State Of Gujarat vs Kapil Rasikbhai Jethwa
2021 Latest Caselaw 5681 Guj

      C/LPA/418/2021                                     ORDER DATED: 09/06/2021



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 418 of 2021
          In R/SPECIAL CIVIL APPLICATION NO. 11880 of 2020

                                     With

               CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                                   In
               R/LETTERS PATENT APPEAL NO. 418 of 2021

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                           STATE OF GUJARAT
                                  Versus
                         KAPIL RASIKBHAI JETHWA

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Appearance:
MR DHAVAN JAISWAL, AGP for the Appellant(s) No. 1,2
MR NK MAJMUDAR(430) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
           and
           HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                              Date : 09/06/2021

                          ORAL ORDER

(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)

1. By way of this Letters Patent Appeal, the appellant herein (original respondent authority) has challenged the judgment dated 21.10.2020 passed by the learned Single Judge whereby while allowing the Writ Petition being Special Civil Application No.11880 of 2020, the learned Single Judge set aside the order impugned dated 15.06.2020 passed by the Collector, Navsari in above Special Civil Application and directed the appellant herein to reinstate the respondent herein on the post of Clerk at E-

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Dhara Mamlatdar's office, Navsari Rural 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 and further directed that monetary benefits to be paid to the respondent herein within a period of eight weeks from the date of receipt of the judgment dated 21.10.2020 passed by the learned Single Judge.

1.1 The learned Single Judge further directed that reinstatement of the respondent herein shall be for a period upto making of the total original period fixed for his employment as per order of appointment and also clarified that present appellant authority is not precluded from the proceedings against the present Respondent No.1 in accordance with law.

2. The present appeal is preferred by the original respondents in Special Civil Application who are appellants herein and respondent in this appeal is the original petitioner and hence names of the parties are mentioned in this order as per their status in the petition.

3. The brief facts giving rise to filing of the present appeal are as under:

3.1 The petitioner was appointed as Clerk at Mamlatdar's office, Navsari Rural. His appointment was of contractual nature for a period of five years. After he joined and performed his duties as Clerk, an FIR was registered

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against him and three other persons before ACB Police Station, Navsari. The FIR was numbered as I-C.R.No.2 of 2020. As per the FIR, a raid was carried out on 25.06.2020 wherein accused persons, including the petitioner, were nabbed on 25.06.2020. As per the FIR, the complainant was dealing in mineral (sand) by obtaining permit and for the release of his truck, the petitioner and other accused demanded bribe of Rs.1,10,000/-. As per FIR, initially Rs.10,000/- to Rs.20,000/- out of the aforesaid amount, was paid and remaining amount was to be paid subsequently. It was stated that the accused were acting in collusion with each other.

3.2 Once the FIR was registered on 27.05.2020 within a month thereafter the services of the petitioner came to be terminated by the respondents vide order dated 15.06.2020 without even issuance of any notice by paying one month fixed salary to the petitioner by referring to Rule (3) of Gujarat State Services (Conduct) Rules, 1971 by stating that the petitioner had shown lack of commitment to duty, he was not honest and he had acted in a manner unbecoming of government servant and, therefore, it was not advisable to continue the petitioner in service. As per the appointment order of the petitioner, one of the conditions was that the petitioner could be driven out of service by paying one month salary in lieu of notice and accordingly vide order dated 15.06.2020 the services of the petitioner was terminated.

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3.3 While terminating the services of the petitioner principles of natural justice were not complied with and as the petitioner's services were terminated without even holding full-fledged inquiry, the petitioner challenged the aforesaid order dated 15.06.2020 by way of Special Civil Application No.11880 of 2020.

3.4 After hearing the parties, the learned Single Judge ultimately allowed the petition in the terms stated in forgoing paras.

4. Being aggrieved and feeling dissatisfied with the aforesaid judgment dated 21.10.2015, the respondents in the petition challenged the judgment dated 21.10.2015 by way of present Appeal.

5. Heard learned Assistant Government Pleader Mr.Dhavan Jaiswal for the Appellant State who submitted that appointment of the petitioner was for a fixed monthly salary for a period of five years and was subject to terms and conditions of his appointment order. As per the appointment order, the petitioner's services could be terminated by giving him one month's salary in lieu of notice. According to learned Assistant Government Pleader Mr.Jaiswal, considering the seriousness of allegations levelled against the petitioner in the FIR registered against the petitioner and other persons referred to in forgoing paras, the petitioner's act was a dishonest act and he acted in the manner of unbecoming of a government servant and,

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therefore, as per the conditions stated in the order, the petitioner's services were rightly terminated by referring to Rule 3 of the Gujarat State Services ( Conduct) Rules, 1971 ('the Rules, 1971', for short) as the petitioner had shown lack of commitment and his integrity was doubtful and there were serious charges of illegal gratification against the petitioner and, therefore, such a person with lack of integrity could not have been continued in the department.

6. As against that, learned advocate Mr.N.K.Majmudar, appearing on caveate, for respondent herein (original petitioner) submitted that the impugned order terminating the services of the petitioner dated 15.06.2020 is a stigmatic order. He submitted that the order was passed without giving any opportunity to the petitioner. He submitted that when the impugned order of termination is passed, the same has not been passed on the basis of findings recorded after conducting full-fledged inquiry. According to him, before passing of such order, a regular departmental inquiry ought to have been conducted. He further submitted that the authority did not act in compliance of principles of natural justice and hence order passed by learned Single Judge is absolutely just, legal and proper, and does not call for interference. He accordingly prayed for dismissal of the present Appeal.

7. We have perused the judgment dated 21.10.2020 passed by the learned Single Judge and also perused the material on record of Special Civil Application including the

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appointment order of the petitioner and the Gujarat State Services (Conduct) Rules, 1971 and the relevant provisions thereof.

7.1 While allowing the petition, the learned Single Judge in para:5 onward has elaborately discussed the provisions of law as under:

"5. In Sanjay Bhanubhai Makwana (supra), the facts were similar as could be seen from the contents of paragraph Nos.3 and 3.1 which are reproduced hereunder.

"3. Looking at the impugned order, it mentioned about the F.I.R. having been filed against the petitioner under the provisions of the Prevention of Corruption Act, 1988 at Crime Register No.I-03 of 2014 before ACB Police Station at Valsad. It was alleged that petitioner, along with other persons, was caught while accepting the amount of bribe and that the petitioner was arrested. Thereafter mentioned were condition No.11 in the order of appointment. Condition Nos.11 and 12 of the order of appointment to state that petitioner was liable to be terminated during the fixed period if he was found to have committed serious misconduct or financial irregularity. It was thereafter mentioned that the Gujarat Civil Services (Conduct) Rules, 1971 would not straightway apply to the employee as he was a fixed term employee.

3.1 After detailing the facts of the alleged incident wherein bribe was allegedly accepted by the petitioner, the respondent No.2 authority concluded that the petitioner had committed a misconduct in view of filing of the F.I.R. It was stated that the incident described in the complaint had taken place and that the misconduct committed by the petitioner was serious. According to the respondents, the petitioner was issued notice but he could not convince the authorities about his innocence and no documents were produced which proved innocence. Consequently, the services of the petitioner was terminated. Thus, the termination of

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services of the petitioner was on the footing that the petitioner had committed a misconduct."

5.1 In the aforesaid case also, the petitioner employee was a fixed term employee. Since the order was passed terminating the services on the footing of misconduct not preceded by any inquiry in compliance with the natural justice, the Court allowed the petition and reinstated the petitioner as per the final directions.

5.2 The discussion of law and the reasoning supplied in Sanjay Bhanubhai Makwana (supra) would apply to the present case which is extracted hereinbelow to be treated and adopted as part of the reasoning in support of the present order.

"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 even though 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 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

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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 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 noninjurious terminology is used." (Emphasis supplied) (Para 9)

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

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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 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

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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 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]

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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."

5.8 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 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

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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."

5.3 When the impugned order is considered in light of the above principles and the position of law, it could be well discerned that the event of filing of F.I.R. against the petitioner was treated as the base and it was concluded readily by the respondent authority that the petitioner had committed misconduct for accepting the bribe. It was upon this foundation, the termination was effected. The order was rested on the ground of misconduct and therefore it was stigmatic order, which could not have been passed without a full scale inquiry. 5.4 Decision in Sanjay Bhanubhai Makwana (supra) was confirmed by the Division Bench in Letters Patent Appeal No.493 of 2020 as per order dated 03rd September, 2020. The Division Bench noted that Letters Patent Appeal No.1596 of 2019 and Letters Patent Appeal No.1597 of 2019 decided on 24th July, 2019 squarely covered the point. It may be noted that decision in Sandip Ajitsinh Vaghela v. State of Gujarat being Special Civil Application No.12071 of 2018 decided on 26th February, 2019 had similar facts so also the decision in Imranbhai Anwarbhai Majothi v. State of Gujarat being Special Civil Application No.17872 of 2017. Those petitions were also allowed by this Court. 6. In view of the above reasons and discussion and the position of law obtained, the impugned order being stigmatic and having been passed without compliance of natural justice and without holding of any inquiry, is liable to be set aside. The petition deserves to be allowed.

6. In view of the above reasons and discussion and the position of law obtained, the impugned order being stigmatic and having been passed without compliance of natural justice and without holding of any inquiry, is liable to be set aside. The petition deserves to be allowed.

6.1 The petitioner was fixed term employee who joined duties on 24th April, 2017. His five years term would expire on 24th March, 2022. Therefore while the impugned order will be liable to be set aside and the petitioner would be required to be reinstated, it is clarified that his reinstatement would be for a period which would make up

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the total period of five years which was a fixed period for which the petitioner was appointed."

7.2 Further, the co-ordinate Bench of this Court has also, in case of State of Gujarat and others vs. Chetan Jayantilal Rajgor and another reported in 2021 (2) GLR 1211, while confirming the order passed by the learned Single Judge, in similar facts, observed in paras:8.1 onward, 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 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.

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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 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

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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 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.

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7.3 Similar view has been taken by this Court also while dismissing the Appeal preceded by the State vide order dated 08.06.2021 passed in Letters Patent Appeal No.99 of 2021 as well.

8. In all aforesaid judgments, the entire case law has elaborately been discussed and it is held that in absence of full scale departmental inquiry, services of the delinquent cannot be terminated if the order of termination is found to be stigmatic and hence we are unable to take a different view as the same is based on numerous judgments referred to in those decisions.

8.1 For the reasons recorded above, we do not find any reason to interfere the judgment and order passed by the learned Single Judge in Special Civil Application No.11880 of 2020 dated 21.10.2020, which may require any interference of this Court in exercise of Letters Patent Act. This appeal, therefore, deserves to be dismissed. It is dismissed accordingly. Resultantly, connected Civil Application (for stay) No.1 of 2021 stands rejected.

(R.M.CHHAYA, J)

(NIRZAR S. DESAI,J) MISHRA AMIT V.