Gujarat High Court
Hitesh Jivabhai Chaudhary vs State Of Gujarat on 5 February, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.19064 of 2022
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
YES
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HITESH JIVABHAI CHAUDHARY
Versus
STATE OF GUJARAT & ANR.
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Appearance :
MR KARAN SHAH & MR. JIT P PATEL for the Petitioner.
MR SANJAY UDHWANI, AGP for the Respondents.
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 05/02/2025
ORAL JUDGMENT
1. With the consent of parties, the matter is taken up for final disposal today itself. Hence, Rule. Learned Assistant Government Pleader waives service of rule on behalf of respondents.
2. By way of this petition, the petitioner has challenged the order of termination dated 5.2.2022 passed by respondent No.2 and has prayed for quashing and setting aside all consequential and subsequent orders pursuant to the order dated 5.2.2022 and has prayed for a direction to the respondents to reinstate the petitioner to the post of Junior Clerk Class III with all consequential Page 1 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined benefits, as according to the petitioner the order of termination is stigmatic.
3. The facts stated by learned advocate Mr. Jit Patel are as under :-
3.1 That the petitioner was appointed on 25.5.2018 on the post of Junior Clerk Class-III on a fixed pay of Rs.19,950/- for a period of five years. The petitioner joined the services on 25.5.2018 and thereafter, FIR was registered against the petitioner on 19.1.2022 under Sections 7 and 13(1)(b) of the Prevention of Corruption Act, 1988. Pursuant to the same, the petitioner was arrested and was granted bail as well. In view of registration of FIR, straightway, termination order dated 5.2.2022 was passed whereby elaborately stating details about registration of the FIR, the petitioner's services were terminated. Hence the present petition.
4. Mr. Jit Patel, learned advocate appearing for the petitioner relied upon the latest decision of this Court dated 04- 10.12.2024 in case of Rakeshkumar Bhursingbhai Katara V/s. State of Gujarat in Special Civil Application No. 22588 of 2022 and allied matters and submitted that while allowing the petitions of those petitioners, this Court has elaborately considered the decision of this Court right from the decision in the case of State of Guajrat V/s. Chetan Jayantilal Rajgor dated 24.07.2020 passed in Letters Patent Appeal No. 1596 of 2019 and other decisions including the latest decision of the Hon'ble Supreme Court in case of Swati Priyadarshini V/s. State of Madhya Pradesh and others reported in 2024 SCC Online SC 2139 and therefore, Page 2 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined present case is squarely covered by the above decision and therefore, the petitioner's termination order is bad in law and the same is deserves to be quashed and set aside and the petitioner is required to be reinstated on his original post.
5. Mr. Sanjay Udhwani, learned AGP appearing for the respondent - State has placed on record affidavit-in-reply on behalf of respondent No.2. The same is taken on record. On the basis of the said affidavit-in-reply, he vehemently opposed the petition and submitted that the petitioner was found to have indulged into misconduct which would dis-entitle him from serving any further. He submitted that in view of registration of FIR against the present petitioner for an offence under the Prevention of Corruption Act, the present petitioner's services are rightly terminated. Learned AGP also submitted that there are Special Leave Petition pending before the Hon'ble Supreme Court whereby the Hon'ble Supreme Court has vide interim order dated 17.09.2024 passed in case of State of Gujarat V/s. Hiralben Navinchandra Dholakiya in Special Leave Petition Civil (Diary) No. 37835 of 2024 has stayed the impugned order of this Court. Similarly, the Hon'ble Supreme Court has vide interim order dated 14.12.2023 passed in the case of The State of Gujarat V/s. Ashishbhai Chandrakantbhai Solanki in Special Leave Petition (Civil) No. 23698 of 2022 has stayed the impugned order of this Court whereby the order of stigmatic termination was quashed by this Court and she therefore, prayed for dismissal of this petition. 5.1 He further submitted that the authority has taken into consideration the Government Resolution dated 16.02.2006 r/w Government Resolution dated 20.10.2015 and Government Page 3 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined Resolution dated 28.03.2016 and by virtue of powers flowing from the provisions of above Government Resolutions, the order of termination was passed and therefore, the same is absolutely just, legal and proper.
6. In rejoinder, learned advocate Mr. Jit Patel submitted that the submission in respect of pendency of Special Leave Petition before the Hon'ble Supreme Court has already been considered by this Court in its judgment in case of Rakeshkumar Bhursingbhai Katara (supra) and as far as the submission about the powers to terminate the services of the petitioner flowing from Government Resolution dated 16.02.2006 r/w Government Resolution dated 20.10.2015 and Government Resolution dated 28.03.2016 are concerned, the same would be absolutely insignificant in light of catena of decisions by the Hon'ble Supreme Court holding that once the termination order is found to be stigmatic then in that case the termination order must go and therefore, the petition is required to be allowed.
7. I have heard the learned advocates for the parties and perused the record. I have also considered the impugned order of termination whereby the petitioner's services are terminated. On perusal of above order, I found that there is a reference about the FIR registered against the present petitioner under the Prevention of Corruption Act and as the entire order is based on the above premises on registration of FIR against the present petitioner, prima facie, the impugned order can be said to be a stigmatic order.
8. This Court had on occasion to consider the similar set Page 4 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined of facts in respect of stigmatic termination and while dealing with this aspect, this Court by considering series of decisions on the subject and more particularly, in the case of Rakeshkumar Bhursingbhai Katara (supra) by taking into consideration the recent decision of the Hon'ble Supreme Court in case of Swati Priyadarshni (Supra) observed in paragraphs Nos.14 to 18 as under :-
"14. Further, very recently, the Hon'ble Supreme Court in the case of Swati Priyadarshini v. State of Madhya Pradesh and others, 2024 SCC Online SC 2139 (Supra) has while allowing the appeal preferred by the appellant, made the following observations in paragraphs 29 to 36 as under :-
ANALYSIS, REASONING AND CONCLUSION :
29. Having bestowed our anxious consideration to the lis, we find that the interference of the Division Bench with the judgment dated 20.06.2017 of the learned Single Judge, has to be interdicted at our hands.
30. A bird's eye views reveals thus. The appellant topped the revised Merit List, leading to her appointment as an APC. While serving as such, complaint(s) against her, in brief, were that she was not performing her duties, primarily on two counts -
(i) not punctual in attending to her duties, and; (ii) not correctly reported with regard to the events in Page 5 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined the hostel. As against these, the appellant's response, via her replies to the SCNs, is that she, inter alia, frankly admits to being late on occasion, but to compensate for her late-coming, she used to sit till late evening in the office for completion of work. On this count, the Respondents cannot be faulted. It is no justification for the appellant to contend that she was late, but worked late/overtime such that the work did not suffer. However, as borne out from the record, with regard to the hostel, charge was given to her for only 5/6 days. As such, in our view, it cannot be said that within such a short period, the appellant, without fully understanding the attendant issues, could have straightaway given any opinion/report on the hostel. Be that as it may, this case turns on our findings infra.
31. Clause 4 of the RGPSM's General Service Conditions under the heading "Resignation/Termination" provides as below :-
"Persons working on contract can be terminated with one month notice if found inefficient. In case of persons found indulged in undesirable activities amounting to degradation of dignity of Mission, Mission Director shall reserve right to terminate him/her with immediate effect."
(emphasis supplied)
32. Perusal of Clause 4 makes it clear that Page 6 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined ordinarily, for inefficiency, one month's notice is sufficient. The Clause also makes it clear that if someone is found to have indulged in "undesirable activities", the Mission Director was competent to terminate such person's services "with immediate effect". We are afraid that the Respondents have placed themselves in a Catch-224 situation. If the order dated 30.03.2013 falls within the former part of Clause 4, as contended by the respondent, on the premise that it is a case of termination simpliciter and non-stigmatic, then one month's notice was required to be issued to the appellant, which admittedly was not done in the instant matter. Arguendo, were the order dated 30.03.2013 to be seen as falling under the latter part of Clause 4, it would be stigmatic, as made clear by the use of the words "indulged in undesirable activities amounting to degradation of dignity of Mission".
33. In either of the above-noted eventualities, the Impugned Judgment would have to necessarily be set aside. Nevertheless, let us examine the reasoning of the Division Bench, which opined that the order is non-stigmatic and simpliciter non-renewal of contract. The order dated 30.03.2013 was, quite obviously, the culmination of the process set into motion by the two SCNs, which has been overlooked by the Division Bench. The mere non-mention of the background situation or the SCNs in the order dated 30.03.2013 cannot, by itself, be determinative of the Page 7 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined nature of the order. As held by this Court in Samsher Singh v State of Punjab, (1974) 2 SCC 8315 and Anoop Jaiswal v Government of India, (1984) 2 SCC6, the form of an order is not its final determinant and the Court can find out the real reason and true character behind terminating/removing an employee. Moreover, the Impugned Judgment also does not deal with Clause 4. Interestingly, this Clause also escaped the attention of or/and was not brought to the notice of the learned Single Judge either.
34. It is profitable to refer to what five learned Judges of this Court laid down in Parshotam Lal Dhingra v Union of India, 1957 SCC OnLine SC 5:
"28. The position may, therefore, be summed up as follows : Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India [(1953) 1 SCC 420: (1953) SCR 655]. Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2), as has also been held by this Court in Shyam Lal v. State of Uttar Pradesh [(1955) 1 SCR 26]. In either of the two abovementioned cases the termination of the Page 8 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla, C.J., has said in Shrinivas Ganesh v. Union of India [LR 58 Bom 673 : AIR (1956) Bom 455] wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the Page 9 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Article 311, for it operates as a forefeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an indelible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if Page 10 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "terminate" or "discharge" is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the Page 11 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined constitutional right of the servant."
(emphasis supplied)
35. We would only be adding to verbosity by multiplying authorities. In view of the above dictum, it is clear that the Respondents did not comply with Clause 4 - either the first part or the second part thereof. The order dated 30.03.2013 does visit the appellant with evil consequences and would create hurdles for her re further employment.
36. In view of the discussions made herein above, the Impugned Judgment is quashed and set aside. The judgment of the learned Single Judge dated 20.06.2017 stands revived, however with a modification to the extent that the appellant shall be entitled to all consequential benefits including notional continuation in service at par with other similarly situated employees, but with the back wages restricted to 50%. Further, in view of the long passage of time, we deny liberty to the respondents to proceed afresh against the appellant as was granted by the learned Single Judge. However, this will not preclude the respondents from taking action against the appellant in accordance with law in futuro apropos her official duties on the post in question, if the situation so arises. The exercise be completed within three months from the date of receipt of this judgment.
15. Considering the observations made in Page 12 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined the above two decisions, the order of termination was held to be stigmatic, in respect of allegations levelled against the concerned employee in each of the petitions, there was no full-fledged inquiry held and yet by assigning reasons which would cast stigma upon the petitioners, the services of the petitioners was terminated. In the instant case also, some irregularities are alleged in MGNREGA Scheme against each of the petitioners and without holding departmental inquiry, on the aforesaid ground, the petitioners' services were terminated. Therefore, I have no hesitation in holding that the termination of services of each of the petitioners are stigmatic in nature and the same is passed without holding any full-fledged inquiry and, therefore, the impugned orders terminating the services of the petitioners are quashed and set aside and the petitions stand allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
16. The respondents are directed to reinstate the petitioners on their original posts which they were holding prior to their termination upto the term of their appointment, as if the order of termination was never passed. The reinstatement of the petitioners as directed above shall be for the remaining period of their contractual employment upto making of total original period fixed for their employment as per their order of appointment. Further, it will be open for the respondents, if they so Page 13 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined deem fit, to initiate a full-fledged inquiry against each of the petitioners by complying with the principles of natural justice and as a result of quashment of the termination orders in each of the petitions, if they are entitled to any monetary benefits for the interregnum period, the same shall be considered notionally for taking into consideration any benefits which may flow on account of service conditions of the petitioners.
17. As far as backwages is concerned, learned AGP Ms. Nirali Sarda as well as learned advocate Mr. Nisarg Jain appearing for the respective respondents have opposed the said prayer by stating that the petitioners have not worked actually in past since their termination. In support of her contention, she relied upon the decision of the Division Bench of this Court in the case of Bhaveshkumar Rameshkumar Kanara v. State fo Gujarat decided on 17.10.2023 in Letters Patent Appeal No.659 of 2023 wherein while denying the monetary benefits for the interregnum to the appellant, the Division Bench has observed in paragraph 5.1 to 5.4 as under :-
"5.1 The decision of this Court in Kaminiben Thakorbhai Patel Vs. State of Gujarat, which was Letters Patent Appeal No.761 of 2021, decided on 24.12.2021, arose in the similar and nearly identical set of facts.
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NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined 5.1.1 While not granting the backwages, the court observed thus in para 8, "As far as the aspect of grant of back wages to the appellants is concerned, while on behalf of the appellants, the relief of back wages was pressed by submitting that the back wages have to follow automatically when the reinstatement is directed upon holding the termination illegal, certain conspicuous aspects stare at the face of the controversy in this case fir considering the issue of back wages. Not only that long time has elapsed since the appellants are ordered to be reinstated by this order and the principle of no work no pay would apply. What becomes decisive in the matter on this score is the factum that the appellants were appointed for five years initially and during such five years their services came to be terminated by passing the impugned order. They are reinstated as per the above direction for the remainder period providing further that all other conditions in respect of nature of their appointment would operate. In such circumstances, the question of grant of back wages does not arise. The appellants will not be entitled to any back wages."
5.2 The petitioner herein was a fixed term employee, he has been reinstated for the remainder term of five years subject to further orders which may be passed by the authorities for extension, if any, in the term of employment. When the initial tenure of the petitioner was fixed, that very aspect would render grant of backwages not permissible.
5.3 It would be incongruent to grant monetary benefits and the backwages while reinstating a fixed term employee, inasmuch as granting such benefit would amount to giving salary beyond total term of five years for which the appointment is made." Page 15 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025
NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined
18. Considering the above observations made by the Division Bench of this Court, it is held that none of the petitioners are entitled to any backwages as in view of the fact that the petitioners are directed to be reinstated and State is also directed to ensure that the petitioners are allowed to perform their duties for the remaining period of their contractual appointment."
9. In view of above, as the present order of termination is also found to be stigmatic order by this Court, the facts of the present petition is also squarely covered by the decision of this Court in case of Rakeshkumar Bhursingbhai Katara (supra) and accordingly, the impugned order of termination dated 5.02.2022 is required to be quashed and set aside and the same is accordingly, quashed and set aside. Resultantly, the petitioner is directed to be reinstated. However, the reinstatement would be only till remaining period of his appointment on his original post which the petitioner held prior to his termination, as if the order of termination is never passed. Remaining period of his contractual employment upto making of total original period fixed for his employment as per his original order of appointment.
10. Further if the respondents, if they so deem fit, it will be open for them to initiate a full-fledged inquiry against the petitioner by complying with the principles of natural justice and as a result of quashing the order of termination in respect of present petitioner, if he is entitled to any monetary benefits, the same shall be considered notionally by the State Government. However, there Page 16 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025 NEUTRAL CITATION C/SCA/19064/2022 JUDGMENT DATED: 05/02/2025 undefined shall not be any entitlement of back-wages to the petitioner.
11. With the aforesaid observation and direction, the petition is allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
12. The petitioner shall be reinstated in remaining period and thereafter, it is left to the discretion of the authority whether to continue the petitioner upon completion of contractual period by placing the petitioner in regular pay scale or not to extend his services as the same depends upon the satisfactory service rendered by the petitioner as per the appointment order itself.
Direct service is permitted.
(NIRZAR S. DESAI,J) SAVARIYA Page 17 of 17 Uploaded by R.N. SAVARIYA(HC00179) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:57:37 IST 2025