which is attached to the petition compilation on page 8, and as against that order of termination/ dismissal, if to be looked into, which is on page 11/A (typed copy), it appears that only on account of this instance of taking bribe for which criminal case is filed against the petitioner, an order of dismissal is passed by the authority, on the basis of the Government Resolution dated 28.3.2016 and for this, undisputedly, no departmental inquiry was conducted against the petitioner nor any fair opportunity is given to meet with the action. Hence, this being the undisputed position on record, in the considered opinion of this Court, the observations contained in the aforesaid decision of the Coordinate Bench will have a direct bearing. Accordingly, the Court is of the opinion that the action initiated against the petitioner is impermissible. Hence, the case is made out to grant the reliefs as prayed for in the petition.
11. In light of the aforesaid contentions and recitals, the very foundation of the impugned order is alleged misconduct of taking bribe, for which, criminal complaint is registered, the action initiated against the petitioner is undoubtedly a penal action. Hence, the same is liable to be quashed and set aside in view of the aforesaid proposition of law.
12. However, since the impugned order has taken place during the tenure of ad-hoc employment of the petitioner, it is clarified that reinstatement of the petitioner would be for the period, which would make total fixed period for which he was appointed."
9. Considering the aforesaid submissions and in view of the decisions of this Court in case of Chetan Jayantilal Rajgor (supra) and in case of Chamar Bharatkumar Venubhai (supra), it is evident that Page 18 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021 C/SCA/7743/2020 ORDER the order of termination that was passed in case of the petitioner, though the appointment was contractual and for a fixed term basis, the order amounted to a stigmatic order and the order is therefore quashed and set aside.
10. As a result of the above discussion, the impugned order of termination dated 18.09.2018 and the order in appeal dated 23.03.2020 are quashed and set aside. The respondents are directed to treat the petitioner to have been reinstated on the original post of sub-registrar (Grade-II) with continuity of service and with salary/wages to be paid for the interregnum, as well as with consequential benefits as if the order of termination dated 18.09.2018 was never passed. Reinstatement of the petitioner directed as above, shall be upto 17.12.2018 so as to make up the total period of employment of five years as per the conditions of the appointment. Resultant monetary benefits arising by virtue of the present order shall be paid to the petitioner within a period of eight weeks from the date of receipt of the present order.
11. Petition is allowed accordingly. The Rule is made absolute in the aforesaid terms.
(BIREN VAISHNAV, J) ANKIT SHAH Page 19 of 19 Downloaded on : Mon Feb 22 05:14:25 IST 2021