Gujarat High Court
Jitendrakumar Rameshbhai Patel vs State Of Gujarat on 11 January, 2021
Bench: S.H.Vora
C/SCA/13282/2019 Modification of Judgment dtd. ORDER
23/12/2020 in R/SCA/13282/2019
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13282 of 2019
[On note for speaking to minutes of order dated 23/12/2020 in
R/SCA/13282/2019 ]
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JITENDRAKUMAR RAMESHBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR. JIT P PATEL(6994) for the Petitioner(s) No. 1
GOVERNMENT PLEADER(1) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE S.H.VORA
Date : 11/01/2021
ORAL ORDER
Considered the averments made in the speaking to
minutes note.
In the order dated 23.12.2020, in para - 5.1, the words
"Gujarat Public Service Commission" is substituted and
read as "Gujarat Subordinate Services Selection Board."
The note for speaking to minutes is disposed of
accordingly.
(S.H.VORA, J)
SATISH
C/SCA/13282/2019 Present Judgment is modified vide JUDGMENT
Order dtd. 11/01/2021 in
R/SCA/13282/2019
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13282 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE S.H.VORA
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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JITENDRAKUMAR RAMESHBHAI PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR. JIT P PATEL(6994) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP (1) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE S.H.VORA
Date : 23/12/2020
ORAL JUDGMENT
1. Rule. Learned AGP Mr. Rohan Shah waives service of rule
on behalf of the respondents. With the consent of learned
advocates appearing for the respective parties, present
petition is finally heard.
C/SCA/13282/2019 Present Judgment is modified vide JUDGMENT
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2. By way of this petition under Article 226 of the
Constitution of India, the petitioner has made following prayer
in terms of para 16(B):
"16(B) To issue a writ of mandamus and /or
certiorari and/or other writ, direction or order
quashing and setting aside the impugned order
dated 17.12.2016 (vide Annex-G) passed by
respondent no.2 for termination of services of the
petitioner for his post."
3. Heard learned advocate Mr. Jit Patel for the petitioner and
learned AGP Mr. Rohan Shah for the respondent State.
4. The grievance ventilated in the present petition is such
that the termination order dated 17.12.2016 annexed at
Annexure G to the petition came to be passed without
conducting full scale departmental inquiry and it came to be
passed by following brief procedure, in as much as show cause
notice was only issued to the petitioner.
5. Brief undisputed facts leading to filing of present petition
can be stated thus : -
5.1 The petitioner was appointed on 29.09.2012 pursuant to
regular process of selection undertaken by the Gujarat Public
Service Commission and he was appointed to the post of
Revenue Clerk. The appointment of the petitioner was on the
basis of fixed pay for a period of five years on ad-hoc basis.
The petitioner had joined services on 26.09.2012. On account
of registration of FIR against the petitioner on 22.12.2015 with
Mehsana ACB Police Station for the commission of offence
under Section 7, 12, 13 of the Prevention of Corruption Act, the
termination order dated 17.12.2016 came to be passed by the
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respondent authority.
6. It is a matter of fact that the petitioner was issued show
cause notice dated 19.03.2016, whereby, he was informed to
show cause as to why services of the petitioner be not
terminated for breach of conditions contained in the Gujarat
Civil Service Rules, 1971 and Resolution of 2009. The
petitioner replied said notice suitably. It is a matter of fact that
no inquiry was held, no charge was framed against the
petitioner and without putting the petitioner to knowledge of
allegation which he was to precisely answer and without
holding full scale departmental inquiry against the petitioner in
accordance with natural justice, the impugned order is passed.
7. Per contra, learned AGP would submit that as per
resolution of the year 2009, more particularly conditions nos.9
- 13 and condition of order of appointment, the petitioner was
issued notice dated 19.03.2016, to which the petitioner
submitted his reply on 04.04.2016. Thus, since the petitioner is
appointed on contract basis, the Gujarat State Service Rule
(Conduct) 1971 is not applicable to the petitioner and his
services is governed by Resolution of 2009. It is submitted that
there is no need of conducting full scale departmental inquiry.
Since the petitioner is found involved in the offence under
section 7, 12, 13 of the Prevention of Corruption Act, and it
being misconduct, impugned order is passed which requires no
interference at the hands of this Court under Article 226 of the
Constitution of India.
8. The position of law in relation to effecting termination of
service of an employee, even if on the fixed pay, by passing a
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stigmatic order without following principles of natural justice
came to be discussed by the Division Bench in the decision
rendered in Letters Patent Appeal No.1596 of 2019 and allied
matters dated 24.07.2020, wherein, the Division Bench while
confirming the reasons and analysis of the decision rendered in
the case of Chetan Rajgor v/s. State of Gujarat rendered in SCA
No.4439 of 2017, in the background of facts as discussed by
the learned Single Judge, has made observations in para 5, 6
and 8, which is reproduce as under:
"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.
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
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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,
"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
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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)
5.4 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
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
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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 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
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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.".
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 had arisen where also the
petitioner was Junior Clerk employed on temporary
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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 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
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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 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
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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 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.
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 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."
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9. In light of the aforesaid principles of law settled by
Division Bench and looking to the undisputed facts of the
present petition, the petitioner was appointed on 29.09.2012
as Revenue Clerk for a fixed period of 5 years as stated in the
appointment order and his tenure was to come to an end as
per appointment order, on 29.09.2017. However, in view of
impugned order dated 17.12.2016, the petitioner's service was
put to an end after about four and half years.
10. Thus, it is clear from the bare reading of the contents
made in the termination order that the foundation of the
impugned order was alleged misconduct of demanding and
accepting bribe of Rs.1,000/-, for which afore-mentioned F.I.R.
was registered. Thus, the order in question could be treated as
stigmatic. It is a matter of fact that the termination order was
passed without following principles of natural justice and
without holding any full scale departmental inquiry and
therefore, the position of law as reproduced herein above
would operate to grant relief in favour of the petitioner.
11. Since the impugned order will be liable to be quashed
and petitioner will be liable to be reinstated, it is clarified that
the petitioner's reinstatement would be for the remainder
period which would make up the total fixed period of five
years, for which he was appointed.
12. In view of above fact situation and position of law,
impugned order dated 17.12.2016 passed by the respondent
No.2 - Collector, Mehesana is hereby quashed and set aside
and the respondents are directed to reinstate the petitioner
within a period of four weeks from the date of receipt of this
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order on the original post with similar service conditions to
make up total five years period as per the original appointment
period. It is further made clear that the petitioner shall not
entitled to any monetary benefits or salary for the intervening
period and the respondents are not precluded from proceeding
against the petitioner in accordance with law for the alleged
misconduct.
13. The petition is allowed accordingly. Rule is made absolute
to the aforesaid extent. Direct service is permitted through e-
mail.
(S.H.VORA, J)
SATISH
