NEUTRAL CITATION
C/LPA/728/2022 ORDER DATED: 10/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 728 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 14589 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
In
R/LETTERS PATENT APPEAL NO. 728 of 2022
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STATE OF GUJARAT
Versus
JITENDRA SAVAJIBHAI SORATHIYA
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Appearance:
MR JAYNEEL PARIKH, AGP for the Appellant(s) No. 1,2,3
SUDHANSHU A JHA(8345) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 10/08/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. By way of this Letters Patent Appeal under Clause 15 of the Letters Patent, appellants- original respondents have assailed the judgment and order passed by learned Single Judge on 3.10.2019 in Special Civil Application No.14589 of 2019.
2. Background of facts which has given rise to present Letters Patent Appeal is that original petitioner, i.e. respondent herein, was appointed as Surveyor Class-III and was initially posted at Surat Branch. Petitioner was appointed on 10.11.2014 Page 1 of 13 Downloaded on : Sun Sep 17 00:53:28 IST 2023 NEUTRAL CITATION C/LPA/728/2022 ORDER DATED: 10/08/2023 undefined for a fixed period of 5 years on a fixed salary and appointment was purely on contractual basis. Services of the petitioner came to be terminated on account of reason of his involvement in criminal case at a relevant point of time, which was registered before DCB Police Station, Surat on 2.4.2019 for offences punishable under Sections 406, 420, 465, 466, 467, 468, 471, 472, 474, 120(B) and 114 of Indian Penal Code and was arrested on 13.4.2019. Said involvement was treated by authority as violation of one of the conditions of contractual appointment and in view of the guidelines and keeping in view the Government Resolution, services of original petitioner were put to an end on 21.5.2019 by the Chief Town Planner, Gandhinagar and it is this order of termination which was made the subject matter of challenge in the main writ petition. Said petition came up for consideration before learned Single Judge on 3.10.2019 and by a detailed order, after hearing both learned advocates, learned Single Judge keeping in view the proposition of law was pleased to allow the petition with certain riders and it is against this order, present Letters Patent Appeal under clause 15 of the Letters Patent has been filed.
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3. Learned Assistant Government Pleader Mr. Jayneel Parikh appearing on behalf of appellants has submitted that order passed by learned Single Judge is not in consonance with the settled proposition of law. Original petitioner was purely on a contractual basis and moment there appears to be any violation of condition of employment, it is always open for the authority to terminate the services. On the contrary, same can be even without service of notice. According to Mr. Parikh, guidelines have been prescribed by Government Resolution on 28.3.2016 and when petitioner's involvement was in a serious commission of crime, as stated above, right of termination cannot be curtailed by learned Single Judge by allowing the petition and as such order being suffering from vice of non-application of mind, be set aside.
4. Learned AGP Mr. Jayneel Parikh has further submitted that reasons assigned by learned Single Judge are basically based on proposition of law laid down by Hon'ble the Apex Court, but facts of said cases which have been relied upon are distinct than what are there on the hand. Hence, looking to the Page 3 of 13 Downloaded on : Sun Sep 17 00:53:28 IST 2023 NEUTRAL CITATION C/LPA/728/2022 ORDER DATED: 10/08/2023 undefined factual background of present case as well, it is desirable in the interest of justice that serious error which has been committed by learned Single Judge be corrected in the interest of justice. No other submissions have been made.
5. As against this, learned advocate Mr. Sudhanshu Jha appearing on behalf of respondent herein, namely original petitioner, has vehemently contended that order passed by learned Single Judge is perfectly justified in view of the settled proposition of law and while exercising the discretion, learned Single Judge has applied his mind on the controversy and based upon settled proposition of law laid down by Hon'ble the Apex Court, discretion is exercised and as such when said discretion has been exercised in a just and proper manner after assigning proper reasons, impugned order cannot be construed in any manner as perverse or suffering from any infirmity. When that be so, possible view adopted by learned Single Judge cannot be disturbed in the interest of justice, especially when learned Assistant Government Pleader has not been able to point out any distinguishable circumstance or material which might have been lost sight of. Hence, well-reasoned order deserves no Page 4 of 13 Downloaded on : Sun Sep 17 00:53:28 IST 2023 NEUTRAL CITATION C/LPA/728/2022 ORDER DATED: 10/08/2023 undefined interference in respectful submission of learned advocate.
6. Having heard learned advocates appearing for the parties and having gone through the material on record, it prima facie appears from the tenor of order that basic controversy involved in the petition has been clearly gone into by learned Single Judge and while coming to the conclusion, specific case laws have been relied upon, which are relevant to the issue and as such, when such is the exercise, a well-reasoned order in our considered view does not call for any interference. To what extent, application of mind is reflected in the order which we may justify here by quoting relevant observations contained in the impugned order:-
"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 pass- books, 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.
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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 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 Page 6 of 13 Downloaded on : Sun Sep 17 00:53:28 IST 2023 NEUTRAL CITATION C/LPA/728/2022 ORDER DATED: 10/08/2023 undefined 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 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 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 Page 7 of 13 Downloaded on : Sun Sep 17 00:53:28 IST 2023 NEUTRAL CITATION C/LPA/728/2022 ORDER DATED: 10/08/2023 undefined 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) 5.5.1 Having 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 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 Page 8 of 13 Downloaded on : Sun Sep 17 00:53:28 IST 2023 NEUTRAL CITATION C/LPA/728/2022 ORDER DATED: 10/08/2023 undefined 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 full- fledge 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.
6. In light of the aforesaid principles and the position of law on the aspect, if the facts of the present petition are re-visited, the petitioner joined his duties pursuant to his selection on 17.11.2014 as a Surveyor in the Surat District for a fixed period of five years as stated in the appointment order. His tenure was to come to an end as per appointment order, on 16th November, 2019. However, in view of the aforementioned impugned termination order dated 21.5.2019, it was put to an end in the middle of the five years.
6.1 Looking at the contents and the recitals mentioned in the impugned order about filling of the F.I.R., it was stated in the impugned order that since the petitioner was involved in the criminal act and thereby since committed misconduct, his services were liable to be terminated.
6.2 Thus, it was clear from the bare reading of the recitals in the impugned order that the foundation of the impugned order was the alleged involvement of the petitioner in the crime mentioned in the FIR. By very nature of the contents of the impugned order, the order could be treated as stigmatic. The order was passed without compliance of principles of natural justice. Since the allegation of misconduct was the foundation for the penal action taken against the petitioner, above discussed position of law Page 9 of 13 Downloaded on : Sun Sep 17 00:53:28 IST 2023 NEUTRAL CITATION C/LPA/728/2022 ORDER DATED: 10/08/2023 undefined would operate to grant relief to the petitioner."
7. In view of the aforesaid conclusion, which has been arrived at and the observations contained in the order, the order requires no interference in our considered opinion. But, then further fact which has also been brought in the order to justify the ultimate conclusion by learned Single Judge is also worth quoting hereunder and as such, we are constrained to quote hereunder the relevant conclusion:-
"7. As a result of the above, the impugned order dated 21.5.2019 passed by the respondent No.2 would be liable to be set aside since it was founded on the allegations of misconduct and is stigmatic in nature but passed without compliance of natural justice and without holding any full-scale department inquiry. Furthermore, the petitioner's appointment being on fixed period of five years, it is clarified that the reinstatement would be for the remainder period which would make up the total period of five years fixed period, for which he was appointed.
8. As a consequence of above discussion and reasons, the impugned order dated 21.5.2019 passed by the respondent-2 terminating services of the petitioner, is hereby set aside. The respondents are directed to reinstate the petitioner within a period of eight weeks from the date of receipt of this order on the original post 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.
8.1. The respondents are not precluded from proceeding against the petitioner in accordance with law."Page 10 of 13 Downloaded on : Sun Sep 17 00:53:28 IST 2023
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8. In view of the aforesaid discussion and in view of the facts which are existing on record, we are of the opinion that while exercising discretion, learned Single Judge has not committed any error much less the error of law which may call for any interference.
9. Yet another circumstance which we cannot ignore is that in similar set of circumstances, when another Letters Patent Appeal is also brought to our notice by learned advocate appearing on behalf of the respondent herein and keeping the said proposition and the observations contained in that decision of Letters Patent Appeal No.633 of 2022, there appears to be no error committed by learned Single Judge and apart from that, issue which is stated to be pending before Hon'ble the Apex Court has also been dealt with and as such remotely, we are not able to construe that order is suffering from any vice of non- application of mind and when that be so, there is hardly any reason for us to substitute the view adopted by learned Single Judge since there is no distinguishable material brought before us by the other side. Hence, this is not a fit case in which any Page 11 of 13 Downloaded on : Sun Sep 17 00:53:28 IST 2023 NEUTRAL CITATION C/LPA/728/2022 ORDER DATED: 10/08/2023 undefined substitution view is permissible or possible. Hence, appeal lacks merit.
10. At this stage, we are also of the opinion that law on the issue of exercising appellate jurisdiction is well propounded by Hon'ble the Apex Court and since we have considered the same, we deem it proper to quote hereunder the relevant observations contained in paragraph 5 of the decision reported in Management of Narendra & Company Private Limited v. Workmen of Narendra & Company reported in (2016) 3 SCC 340:
"5. Once the learned Single Judge having seen the records had come to the conclusion that the industry was not functioning after January 1995, there is no justification in entering a different finding without any further material before the Division Bench. The Appellate Bench ought to have noticed that the statement of MW 3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court appeal, on a finding of fact, unless the Appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief."
11. In view of the aforesaid discussion and in view of the circumstances which are brought to our notice, we are of the clear opinion that no case is made out to call for any Page 12 of 13 Downloaded on : Sun Sep 17 00:53:28 IST 2023 NEUTRAL CITATION C/LPA/728/2022 ORDER DATED: 10/08/2023 undefined interference. As a result of this, Letters Patent Appeal being merit-less stands DISMISSED and as a consequent thereof, impugned order passed by learned Single Judge dated 3.10.2019 in Special Civil Application No.14589 of 2019 is hereby confirmed.
12. Since main appeal is dismissed, pending Civil Application does not survive for further consideration and hence, same is also DISPOSED OF.
Sd/-
(ASHUTOSH SHASTRI, J) Sd/-
(DIVYESH A. JOSHI,J) OMKAR Page 13 of 13 Downloaded on : Sun Sep 17 00:53:28 IST 2023