Gujarat High Court
Ashishbhai Chandrakantbhai Solanki vs State Of Gujarat on 27 October, 2020
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/7904/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7904 of 2020
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ASHISHBHAI CHANDRAKANTBHAI SOLANKI
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR MOUSAM R YAGNIK(3689) for the Petitioner(s) No. 1
MR NIRAD D BUCH(4000) for the Petitioner(s) No. 1
MS ASMITA PATEL, AGP (1) for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 27/10/2020
ORAL ORDER
In the facts and circumstances of the case and having regard to the request and consent of the parties appearing through their learned advocates, the petition was taken up for final consideration.
1.1 Rule, returnable forthwith. Learned Assistant Government Pleader Ms.Asmita Patel waives service of Rule.
1.2 Heard learned advocate Mr.Nirad Buch for the petitioner and learned Assistant Government Pleader for the respondents.
2. The petitioner has prayed to set aside order dated 04th March, 2020 passed by respondent No.2-Under Secretary, Revenue Department. It is further prayed to set aside order dated 29th April, 2016 passed by Collector, Surendranagar. It is next prayed to reinstate the petitioner on the original post with all consequential benefits.
Page 1 of 13 Downloaded on : Thu Oct 29 23:44:42 IST 2020 C/SCA/7904/2020 ORDER2.1 The second mentioned order dated 29th April, 2016 of the Collector was the order terminating the services of the petitioner whereas the other order dated 04th March, 2020 passed by respondent No.2 was an order passed in departmental appeal whereby appeal was dismissed and the order of termination came to be confirmed.
3. The petitioner was appointed as Clerk in the establishment of respondent No.3-Collector. His appointment was for fixed period of five years. Having been initially appointed at the office of Mamlatdar, Chotila, he was transferred to Mamlatdar Office at Sayla. During that time, F.I.R. being C.R. No.2 of 2016 dated 14th March, 2016 came to be registered against the petitioner with Anti Corruption Bureau Police Station, Surendranagar in respect of the alleged offences under Sections 7, 12, 13(1)(5) and 13(2) of the Prevention of Corruption Act, 1988. In the said F.I.R., the complainant had stated that in the land of the complainant, as there was no irrigation facility, he had applied for digging Well in his land by extending pipeline in his field from the adjoining land, application was made to the office of Mamlatdar. It was alleged that petitioner and one another person who was also accused, demanded Rs.25,000/- as bribe, out of which the deal was finally settled at Rs.20,000/-. It was alleged that both in collusion were to receive the illegal gratification when the raid was arranged. Initially bail application was rejected, but the High Court granted bail to the accused persons.
Page 2 of 13 Downloaded on : Thu Oct 29 23:44:42 IST 2020 C/SCA/7904/2020 ORDER3.1 On the basis of the above facts, Collector passed order of termination on the ground that since the petitioner was detained for more than 24 hours and further since he was on fixed pay and fixed period, in view of Rule 5(1)(b) and 5(1)(a) of the Gujarat State Services (Disciplinary and Appeal) Rules, 1971, the petitioner had committed breach of the conditions of appointment and it was further decided that in view of the above facts, he had considered serious misconduct and that in view of such misconduct, his contractual services were liable to be terminated. Against the aforesaid order dated 29th April, 2016, petitioner preferred appeal before the appellate authority which came to be dismissed on 14th March, 2020.
3.3 Looking to the impugned order, it is clear that the said order is passed based on the factum of filing of F.I.R. The Collector who issued order, reached his conclusion on the basis of filing of F.I.R. only that the petitioner had committed misconduct. The order founded on the incident of taking bribe had taken place as described in the order and that the petitioner was dishonest and acted in the manner unbecoming of a government servant. There is no gainsaying from the bare reading of the order that the order was stigmatic and punitive in nature. The order normally mentions that the petitioner had committed a serious misconduct.
4. Learned advocate for the petitioner Page 3 of 13 Downloaded on : Thu Oct 29 23:44:42 IST 2020 C/SCA/7904/2020 ORDER submitted that the order was passed without giving any opportunity of hearing to the petitioner. He submitted that when the order was recorded finding on the conclusion of misconduct, a regular departmental inquiry ought to have been held. It could be noticed that the authority did not act in compliance of even semblance of natural justice. Learned Assistant Government Pleader was entirely at his receiving end when confronted with this aspect.
4.1 Learned advocate for the petitioner next submitted that the case of the petitioner stands covered by the decision of this Court in Sanjay Bhanubhai Makwana v. State of Gujarat being Special Civil Application No.15773 of 2018 decided as per the judgment dated 07th May, 2019 which was confirmed in Letters Patent Appeal No.493 of 2020 dismissed on 03rd September, 2020.
5. In Sanjay Bhanubhai Makwana (supra), the facts were similar as could be seen from the contents of paragraph Nos.3 and 3.1 which are reproduced hereunder.
"3. Looking at the impugned order, it mentioned about the F.I.R. having been filed against the petitioner under the provisions of the Prevention of Corruption Act, 1988 at Crime Register No.I-03 of 2014 before ACB Police Station at Valsad. It was alleged that petitioner, along with other persons, was caught while accepting the amount of bribe and that the petitioner was arrested. Thereafter mentioned were condition No.11 in the order of appointment. Condition Nos.11 and 12 of the order of appointment to state that petitioner was liable to be terminated during the fixed period if he was found to have committed serious misconduct or financial irregularity. It was Page 4 of 13 Downloaded on : Thu Oct 29 23:44:42 IST 2020 C/SCA/7904/2020 ORDER thereafter mentioned that the Gujarat Civil Services (Conduct) Rules, 1971 would not straightway apply to the employee as he was a fixed term employee.
3.1 After detailing the facts of the alleged incident wherein bribe was allegedly accepted by the petitioner, the respondent No.2 authority concluded that the petitioner had committed a misconduct in view of filing of the F.I.R. It was stated that the incident described in the complaint had taken place and that the misconduct committed by the petitioner was serious. According to the respondents, the petitioner was issued notice but he could not convince the authorities about his innocence and no documents were produced which proved innocence. Consequently, the services of the petitioner was terminated. Thus, the termination of services of the petitioner was on the footing that the petitioner had committed a misconduct."
5.1 In the aforesaid case also, the petitioner- employee was a fixed term employee. Since the order was passed terminating the services on the footing of misconduct not preceded by any inquiry in compliance with the natural justice, the Court allowed the petition and reinstated the petitioner as per the final directions.
5.2 The discussion of law and the reasoning supplied in Sanjay Bhanubhai Makwana (supra) would apply to the present case which is extracted hereinbelow to be treated and adopted as part of the reasoning in support of the present order.
"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.Page 5 of 13 Downloaded on : Thu Oct 29 23:44:42 IST 2020 C/SCA/7904/2020 ORDER
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, 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, Page 6 of 13 Downloaded on : Thu Oct 29 23:44:42 IST 2020 C/SCA/7904/2020 ORDER 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) 5.3 The principle stated was that even the form of the order may be merely a camouflage for order of dismissal actually passed on the basis of misconduct. In such circumstances, the Apex Court stated, it is always open to the court before which the order is challenged, to go beyond the form and ascertain the true character of the order. The Supreme Court held, "If .... .... .... the court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground where the aggrieved officer is not afforded 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-
Page 7 of 13 Downloaded on : Thu Oct 29 23:44:42 IST 2020 C/SCA/7904/2020 ORDERprobationer 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 In Ratnesh Kumar Choudhary (supra) also the Supreme Court considered its own various decisions on the aspect and after referring to the decision in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21] observed that the proposition of law operating two ways. In certain cases of temporary servants and probationers if the inquiry undertaken about the very conduct forms the motive of termination order, then the termination could not be said to be punitive merely because principles of natural justice have not been followed. In such circumstances, without becoming stigmatic, the employer can exercise its right to terminate service of the employee concerned. In the other line of decisions, the Supreme Court has ruled that if the facts revealed in the inquiry or from the narration of the order itself that the inquiry into the conduct was not the motive but it was a foundation and the allegation of misconduct considered against employee becomes foundation of termination of service of temporary servant or probationer, such action would become punitive and it would make the order legally unsound. The Supreme Court in Ratnesh Kumar Choudhary (supra) thereafter referred to the above quoted observations from Gujarat Still Tubes Limited (supra) terming them as instructive.
5.6 In 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 Page 8 of 13 Downloaded on : Thu Oct 29 23:44:42 IST 2020 C/SCA/7904/2020 ORDER 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.".
5.7 Decision in Manishbhai Nayanbhai Mod (supra) was challenged by way of Letters Patent Appeal No.189 of 2018, which came to be dismissed. The Division Bench, confirming the decision in Manishbhai Nayanbhai Mod (supra), observed as under.
"4.1 ... ... ... The above act on part of the competent authority of appellant - Corporation was not only stigmatic, but contrary to law laid down by the Apex Court to which reference is made by learned Single Judge and distinguishing the facts of the present case it was found that termination was punitive. As a necessary corollary, when there is a breach of procedure of instituting full-fledged departmental inquiry, particularly, when termination order referred to following of Gujarat Civil Services [Discipline & Appeal] Rules, 1971, the issuance of show cause notice, receiving reply and then to take final decision to terminate services of an employee was unjust, unreasonable, arbitrary, in breach of the Rules, 1971, violative of principles of natural justice and Article 14 of the Constitution as it would not make any difference whether the employee was appointed temporarily for a fixed term on a fixed salary incorporating various conditions."
5.8 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 Page 9 of 13 Downloaded on : Thu Oct 29 23:44:42 IST 2020 C/SCA/7904/2020 ORDER 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 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."
5.3 When the impugned orders are considered in light of the above principles and the position of law, it could be well discerned that the event of filing of F.I.R. against the petitioner was treated as the base and it was concluded readily by the respondent authority that the petitioner had Page 10 of 13 Downloaded on : Thu Oct 29 23:44:42 IST 2020 C/SCA/7904/2020 ORDER committed misconduct for accepting the bribe. It was upon this foundation, the termination was effected. The impugned orders were rested on the ground of misconduct and therefore it was stigmatic order, which could not have been passed without a full scale inquiry.
5.4 Decision in Sanjay Bhanubhai Makwana (supra) was confirmed by the Division Bench in Letters Patent Appeal No.493 of 2020 as per order dated 03rd September, 2020. The Division Bench noted that Letters Patent Appeal No.1596 of 2019 and Letters Patent Appeal No.1597 of 2019 decided on 24th July, 2019 squarely covered the point. It may be noted that decision in Sandip Ajitsinh Vaghela v. State of Gujarat being Special Civil Application No.12071 of 2018 decided on 26th February, 2019 had similar facts so also the decision in Imranbhai Anwarbhai Majothi v. State of Gujarat being Special Civil Application No.17872 of 2017. Those petitions were also allowed by this Court.
6. In view of the above reasons and discussion and the position of law obtained, the impugned orders being stigmatic and having been passed without compliance of natural justice and without holding of any inquiry, are liable to be set aside. The petition deserves to be allowed.
6.1 The petitioner was fixed term employee who was appointed on 27th September, 2012. His five years term would expire on 26th September, 2022. Therefore Page 11 of 13 Downloaded on : Thu Oct 29 23:44:42 IST 2020 C/SCA/7904/2020 ORDER while the impugned orders will be liable to be set aside and the petitioner would be required to be reinstated, it is clarified that his reinstatement would be for a period which would make up the total period of five years which was a fixed period for which the petitioner was appointed.
7. As a consequence of above discussion and reasons, the impugned order dated 29th April, 2016 passed by the Collector, Surendranagar as well as order dated 04th March, 2020 passed by respondent No.2-Under Secretary, Revenue Department, are hereby set aside. The respondents are further directed to reinstate the petitioner on the original post of Clerk 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.
7.1 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.
7.2 At the same time, it is provided that 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.
8. It is observed and clarified that the respondents are not precluded from proceeding against the petitioner in accordance with law.
Page 12 of 13 Downloaded on : Thu Oct 29 23:44:42 IST 2020 C/SCA/7904/2020 ORDER9. The petition is allowed in the aforesaid terms.
Direct service is permitted.
(N.V.ANJARIA, J) Manshi/Anup Page 13 of 13 Downloaded on : Thu Oct 29 23:44:42 IST 2020