Gujarat High Court
Kanjibhai Nathubhai Rabari vs State Of Gujarat on 29 November, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15460 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy
of the judgment ? No
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution No
of India or any order made thereunder ?
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KANJIBHAI NATHUBHAI RABARI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR RK MISHRA(482) for the Petitioner(s) No. 1
MS FORUM U TRIVEDI, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 29/11/2022
ORAL JUDGMENT
1 By way of this petition, the petitioner has prayed for quashing and setting aside the order of Page 1 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 termination dated 26.9.2014, which is confirmed by the Appellate Authority vide order dated 5.5.2018 whereby the petitioner was terminated and that action was held to be legal and valid by the appellate authority. The petitioner has also prayed for reinstatement with all consequential benefits, including back wages.
2 Heard learned advocate Mr.R.K.Mishra, learned advocate for the petitioner, Mr.H.S.Munshaw, learned advocate for the respondent No.2 and Ms.Forum U. Trivedi, learned Assistant Government Pleader for respondent No.1.
3 With the consent of the learned advocates for the parties, the matter was heard finally. Hence, Rule. Learned advocate Mr.H.S.Munshaw waives service of Rule for respondent No.2 and Ms.Forum U. Trivedi, learned Assistant Government Pleader waives service of Rule on behalf of respondent No.1.
4 Brief facts of the case are that the Page 2 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 petitioner is an Ex-Army man and was appointed as Talati-cum-Mantri (Gram Panchayat Mantri) on a fixed salary vide order dated 31.3.2008 for a period of 5 years on contractual basis. The appointment of the petitioner was made under Section 227 of the Gujarat Panchayat Act and as per the condition 15 of the appointment order, the petitioner was entitled for being considered for placing him under regular pay scale of Rs.3050-4590 on successful completion of 5 years on the basis of the certificate issued by the District Development Officer recording his satisfaction about the services rendered by the petitioner.
4.1 The petitioner's contractual appointment period ended in the month of April, 2013 as the petitioner completed 5 years of service. However, the record does not indicate nor learned advocates Mr.R.K.Mishra or Mr.H.S.Munshaw appearing for the rival parties could point out or could submit anything on the basis of the instructions that any other order was issued in favour of the petitioner Page 3 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 extending his contractual appointment. However, the fact remains that the petitioner continued to serve on the said post even after completion of 5 years contractual period. It is an admitted position that upon completion of 5 years, the District Development Officer did not recommend the case of the petitioner for absorbing him in the pay scale of Rs.3050-4590 by giving a certificate recording his satisfaction.
4.2 In the meantime, an FIR was registered against the petitioner at Dhaboda Police Station in Chanasma Taluka being FIR No.I-53 of 2013 for the offences punishable under Section 465 and 468 of the Indian Penal Code alleging that the petitioner has fraudulently prepared a bogus creamy layer certificate and on the basis of the same the petitioner had obtained job as Talati cum Mantri.
4.3 Pursuant to the aforesaid FIR, proceedings as per the criminal low took place and thereafter a show cause notice dated 21.10.2013 was issued by the District Development Officer (Panchayat), Patan Page 4 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 District Panchayat on the basis of the report submitted by the Taluka Development officer, Chanasma, wherein it was alleged that the petitioner has committed various financial irregularities, and therefore, the petitioner was asked to show cause as to why he should not be terminated from service on the ground of negligence and financial misappropriation.
4.4 The petitioner replied to the aforesaid show cause notice. However, ultimately the petitioner was terminated from services vide order dated 26.9.2014 passed by the District Development Officer, Patan District Panchayat. Against the order of termination dated 26.9.2014, the petitioner preferred an appeal and the aforesaid appeal also came to be rejected vide order dated 5.5.2018 passed by the Chief Secretary, Panchayat Rural Housing and Rural Development Department. Hence, by way of this petition, the petitioner has challenged both the orders.
Page 5 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 5 Mr.R.K.Mishra, learned advocate for the petitioner, submitted that considering the fact that serious charges are levelled against the petitioner and on the basis of the aforesaid charges the services of the petitioner have been terminated vide order dated 26.9.2014 and the aforesaid order of termination would cast stigma upon the petitioner.
Hence, the respondents were required to go for a full-fledged departmental inquiry. He further submitted that as the petitioner has completed 5 years contractual period successfully in April, 2013, whereas the show cause notice was given in the month of October, 2013 and order was passed in September, 2014, it can be said that the petitioner has successfully completed 5 years, and therefore, he can be said to be on regular establishment, and therefore, a full-fledged inquiry was required.
5.1 From the record, Mr.Mishra, learned advocate for the petitioner pointed out that except for issuance of show cause notice, no procedure is followed and only on the basis of the reply given by Page 6 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 the petitioner to the show cause notice, the impugned order of termination was passed. He further submitted that at no point of time charge sheet has been issued by the Department nor any other proceedings related to departmental inquiry have taken place, and therefore, the impugned order is required to be quashed and set aside. Learned advocate for the petitioner relied upon the judgment dated 24.7.2020 rendered by the Division Bench of this Court in the case of State of Gujarat vs. Chetan Jayantilal Rajgor in Letters Patent Appeal No.1596 of 2019 and allied matters and by relying upon the same submitted that even if the appointment is on contractual nature for a specific period, then also the respondents were required to go for a full-fledged departmental inquiry before terminating the services of the petitioner. Learned advocate for the petitioner further submitted that the impugned order dated 26.9.2014 is a stigmatic order, and therefore, the impugned order is illegal and required to be quashed and set aside.
Page 7 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 6 Mr.H.S.Munshaw, learned advocate for the respondent No.2 vehemently opposed the petition and submitted that the appointment order of the petitioner itself indicates that in case of any discrepancy related to the documents produced by the petitioner, the services of the petitioner can be terminated. He draws attention to condition No.3 of the appointment order and submitted that though the petitioner's character and past was verified by the Police Department, yet even during the service tenure if that is found to be contrary, condition No.3 provides that the petitioner's services can be terminated. He further draws attention of the Court that as per the appointment order, any appointee can be considered for absorption in the regular grade of Rs.3050-4590 only upon issuance of a certificate by the District Development Officer certifying that he has performed the duty satisfactorily. In the instant case, no such certificate is issued, and therefore, even if the petitioner has completed 5 years of service, as per the original contractual appointment, cannot automatically acquire the status of permanent Page 8 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 employee. He further submitted that the petitioner is not placed in the scale of Rs.3050-4590. Mr.Munshaw, learned advocate for the petitioner also drew attention of the Court that just by giving one month notice or notice pay, services of the appointee can be terminated. It is further submitted that in the instant case considering the allegation that the petitioner has committed financial irregularities and FIR was registered against the petitioner for producing fake certificate about creamy layer, the action of the authorities terminating the services of the petitioner and confirming the same by the appellate authority is justified.
6.1 Learned advocate Mr.Munshaw further submitted that as sufficient opportunity has been given to the petitioner by issuing show cause notice and as the reply given to the show cause notice was considered while terminating the services of the petitioner, the judgment in the case of Chetan Jayantilal Rajgor (supra) will not come in the way of the respondents.
Page 9 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 6.2 By making the aforesaid submissions, learned advocate Mr.Munshaw prayed for dismissal of the petition.
7 Ms.Trivedi, learned Assistant Government Pleader, supported the submissions made by Mr.Munshaw, learned advocate for the respondent No.2, and submitted that looking to the nature of allegations levelled against the petitioner as well as considering the fact that the services of the petitioner were terminated by taking into consideration the reply to the show cause notice, it cannot be said that the principles of natural justice were not followed and prayed for dismissal of the petition.
8 Heard learned advocates for the parties and perused the record of the case. On perusal of the record, it transpires that the petitioner was appointed vide order dated 31.3.2008 and pursuant to the aforesaid appointment order, the petitioner Page 10 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 joined the service under the respondent Panchayat in April, 2008 and 5 years contractual period got over in the month of April, 2013. Though the petitioner has worked in the respondent panchayat up to September, 2014 neither Mr.Mishra nor Mr.Munshaw could point out either from the record or from any other documentary evidence or instruction that there was any order by virtue of which the services of the petitioner was extended for a particular period.
However, the fact remains that the petitioner has worked under respondent panchayat upto September, 2014 until his services were terminated vide order dated 26.9.2014. Further, it is also an undisputed fact that though the petitioner has completed 5 years service as per the contractual appointment, however, the petitioner was not absorbed in the regular pay scale of Rs.3050-4590 or that the petitioner's services were certified to be satisfactory by the District Development Officer as per the requirement of condition No.15 of the appointment order, which would make the petitioner eligible and entitle for absorption in the regular pay scale of Rs.3050-4590, Page 11 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 and therefore, the fact remains that the petitioner's contractual period of 5 years though was over in April, 2013, the petitioner continued to serve on the same terms and conditions till his termination and he was not absorbed on the regular post or was not given regular pay scale.
8.1 Now, in light of the above undisputed facts, the submissions of the rival parties are considered.
8.2 At the time when the show cause notice was given in October, 2013, the petitioner was in contractual appointment and the show cause notice itself suggests that the petitioner's case was not recommended for absorption in the regular pay scale by the District Development Officer, Patan by certifying that his work is satisfactory. Further, in the show cause notice there are number of allegations levelled against the petitioner in respect of financial irregularities and the petitioner's services was terminated vide order dated 26.9.2014 by Page 12 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 taking into consideration the allegations made in the show cause notice as well as by taking into consideration the fact that the petitioner has produced a fake creamy layer certificate for which a criminal case was registered against the petitioner.
After a detailed discussion, the District Development Officer, Patan came to the conclusion that as the petitioner has committed financial irregularities while holding the post of Talati-cum-Mantri to the tune of Rs.99,452/- and as he has produced a fake non-creamy layer certificate, which amounts to indiscipline and gross negligence. Therefore, considering condition No.21 of the appointment order as the petitioner's appointment is ad-hoc in nature, petitioner's services were terminated considering the seriousness of allegations levelled against him.
8.3 A bare reading of the order of termination indicates that in the impugned order there is a detailed discussion about the allegations against the petitioner and while terminating the services, the respondent authority has considered the reply given Page 13 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 by the petitioner, however the authority also found that the aforesaid reply was not relevant as the petitioner has given reply about the services rendered by him in the Indian Army and the procedure adopted by the Government, etc. and has not dealt with the allegations levelled against the petitioner.
8.4 It is true that the authority has passed the impugned order without holding departmental inquiry, however, the authority has considered the serious allegations levelled against the petitioner and elaborately discussed the same in the impugned order. The instant case is required to be considered in light of the judgment in the case of Chetan Jayantilal Rajgor (supra) relied upon by learned advocate Mr.Mishra. In that case also, the petitioner, who was on a fixed term appointment and whose services were terminated by the concerned authority on account of some A.C.B. case registered against him without holding full-fledged departmental inquiry and hence the learned Single Judge had quashed the order of termination and the State had Page 14 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 carried the aforesaid order of the learned Single Judge in appeal by preferring Letters Patent Appeal No.1596 of 2019. While dismissing the above appeal, the Division Bench of this Court in paras 5 to 11 held as under:
"8. During the course of hearing of both these appeals, on behalf of the State Authority, Ms.Manisha Lavkumar Shah, learned Government Pleader, has vehemently contended that these respective respondents were undisputedly appointed purely on a contractual basis for a period of 5 years on a fixed salary and, therefore, cannot be equated with the employees, who are regularly appointed on the post. It has been submitted that in a trap which was carried out at Amirgadh Check Post, it has been categorically found that these respondents have aided and abetted the commission of crime which has resulted into filing of First Information Report before the Palanpur Police Station under the provisions of the Prevention of Corruption Act. Since there is ample material found against the respondents with regard to their involvement, the authority had to initiate appropriate step against the respondent as the said episode took place within a very brief period of their contractual service.
5.1 Ms.Manisha Lavkumar Shah, learned Government Pleader, has further vehemently contended that while discontinuing their employment, adequate opportunities have been extended to them and Page 15 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 hence, the action cannot be said to be in violation of principles of natural justice. It has been contended further that in a criminal case, after thorough investigation, even the charge- sheet has also been submitted prima facie finding out a case against the respondents and the said case is pending. It has been submitted that the employment on which the respondents were engaged, was purely on contractual basis and the terms of appointment were clearly indicating the manner in which the respondents are to be discontinued. Apart from this, even these respondents have assigned their duties to their subordinate staff and have not acted with full responsibility.
5.2 To substantiate the above contention, learned Government Pleader has invited the attention to the office order dated 17.5.2013 with respect to one employee, namely, Shri Chetan Jayantilal Rajgor and similar order with respect to another respondent and has pointed out that the terms of employment explicitly make it clear that contract employees are not subjected to any regular departmental inquiry contemplated under the separate Rules meant for the regularly appointed confirmed employee. It has been submitted that in the office order it has been specifically observed in Paras.3 and 4 reflecting on Page-30 in compliance of Letter Patent Appeal No.1596 of 2019 that their appointment is purely on contractual basis at a fixed monthly salary for a period of 5 years and also subject to pending SLP before the Apex Court. With open eyes, these employees have accepted terms of their appointment and as such, now they cannot ask for compliance of the Rules Page 16 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 which are otherwise meant for regular confirmed employees.
5.3 It has further been pointed out that in Para.9 of the appointment order, it has been specifically observed that the terms of the appointment would be applicable to them which are specifically observed in the Government Resolution dated 4.6.2009 which is already attached with respective appointment letters. It has been further contended that while abiding by the terms of the appointment, a specific undertaking was also given by these respondents and as such, their services are bound by the terms of the resolution. It has been pointed out that Condition Nos.2, 5, 7, 9 and 10 are also to be taken note of and these terms are specifically acknowledged by these respondents to be abided by and are undisputedly applicable to them. Condition Nos.12 and 13 also sufficiently make it clear about the status of their employment.
5.4 Learned Government Pleader has pinpointed specifically the Condition No.13(3) which clarifies that the Rules which are applicable to Government employees will be made applicable to them only after they are given regular appointment on completion of the tenure. Condition No.14 also clearly spells out that in case of misconduct as well, as a part of principles of natural justice, one month's notice or the pay in lieu thereof would suffice to put an end to the contractual appointment.
5.5 Ms.Manisha Lavkumar Shah, learned Government Pleader, then submitted that the show cause notice was given by the Commissioner of Page 17 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 Transport, State of Gujarat on 22.7.2014 in case of one Chetan Jayantilal Rajgor, one of the respondents and in similar way, it was issued in respect of other employee. The show cause notice has specifically pointed out. as to why their services shall not be discontinued in terms of Government Resolution dated 4.6.2009 which is applicable to their case. The show cause notice has been served upon both the employees and in response thereto, the replies have been submitted by these two employees and after considering their detailed replies, the Authority has even thought it fit to give personal hearing and complied with principles of natural justice. It is only after such detailed compliance, a decision is taken by the Authority to put an end to the contractual employment and as such, the action cannot be said to be de-hors the principles of natural justice. In terms of their appointment, according to learned Government Pleader, they are estopped from contending that they are required to be dealt with as if they are confirmed Government employees.
5.6 Ms.Manisha Lavkumar Shah, learned Government Pleader, has further contended vehemently that full-fledged departmental inquiry is not to be conducted in a contractual employment where the terms are governed by the different resolution. According to learned Government Pleader, the terms of the employment cannot be substituted or tinkered with in extraordinary jurisdiction of this Court. The learned Single Judge has committed a gross error in construing the contractual employment in a different manner and equated with the regular employment and thus, has observed that since full-fledged inquiry has Page 18 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 not been conducted, the action is not just and proper.
5.7 To strengthen the submission, learned Government Pleader has drawn our attention to several documents in addition to the show cause notices and the relevant statements of the persons connected with the incident in question and after referring to those statements and the material, ultimately it has been suggested that this is not a fit case in which full scale departmental inquiry will have to be conducted when they are under the contract of employment on a fixed salary. It has been submitted that even the appointment itself is made subject to outcome of the SLP before the Apex Court and so long as that decision is not taken, these respondents cannot claim anything beyond their terms of employment which have been accepted with open eyes. When there is sufficient compliance of principles of natural justice, the termination reflects no perversity or arbitrariness in exercise of power in dealing with the respondents and when there is sufficient material about the involvement of the respondents, there is hardly any case made out by the respondents to seek the relief which is otherwise not permissible. The relevant Rules have been observed clearly by the Authority and as such, no case is made out by the original petitioners. As a result of this, the error which has been committed by the learned Single Judge deserves to be corrected by quashing and setting aside the impugned orders. It has further been submitted that the judgments which have been relied upon are on a different contextual background of facts and hence, cannot be applied as a straitjacket formula. These Page 19 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 employees i.e. respondents cannot be equated with the regular Government employees so long as they are employed on contract basis and, therefore, there is hardly any necessity of conducting a regular full scale departmental inquiry. Resultantly, the appeals are requested to be allowed by quashing and setting aside impugned orders passed by the learned Single Judge and dismiss the writ petitions.
6. To meet with the stand taken by State - Appellant, initially Shri Yatin Oza, learned Senior Counsel, assisted by Shri Gaurav Mehta, learned counsel for respondent No.1, has vehemently contended that there is no error committed by the learned Single Judge in passing the orders. On the contrary, it has been submitted that whenever any action is based upon a misconduct, a detailed full scale inquiry will have to be undertaken while taking action even if an employee is on a contractual basis. Learned Senior Counsel has reiterated that this is nothing but a free hand and a licence is given to the Authority to sack the contractual appointment at any point of time at the sweet will of the Authority, if such powers are allowed to be executed. According to Shri Oza, this contractual employment itself is an exploitation on the part of State Authority and as such, no error is committed by the learned Single Judge.
6.1 Shri Yatin Oza, learned Senior Counsel has further submitted that these respondents are appointed by way of regular recruitment mode on the posts which were vacant and sanctioned and as such, simply because they are appointed on a fixed salary on the contract basis, they cannot Page 20 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 be branded as mere contractual employees. On the contrary, this contractual appointment itself is de-hors the public policy and no public employment can be given by way of contract and this is nothing but a sheer act on the part of Authority to exploit the respondents. According to Shri Oza, if the recruitment is made under the policy and if that policy is contrary to the relevant Recruitment Rules then, such employment itself is nothing but a dishonest exercise of power by the Authority and as such, simply because these respondents have been employed on contractual basis, they cannot be deprived of the benefit of relevant Rules which are usually made applicable to the Government employees. It has been submitted that it is not the case of the Authority that the respondents are not appointed through the regular mode of employment. Their selection is through the Public Service Commission and regular process. As a result of this, when the Recruitment Rules do not provide such kind of contractual appointment, there is hardly any case made out by the appellant - State Authority to assail the orders.
6.2 Shri Yatin Oza, learned Senior Counsel, has further submitted that here is a case in which there is a clear instance of misconduct serious in nature alleged against the respondents and as such, they cannot be summarily dealt with without conducting any full scale departmental inquiry. On the contrary, there is a mechanism provided under the Gujarat State Civil Services Classification and Recruitment (General) Rules, 1967 to deal with an employee whenever any misconduct is alleged. Here, the action taken is de-hors the Rules. As a result of this, the Page 21 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 appeals lack merits and the same deserve to be dismissed.
6.3 According to Shri Yatin Oza, Article 311 of the Constitution of India requires to be appropriately interpreted while dealing with the present issue. As a result of this, since summary inquiry is foreign to constitutional mandate, the discontinuance of the respondents has rightly been dealt with by the learned Single Judge. The reliance which has been placed by the learned Single Judge on the decision delivered by the Apex Court has a clear applicability, which has rightly been appreciated. Several decisions have been relied upon by learned Senior Counsel to strengthen the submissions and has vehemently contended that this is a clear case in which the Authority has arbitrarily dealt with and merely on the basis of inferences, the service tenure has been curtailed as it is violative of Articles 14 and 16 of the Constitution of India. Simply issuance of show cause notice and the examination of explanation in summary form is not recognized in law. Hence, since the foundation of the action is alleged misconduct, full scale departmental inquiry ought to have been conducted. Simply because in the ACB case, a charge-sheet has been submitted, the same would not be a ground for the Authority to deviate from the regular mode of departmental inquiry. According to Shri Oza, there is no distinguishing feature in regular Government employee and the respondents. Non- compliance of the Rules and the procedure related to departmental inquiry are the basis on which the impugned action is not sustainable in the eye of law. The learned Single Judge has rightly appreciated the overall view of the Page 22 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 matter and upon thorough examination, has found that the action is not sustainable in the eye of law. Accordingly, there is no error committed which calls for any interference.
6.4 Shri Oza, learned Senior Counsel, in support of his case, has placed reliance upon following decisions:
[1] A decision rendered in Special Civil Application No.10928 of 2014, decided on 29.9.2014.
[2] A decision rendered in Civil Appeal No.18510 of 2017, decided on 13.11.2017.
[3] A decision rendered in Letters Patent Appeal No.1349 of 2015, decided on 22.3.2016.
[4] A decision rendered in Civil Appeal No.10956 of 2016, decided on 14.11.2018.
[5] A decision rendered in Letters Patent Appeal No.189 of 2018, decided on 20.2.2018.
[6] A decision rendered in Letters Patent Appeal No.841 of 2019, decided on 15.4.2019.
7. In addition to this, Shri Shalin Mehta, learned Senior Counsel, assisted by Shri Jit Patel, learned counsel for respondent No.1 in Letters Patent Appeal No.1597 of 2019, has reiterated that these respondents have been recruited through the public advertisement and the process is conducted by Public Service Commission and their selection is based on similar line in which any other regular employee is selected. The only distinguishing feature is Page 23 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 that their terms of appointment are sightly different. But that would not deprive these respondents from being treated equally from those regular employees and as such, the Authority was under an obligation to comply with Discipline Rules framed by the Government. Shri Shalin Mehta has further submitted that looking to the regular nature of appointment of these respondents, since the procedure is similar, though they are appointed on a contractual basis, they will have to be treated either as probationers or regular employees, especially while dealing with them on the issue of misconduct. By citing some of the decisions of the Apex Court, a contention is tried to be substantiated. It has been submitted that whenever employees are to be dealt with on account of their alleged misconduct, there is no difference whether they are recruited either under the contractual basis or on the regular recruitment. The scheme of recruitment is framed under the Government Resolution and as such, so long as the final verdict is not delivered by the Apex Court, these employees cannot be singled out. By drawing attention to relevant provisions of the Gujarat Civil Services (Discipline and Appeals) Rules, 1971, Shri Mehta has submitted that Section 1(c) does not make any difference in clarifying the status of employees either as probationer, temporary or other kind of employee. So long as these Rules are operative by way of Government Resolution, no different mode of recruitment can be found out and no Government Resolution can have the effect of truncating the statutory provision. That being so, depriving the respondents from full scale departmental inquiry itself is an arbitrary act on the part of Authority which has Page 24 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 been rightly dealt with by the learned Single Judge. As a result of this, the appeals lack merits and deserve to be dismissed.
7.1 Shri Shalin Mehta, has reiterated and substantially adopted the submissions made by Shri Yatin Oza, learned Senior Counsel and submitted that since action is de-hors the Rules, not on the touchstone of Articles 14 and 16 of the Constitution of India and also not in close conformity with the principles of natural justice, there is hardly any scope for State Authority to agitate against the order passed by the learned Single Judge.
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.Page 25 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022
C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 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, Page 26 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 "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 Page 27 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 given and non-injurious terminology is used."
(Emphasis supplied)(Para 9) 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) 5.8 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 Page 28 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 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 Page 29 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 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 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.".
Page 30 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 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."
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 Page 31 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 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 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 Page 32 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 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 Page 33 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 appropriate charge, conducting it in accordance with the natural justice.
6.2 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 Page 34 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 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 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 Page 35 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 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.
10. 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 Page 36 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 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."
8.5 In the instant case, while passing the first impugned order dated 26.9.2014 on the basis of show cause notice and reply given by the petitioner to the show cause notice, the District Development Officer, Patan in the termination order has Page 37 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 categorically observed that though the petitioner has completed 5 years service as Panchayat Sahayak, considering the serious allegations levelled against him, he cannot be regularized in the service and hence his services are required to be terminated, which would indicate that pursuant to the show cause notice, no departmental inquiry was carried out and yet the order of termination was passed on the basis of allegations levelled against the petitioner.
However, though discussed in detail about the allegations levelled against the petitioner without there being any conclusion that the allegations levelled against the petitioners are proved by simply taking note of serious allegations levelled against the petitioner he was terminated and the said order was confirmed in the appeal as well. Therefore, this Court is of the view that the order of termination is a stigmatic one. Hence, both the impugned orders dated 26.9.2014 and order dated 6.5.2015 passed by the appellate authority are stigmatic in nature inasmuch the respondents were required to hold full-
fledged departmental inquiry before passing such Page 38 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 orders. Admittedly, in the instant case, no full-
fledged inquiry was held against the petitioner and only by following summary procedure, the services of the petitioner are terminated. Hence, the impugned order dated 26.9.2014 and order passed in appeal dated 6.5.2015 are required to be quashed and set aside.
8.6 However, in the case of Chetan Jayantilal Rajgor (supra), the learned Single Judge while quashing the order of termination granted consequential relief by directing the authorities to reinstate the petitioner for a period upto making of the total original period fixed for his employment as per the order of appointment, meaning thereby the relief which was granted to the petitioner was to permit him to complete the actual term of 5 years, which was as per the appointment order. In the instant case, the petitioner has already worked for more than 5 years. It is also undisputed fact that even after working for more than 6½ years, the petitioner's case was not recommended by the District Page 39 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022 C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 Development Officer by giving a certificate that the petitioner's work was found to be satisfactory.
Therefore, the petitioner's appointment continued to remain on the same terms and conditions, which were there at the time of his appointment. Considering the fact that the petitioner has already served for a period of more than 5 years, any order of reinstatement would create further complications about the term of service left out. Hence, I do not deem it appropriate to order reinstatement of the petitioner.
8.7 However, considering the fact that the order of termination is quashed as the same is found stigmatic and is passed without holding full-fledged departmental inquiry. Since the aforesaid order is quashed, the petitioner is held eligible and entitled for Government job in future and if the petitioner is found to be eligible and meritorious, then the petitioner may not be denied the appointment only on the ground that earlier services of the petitioner was terminated.
Page 40 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022C/SCA/15460/2018 JUDGMENT DATED: 29/11/2022 9 With the aforesaid observations and directions, the petition is partly allowed. Impugned order dated 26.9.2014 terminating the services of the petitioner and order dated 6.5.2015 passed by the appellate authority confirming the order dated 26.9.2014, are hereby quashed and set aside. The petitioner is held to be eligible for Government job in future without there being any stigma. Rule is made absolute to the aforesaid extent only. However, there shall be no order as to costs.
Sd/-
(NIRZAR S. DESAI,J) P. SUBRAHMANYAM Page 41 of 41 Downloaded on : Sat Dec 24 00:44:20 IST 2022