NEUTRAL CITATION
C/LPA/1267/2023 ORDER DATED: 07/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1267 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 18528 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 1267 of 2023
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STATE OF GUJARAT & 1 other(s)
Versus
SAGAR CHATURBHAI BHESANIYA
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Appearance:
Mr. Sanjay Udhwani, Asst.GOVERNMENT PLEADER for the
Appellant(s) No. 1,2
MR. JIT P PATEL(6994) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 07/10/2023
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
1. This appeal under Clause 15 of the Letters Patent is filed at the instance of the State of Gujarat, the challenge is against the oral judgment order dated 6.10.2022 passed by the learned Single Judge in Special Civil Application No. 18528 of 2021.
2. The respondent herein is the original writ applicant who had approached this Court under Article 226 of the Constitution of India challenging the order of termination dated 02.11.2021 passed by the present appellant- State of Gujarat. The bone of contention raised before the learned Single Judge was that the aforesaid order of termination was stigmatic inasmuch as the same has been passed based on an FIR lodged against the writ applicant without conducting any departmental proceedings. The learned Single Judge noticing the facts of the case b y Page 1 of 7 Downloaded on : Tue Oct 10 20:39:37 IST 2023 NEUTRAL CITATION C/LPA/1267/2023 ORDER DATED: 07/10/2023 undefined placing reliance upon the decision dated 15.04.2019 passed in Letters Patent Appeal No.841 of 2019 as well as in the case of State of Gujarat & Ors. vs. Chetan Jayantilal Rajgor (2021 (2) GLR 1211) had quashed and set aside the order of termination by observing as under:
"9. Having considered the decisions and the question of law that the Courts have decided, there is no reason therefore not to agree with the submissions of learned counsel for the petitioner inasmuch as the order that has been passed terminating the services of the petitioner could not have been so passed on the allegation of misconduct without holding full scale inquiry as laid down by the decisions referred to herein above.
10. Accordingly, the order impugned dated 02.11.2021 passed is quashed and set aside. The petitioner is ordered to be reinstated on the same terms and conditions on which he was initially appointed. In other words, since the order of termination is set aside, the respondents are directed to take back the petitioner in service on his original post as if the order of termination was not passed. For the intervening period, the petitioner shall not be entitled to back-wages. The respondents are however not precluded from proceeding against the petitioner in accordance with law. This order shall be complied within a period of four weeks from the date of receipt of copy of this order.
11. The petition is accordingly allowed. Rule is made absolute. No order as to costs. Direct Service is permitted. "
3. We have heard learned Assistant Government Pleader Mr. Sanjay Udhwani and Mr. Jeet Patel, learned advocate for the respondent - original petitioner. Learned advocates for the respective parties have submitted that the issue in hand in the present appeal is squarely covered by the decision of this Court in the case of Chetan Jayantilal Rajgor (supra), judgment dated Page 2 of 7 Downloaded on : Tue Oct 10 20:39:37 IST 2023 NEUTRAL CITATION C/LPA/1267/2023 ORDER DATED: 07/10/2023 undefined 24.07.2020 passed in Letters Patent Appeal No.1596 of 2019 in Special Civil Application No.4439 of 2017 and allied matters. In the aforesaid matter before the learned Single Judge, the writ applicants have challenged the validity of the order of termination, who were facing charge of illegal gratification in complaint registered with the concerned ACB Police station. The contention raised was raised before the learned Single Judge that the respondent State Authorities have violated Articles 14 & 16 of the Constitution of India as the authorities have without conducting fully scale departmental inquiry on the foundation of the alleged misconduct have proceeded to terminate the writ- applicants, resulting into curtailment of their service tenure. The learned Single Judge exhaustively dealt with the submission of the respective parties and arrived at a conclusion that since the order of termination was punitive in nature and amounted to stigmatic which ought to have been preceded by the regular inquiry against the writ applicants in respect of allegation leveled against them could not be sustained, even though being appointed on fixed tenure, the order of termination was quashed and set aside.
4. The Division Bench in the case of Chetan Jayantilal Rajgor (supra) observed as under:
"8.1. In the cognate matter also, almost similar observations are visible and as such, we do not propose to over burden the present order. These observations if to be examined in the background of present fact situation, the same are found to be just and proper. It appears here that the original petitioners were dealt with by issuance of show cause notice with respect to serious charges levelled against them and the notice was given stating as to why in terms of their appointment, they may not be Page 3 of 7 Downloaded on : Tue Oct 10 20:39:37 IST 2023 NEUTRAL CITATION C/LPA/1267/2023 ORDER DATED: 07/10/2023 undefined 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.
8.2. 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.
8.3. The bone of contention of appellants - State authorities is that since the original petitioners are employed on a contract basis and fixed pay, the Department is not under an obligation to conduct a detailed full-scale departmental inquiry. Now, this contention has been the subject matter of scrutiny on earlier occasion before a Coordinate Bench in Letters Patent Appeal No.189 of 2018 between Vadodara Municipal Corporation v. Manishbhai Nayanbhai Modh, decided on 20.2.2018. The relevant observations contained in the said decision are reflecting in Para.4.1 which are also based upon the decision of the Apex Court and in consonance with the provision of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The said observations have also been considered at length by the learned Single Judge which are reflecting in Para. 5.7 of the impugned order.
9. Yet in another decision again by the Division Bench of this Court rendered in Letters Patent Appeal No.841 of 2019 between Rahul Aydanbhai Vak v. State of Page 4 of 7 Downloaded on : Tue Oct 10 20:39:37 IST 2023 NEUTRAL CITATION C/LPA/1267/2023 ORDER DATED: 07/10/2023 undefined 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 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.
12. Additionally, we are also of the opinion that these Letters Patent Appeals have arisen out of the learned Single Judge's decision. The scope of Letters Page 5 of 7 Downloaded on : Tue Oct 10 20:39:37 IST 2023 NEUTRAL CITATION C/LPA/1267/2023 ORDER DATED: 07/10/2023 undefined Patent Appeal is well defined by the Apex Court in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company, reported in 2016 LawSuit (SC) 94. Relevant Para.5 of the said decision is reproduced hereinafter :
"Once the learned Single Judge having seen the records and 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.
Hence,we see no other distinguishing circumstance pointed out by the learned counsel for the appellants and as such, we are in complete agreement with the view taken by the learned Single Judge."
5. The learned Assistant Government Pleader has been unable to dispute the aforesaid legal position settled by the Coordinate Bench. However, it is submitted that the aforesaid decision of the Division Bench has been challenged by the State Government before the Hon'ble Supreme Court, which is registered as SLP (C) No.013220 of 2020. It is further submitted by the learned Assistant Government Pleader that no order of stay has been granted by the Hon'ble Supreme Court till date. He has, therefore, urged this Court to pass appropriate orders.
6. Considering the undisputed fact which has emerged on Page 6 of 7 Downloaded on : Tue Oct 10 20:39:37 IST 2023 NEUTRAL CITATION C/LPA/1267/2023 ORDER DATED: 07/10/2023 undefined record that the original writ applicant, who was appointed initially for a period of five years as Revenue Talati, Class-III Officer, Mamlatdar office, Surat has been served with the order of termination, without serving any show cause notice, the contents of which is stigmatic on the writ applicant. Such action of the respondent State Authority without adhering to the basic principles of natural justice as well as without following procedure prescribed under the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, deserves to be quashed and set aside. We are of the firm view that no error can be attributed with the approach of the learned Single Judge in allowing the writ petition by quashing and setting aside the order of termination, which was passed without holding any full-scale inquiry as laid down in the aforesaid decision of this Court. Hence, present Letters Patent Appeal fails and is hereby dismissed. Civil Application also stands disposed of in view of dismissal of the Letters Patent Appeal.
sd/-
(N.V.ANJARIA, J) sd/-
(NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 7 of 7 Downloaded on : Tue Oct 10 20:39:37 IST 2023