State Of Gujarat vs Hiteshkumar Dahyabhai Rathod
2021 Latest Caselaw 5689 Guj

     C/LPA/423/2021                                  ORDER DATED: 09/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 423 of 2021

          In R/SPECIAL CIVIL APPLICATION NO. 19460 of 2019

                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
              In R/LETTERS PATENT APPEAL NO. 423 of 2021
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                             STATE OF GUJARAT
                                   Versus
                      HITESHKUMAR DAHYABHAI RATHOD
==========================================================
Appearance:
MS. JYOTI BHATT AGP for the Appellant(s) No. 1,2,3
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 appellants herein (original respondents) have challenged the judgment dated 08.10.2020 delivered by the learned Single Judge in Special Civil Application No.19460 of 2019 whereby while allowing the petition, the learned Single Judge set aside the order impugned dated 21.11.2017 passed by the Collector, Narmda and directed the appellants herein (original respondents) to reinstate the petitioner (respondent herein) within a period of two weeks from the date of receipt of the judgment and to extend him all consequential benefits viz. pay, allowances

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etc. within a period of four weeks from the date of receipt of the judgment. While allowing the petition, the learned Single Judge clarified that the order passed shall not preclude the competent authority from taking any decision 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 applied for the post of Assistant Clerk pursuant to the advertisement published in the year 2012 by Gujarat Subordinate Services Selection Board ('GSSB', for short) and on clearing the examination held by GSSB, the petitioner was appointed on the post of Assistant Clerk vide appointment order dated 03.10.2012. As the petitioner's appointment was temporary appointment and was subject to terms and conditions contained in the Government Resolution dated 15.06.2004 and 03.03.2005, initially the appointment was for a period of five years and thereafter if the petitioner's services are found to be satisfactory, he would be absorbed in the regular pay-scale against the available vacancy.

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3.2 One of the conditions of the appointment order was that during the period of five years, if the services of the candidate is not found to be satisfactory or there is any misconduct, services of the petitioner would be put to an end, without issuance of any notice.

3.3 After the petitioner joined the services as Assistant Clerk, an FIR came to be lodged against the petitioner for offence punishable under Sections 7, 13 (1) (d) and Section 13(3) of the Prevention of Corruption Act, 1988 on 31.07.2017 with Narmada ACB Police Station being C.R.No.2 of 2017. In the complaint, allegations against the petitioner were in respect of illegal gratification. Pursuant to the said FIR, the petitioner was arrested and thereafter was released on regular bail vide order dated 04.08.2017 passed by the learned District and Sessions Judge, Narmda passed in Criminal Miscellaneous Application No.258 of 2017.

3.4 Upon registration of an FIR on 31.07.2017 against the petitioner, the Collector, Narmda issued a notice to the petitioner stating that the offence committed by the petitioner, prima facie, is a serious offence and looking to the seriousness of the offence, termination of the services of the petitioner is under consideration and hence before termination of service the petitioner was asked to submit his representation with a view to give an opportunity of hearing to the petitioner.

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3.5 Pursuant to the aforesaid notice, petitioner submitted a detailed reply on 31.08.2017, however, without considering the representation tendered by the petitioner in its true perspective and without conducting full-fledged inquiry, Collector, Narmdada terminated the services of the petitioner vide order dated 28.11.2017.

4. Aforesaid order of termination dated 28.11.2017 was subject matter of challenge before the learned Single Judge in Special Civil Application No.19460 of 2019. After hearing the parties, the learned Single Judge ultimately allowed the petition in the terms stated in forgoing para.

4.1 Being aggrieved and feeling dissatisfied with the aforesaid judgment dated 08.10.2020, respondents in the petition (appellants herein) challenged the aforesaid judgment by way of present Appeal.

5. Heard learned Assistant Government Pleader Ms.Jyoti Bhatt 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 reading with relevant Government Resolutions, the petitioner's services could be terminated by giving him one month's salary in lieu of notice. According to learned Assistant Government Pleader

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Ms.Bhatt, considering the seriousness of allegations levelled against the petitioner in the FIR registered against the petitioner as referred to in forgoing paras, the petitioner's act was a dishonest act and he acted in a manner of unbecoming of a government servant and, 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.

5.1 According to learned Assistant Government Pleader Ms.Bhatt, in such cases, if the appointment order, relevant Government Resolutions and Rule 3 of 'the Rules, 1971' are ready together, the services of the petitioner could be terminated even without full-fledged inquiry as the principles of natural justice can be said to have complied with by giving the petitioner an opportunity to put forward his version and defend his case and, therefore, learned Assistant Government Pleader submitted that the learned Single Judge has committed an error by allowing the Writ Petition and passing the impugned judgment looking to the gravity of misconduct committed by the petitioner - respondent herein.

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6. We have perused the judgment dated 08.10.2020 passed by the learned Single Judge and also perused the material on record of Special Civil Application including the 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:12 onward has elaborately discussed the provisions of law as under:

"12. Clearly, while exercising the powers and taking recourse of condition No.14A of the government resolution dated 28.3.2016, respondent No.3 passed an order dated 28.11.2017 terminating the service of the petitioner. Undisputably, such action is without conducting any full-fledged enquiry as contemplated under the provisions of the statutory rules. Read the contents of the order dated 28.11.2017, it clearly suggest that the stigma is writ large. Clearly, the misconduct was not the motive, but was precisely the foundation for passing the order dated 28.11.2017. Pertinently, the order dated 28.11.2017 has been passed in contravention of the principles of natural justice inasmuch as, no full-fledged enquiry as required by the statutory rules, much less any enquiry into the charge was held before passing of the order dated 28.11.2017, terminating the service of the petitioner. Such action on the part of respondent No.3 is against the settled principle enunciated by the Apex Court as well as this Court as regards compliance of principles of natural justice before taking such action, if the order is stigmatic in nature. Besides, in such an eventuality, irrespective of the status of the employee, viz. contractual or temporary, provisions of the Discipline and Appeal Rules of 1971 ought to have been adhered to.

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13. At this juncture, it is useful to refer to the judgment of the Apex Court in the case of SBI vs. Palak Modi reported in (2013)3 SCC 607. The Apex Court while considering the earlier judgments has held that if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority is susceptible to nullification, on the ground of violation of the rules of natural justice. In the case before the Apex Court, the issue was regarding use of unfair means by the private respondents and the action taken by the bank. The said misconduct constituted foundation of the decision taken by the bank for terminating the service of the private respondent therein. The Apex Court held that the foundation for passing the termination order was misconduct, and the same could not have been passed without holding a full-fledged enquiry.

14. In another decision of the Apex Court in the case of Dipti Prakash Banerji vs. Satyendra Nath Bose National Centre for Basic Sciences, reported in (1999) 3 SCC 60 it has been held that though the order terminating the appellant therein was innocuous, but the order was referring to other orders, which entailed civil consequences. The Apex Court while referring to the earlier judgment in the case of Bishan Lal Gupta vs. State of Haryana, reported in (1978)1 SCC 202 observed that an ordinary enquiry of a show-cause might be sufficient for the purpose of deciding whether the probationer could be continued, but where the findings regarding misconduct are arrived at without conducting a regular departmental enquiry then the termination order will be vitiated.

15. The coordinate bench of this Court in the case of Chiragbhai Mahasukhbhai Pandya rendered in SCA No.11530 of 2018, has observed in paras 6.1 to 6.4 as under:

"6.1 As recorded above, the impugned order proceeded on the basis of the First Information Report filed against the petitioner for the offences under the provisions of the Prevention of Corruption Act to conclude that by accepting the amount of bribe, petitioner had committed

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misconduct. The order also mentions contention of the First Information Report to state that when the complainant was going on with his wife on 12th April, 2018 for the purpose of cutting the trees, the petitioner - delinquent snatched away the shovel and when the complainant requested to return the same, the petitioner was asked for bribe of Rs.500/-. It was mentioned in the order of termination that the petitioner had committed misconduct under the Gujarat Civil Services (Conduct) Rules, 1971 and since the petitioner was on a fixed pay, on the ground of taking and accepting bribe, his services were liable to be terminated. Stigma was cast against the petitioner which terminating his services as per the impugned order.

6.2 Thus, it was clear from the bare reading of the recitals in the impugned order that the foundation of the order of termination was alleged events taking bribe and registration of First Information Report for such alleged offence. The authority passing the order of termination readily concluded that the petitioner has committed offence of taking bribe and thus had misconducted under the disciplinary rules. The order proceeded to terminate services with retrospective effect on the ground that misconduct as above was committed. Since the allegations of misconduct were the foundation for penal action taken against the petitioner, the above discussed principles of law would apply to grant relief to the petitioner.

6.3 While the impugned order would be liable to be set aside and the petitioner would be liable to be reinstated, since the petitioner's appointment was for a fixed term and was to come to an end at the end of five years on 13th July, 2022 as provided in the initial order, reinstatement which is being directed as per the present order shall be operative upto the said period to make up the total period of five years as per the conditions of the original order of appointment dated 14th July, 2017. This does not imply non-employment of the petitioner thereafter.

6.4 As a result of above discussion and reasons, the

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impugned order dated 23rd April, 2018 passed by Deputy Conservator of Forests is hereby set aside. The respondents are directed to reinstate the petitioner on the original post of Bit Guard with continuity of service and with salary/wages to be paid for interregnum, as well as with consequential benefits as if the order of termination was never passed. Reinstatement of the petitioner directed as above shall be upto 13th July 2022 so as to make up the total period of employment of five years as per the conditions of appointment. Resultant monetary benefits arising by virtue of the present order shall be paid to the petitioner within a period of eight weeks from the date of receipt of the present order."

16. Similar view has been taken in another judgment in the case of Sandip Ajitsinh Vaghela vs. State of Gujarat rendered in SCA No.12071 of 2018.

17. The Division Bench of this Court in the case of State of Gujarat vs. Chetan Jayantilal Rajgor (Supra), while confirming the judgment of the learned single Judge, dismissed the appeal. In the case before the Division Bench, the contention was raised on behalf of the State Government that while discontinuing service of an employee concerned, adequate opportunities were extended and hence, the action cannot be said to be in violation of principles of natural justice. It was a specific case of the State Government before the Division Bench that the show cause notice was issued requiring the employee concerned to show cause as to why his service should not be discontinued in terms of the government resolution dated 4.6.2009 and it is only after considering the detailed reply filed by the employees concerned followed by a personal hearing that the authorities took a decision of putting an end to the contractual employment. It was contended before the Division Bench that such action cannot be termed to be de hors principles of natural justice. It was also the case of the State Government that full-fledged departmental enquiry are not to be conducted in a contractual employment inasmuch as, the contractual employment are governed by resolutions issued by the State Government from time to time. The Division Bench, while not accepting the aforesaid contentions

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raised by the State Government, affirmed the view taken by the learned single Judge, observing in paras 6, 7, 8, 9 and 11 as under:

"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.

7. This view which has been taken by the learned Single Judge, to which we are also in agreement, stands fortified by few decisions by the Division Bench of this Court which have already been relied upon by the learned Single Judge.

8. 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

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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.

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

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material, we are not satisfied with the submissions made by learned counsel for the appellants in both these appeals."

18. From the aforesaid enuncitation, it is clear that whenever any charge is levelled and action is found to be stigmatic, a full-scale departmental enquiry deserves to be undertaken irrespective of whether the delinquent was a regular employee or contractual employee on a fixed salary. The principles enunciated by the coordinate bench as well as by the Division Bench of this Court apply on all fours to the facts of the present case inasmuch as, the allegation against the petitioner is that by accepting the bribe, he has committed an offence under provisions of the Act of 1988 and thereby has not maintained absolute integrity and has acted in defiance of clause (i) of sub-rule (1) of Rule 3 of the Conduct Rules of 1971. The aforesaid propositions of law have not been disputed by the learned Assistant Government Pleader on principle as well as on facts.

19. Quite apart, while passing the order, respondent No.3 has relied upon a report of Director, Anti Corruption Bureau, copy whereof, undisputedly, has not been provided to the petitioner. On this count as well, the order dated 28.11.2017 is in breach of the principles of natural justice inasmuch as, the contents of the report of the Director of the Anti Corruption Bureau has also weighed with respondent No.3 while passing the order dated 28.11.2017. The edifice on which the order dated 28.11.2017 has been passed, is the commission of offence by the petitioner under provisions of the Act of 1988 which clearly has the element of stigma. In view of the aforementioned discussion, respondent No.3 was not justified in passing the order dated 28.11.2017 passed by respondent No.3 deserves to be quashed and set aside and is hereby quashed and set aside."

7.2 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.

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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.19460 of 2020 dated 08.10.2020, 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.