Nayankumar Madhukant Joshi vs State Of Gujarat
2021 Latest Caselaw 12178 Guj

     C/SCA/6830/2021                             JUDGMENT DATED: 24/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6830 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.S. SUPEHIA

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       NAYANKUMAR MADHUKANT JOSHI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR RAKESH R PATEL(3239) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP for the Respondent Nos.1 and 2
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                             Date : 24/08/2021

                             ORAL JUDGMENT

1. Rule. Mr.Rohan Shah, learned Assistant Government

Pleader waives service of notice of Rule for and on behalf of

respondent nos.1 and 2.

C/SCA/6830/2021 JUDGMENT DATED: 24/08/2021

2. The present writ petition has been filed seeking a

direction for quashing and setting aside communication dated

15.04.2021 issued by the Office of the Collector, Porbandar.

3. Brief facts leading to the filing of the present petition are

as under:

3.1 By a resolution dated 06.03.2012 issued by the Revenue

Department, Gujarat State, post of Law Officer was created to

assist the office of Collector of respective districts of Gujarat

State. So far as Porbandar District is concerned, one post of

Law Officer is sanctioned.

3.2 Accordingly, for the sanctioned post of the Law Officer in

Porbandar District Collector Office, a public advertisement

was issued to invite applications from the respective eligible

applicants, wherein, after due selection process undertaken by

the respondent-authorities including interview, the petitioner

was appointed as a Law Officer in the office of Collector, vide

an order dated 01.06.2017 issued by the Collector, Porbandar,

respondent no.2 herein, against the sanctioned post.

3.3 After end of the contractual period of 11 months, once

again, the petitioner was appointed for the same post by an

C/SCA/6830/2021 JUDGMENT DATED: 24/08/2021

order dated 12.06.2018 passed by the Collector, Porbandar on

the same terms and conditions for a further period of 11

months. Similarly, by an order dated 16.07.2019 passed by

the Collector, Porbandar, the petitioner has been appointed on

the same terms and conditions for a further period of 11

months. Thereafter, by an order dated 10.08.2020 passed by

the Collector, Porbandar, the petitioner has been appointed on

the same terms and conditions for a further period of 11

months.

3.4 The petitioner received a show-cause-notice dated

28.12.2020 issued by the Chitnis to Collector, Porbandar,

whereby the petitioner was directed to reply within three days

as to why the service of the petitioner may not be put to an

end.

3.5 With regard to the above referred show-cause-notice, the

petitioner immediately, by his letter dated 28.12.2020, filed

his reply and stated therein that it is the primary

responsibility of the concerned head of concerned department

to provide requisite factual details relating to the litigation.

3.6 With respect to the letter of the petitioner dated

06.03.2021 for renewal of his contract, office of the Collector,

C/SCA/6830/2021 JUDGMENT DATED: 24/08/2021

Porbandar, respondent no.2 herein, issued a letter dated

15.04.2021, whereby request of the petitioner came to be

rejected by stating therein that the office of the Collector has

decided to appoint Law Officer on contractual basis by issuing

a fresh advertisement.

4. Mr.Rakesh R. Patel, learned advocate for the petitioner

has submitted that the impugned communication is required

to be set aside since the respondent-authorities, by issuing

advertisement, has flouted the settled law that an ad hoc

employee cannot be replaced by an ad-hoc employee. Further,

he has submitted that the show-cause-notice was issued to

the petitioner on 28.12.2020 for the alleged violation of the

Gujarat Civil Service (Conduct) Rules, 1971 and hence, the

petitioner's service could not have been ended by the

respondents without holding a departmental inquiry. In

support of his submissions, he has placed reliance on the

judgment of the Division Bench dated 24.06.2020 passed in

Letters Patent Appeal No.1596 of 2019. He has further

submitted that the respondents may be directed to reinstate

the petitioner in service.

C/SCA/6830/2021 JUDGMENT DATED: 24/08/2021

5. In response to the aforesaid submissions, Mr.Rohan

Shah, learned Assistant Government Pleader for respondent

nos.1 and 2 has submitted that in fact, since the contract of

the petitioner was to end on 17.05.2021, the department did

not think it fit to hold the departmental inquiry. He has

submitted that an advertisement was issued on 31.03.2021

for filling up the posts and the petitioner has also applied

pursuant to the said advertisement and his case can be

considered pursuant to his application filed in view of the

advertisement dated 31.03.2021. He has further submitted

that the petitioner, being a contractual employee, has no right

to the post and therefore, writ petition may be rejected.

6. Heard Mr.Rakesh Patel, learned advocate for the

petitioner and Mr.Rohan Shah, learned Assistant Government

Pleader for respondent nos.1 and 2.

7. The facts, as narrated hereinabove, are not in dispute.

The only issue, which falls for consideration for this Court, is

whether the respondents were justified in terminating the

services of the petitioner. The petitioner, being a contractual

employee, has no right to the post, but it appears that his

service has been terminated or the contract has not been

C/SCA/6830/2021 JUDGMENT DATED: 24/08/2021

renewed because of the alleged misconduct. The show-cause-

notice dated 28.12.2020 issued by the respondent -

authorities to the present petitioner reveals that the petitioner

was called upon to tender his explanation with regard to the

misconduct/negligence in his duties. The show-cause-notice

specifically refers that the petitioner has violated Rule 3 (1)(2)

of the Gujarat Civil Services (Conduct) Rules, 1971. There are

certain allegations also mentioned in the show-cause-notice

against the petitioner for which explanation was called for and

it is stated that why his contract should not be ended. Thus, it

appears that the contract of the petitioner was not renewed in

view of the alleged irregularity mentioned in the show-cause-

notice. At this stage, it would be appropriate to refer to the

observations made by the Division Bench of this Court in the

judgment dated 24.07.2020 passed in Letters Patent Appeal

No.1596 of 2019. The Division Bench, while dealing with a

similar issue in the cases of Contractual Employees and their

terminations on the premise of misconduct, has observed

thus:

"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 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

C/SCA/6830/2021 JUDGMENT DATED: 24/08/2021

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 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

C/SCA/6830/2021 JUDGMENT DATED: 24/08/2021

appellants in both these appeals."

Thus, the Division Bench has held that once the 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. In the present case also, the petitioner was

discontinued from service on premise of misconduct as the

show-cause-notice dated 28.12.2020 would suggest. It is also

not in dispute that the petitioner had applied for the post in

question during the pendency of this writ petition in order to

see that he may secure fresh contractual appointment. It is

pertinent to note that the respondents have issued an

advertisement dated 31.03.2021 calling upon applications for

appointing the Law Officer on contractual basis for 11

months. Such an action of the respondent-authorities itself

would be against the settled proposition of law to the effect

that ad hoc employee cannot be replaced by such employee.

Be that as it may. But the application of the petitioner seeking

appointment pursuant to the advertisement dated 31.03.2021

would be futile exercise since it is very candidly stated by the

learned advocate appearing for the petitioner that the

petitioner has already become overage.

C/SCA/6830/2021 JUDGMENT DATED: 24/08/2021

8. Under the circumstances in light of the aforesaid facts

and in view of the law enunciated by the Division Bench, the

only option which is left with the respondent-authorities is of

conducting a regular departmental inquiry pursuant to the

show-cause-notice dated 28.12.2020. The respondent-

authorities shall reinstate the petitioner in service only for the

purpose of holding the departmental inquiry. It is further

clarified that the consequential benefits shall be subject to the

outcome of the final decision taken by the disciplinary

authorities/respondent-authorities. The entire process shall

be completed within a period of three months from the date

of receipt of a writ of this judgment.

9. The present petition is allowed accordingly. Rule is

made absolute to the aforesaid extent.

(A. S. SUPEHIA, J)

rakesh/