Gujarat High Court
State Of Gujarat vs Ashishbhai Chandrakantbhai ... on 22 November, 2021
Bench: Aniruddha P. Mayee
C/LPA/336/2021 ORDER DATED: 22/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 336 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 7904 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 336 of 2021
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STATE OF GUJARAT
Versus
ASHISHBHAI CHANDRAKANTBHAI SOLANKI
==========================================================
Appearance:
MS URMILA DESAI AGP for the Appellant(s) No. 1,2,3
MR MOUSAM R YAGNIK(3689) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 22/11/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE)
1. The present Letters Patent Appeal is filed against order
dated 27.10.2020 passed in Special Civil Application No.7904 of
2020.
2. The brief facts leading to filing of the present appeal
are as follows:-
2.1 The respondent was appointed as a clerk in the office of
appellant No.3 - Collector, Surendranagar for a fixed period of five
years. He was later transferred to Mamlatdar Office, Sayla.
2.2 On 14.03.2016, an FIR being C. R. No.2 of 2016 came
to be registered against the respondent with Anti Corruption
Bureau Police Station, Surendranagar for the offence under the
Prevention of Corruption Act, 1988. It was alleged that the
C/LPA/336/2021 ORDER DATED: 22/11/2021
respondent in collusion with one another person who was also
accused, had demanded Rs.25000/- as bribe for sanction of the well
in the land of the complainant. Accordingly, raid was arranged,
respondent was arrested and bail application came to be rejected.
2.3 Since the respondent was in custody for more than 24
hours and further, since he was on fixed pay for fixed period,
appellant No.3 terminated his contractual service on 29.04.2016.
Aggrieved, the respondent preferred the departmental appeal
before the appellant No.2 which also came to be dismissed by order
dated 04.03.2020. Aggrieved, the respondent preferred Special
Civil Application No. 7904 of 2020 which came to be allowed by the
impugned order herein.
2.4 Aggrieved by the impugned order, the appellants herein
have preferred the present Letters Patent Appeal.
3. Learned Assistant Government Pleader Ms. Urmila
Desai appearing for the appellants submitted that the respondent
was initially appointed for a period of five years and hence, there
was no need for conducting the departmental inquiry as per the
appointment order itself. It was submitted that the respondent was
found to be involved in the corruption case which amounts to moral
turpitude and such a person cannot be allowed to hold the post
which is in direct public interaction. It was also submitted that a
bare reading of the appointment order explicitly makes it clear that
the contractual employees are not subjected to undergo any
departmental inquiry as contemplated under the relevant rules
which are meant for the regularly appointed employees. It was
further submitted that order dated 29.04.2016 is an order
simpliciter and cannot be construed to be stigmatic. It was
submitted that the rules empower the authority to terminate the
C/LPA/336/2021 ORDER DATED: 22/11/2021
services of the respondent on the basis of the FIR registered
against him. Hence, it was prayed that the Letters Patent Appeal be
allowed and the impugned order be set aside.
4. It is not disputed that the respondent was not given any
show cause notice nor any departmental inquiry was held by the
appellants before terminating the services of the respondent on the
ground of his involvement in the corruption case.
5. The Hon'ble Apex Court in its decision in the case of
Anoop Jaiswal v/s. Government of India reported in (1984) 2
SCC 369 has held that it is permissible for the Court to go behind
the formal order of discharge so as to find out real cause of action.
If the order is punitive and stigmatic in nature, even if the
employee concerned is temporary employee or holding the post as
on probation, his dismissal or removal would warrant a regular
inquiry and full fledged compliance of natural justice. The Hon'ble
Apex Court has held thus :-
"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)."
6. In the case of Chandra Prakash Shahi v/s. Stae of
U.P. reported in (2000) 5 SCC 152, the Hon'ble Apex Court has
held 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
C/LPA/336/2021 ORDER DATED: 22/11/2021
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."
7. This Court in Special Civil Application No.1095 of
2016 decided on 21.09.2016 has also held that when order of
termination is based on criminal complaint lodged against the
employee and such order is passed without compliance of
principles of natural justice, then the same would require
interference of this Court.
8. The said principles have also been reiterated in Letters
Patent Appeal No. 1596 of 2019 in case of State of Gujarat
vs. Chetan Jayantilal Rajgor and also in case of Sanjay
Bhanubhai Makwana v. State of Gujarat being Special Civil
Application No.15773 of 2018 decided as per the judgment
dated 07.05.2019 which was confirmed in Letters Patent Appeal
No.493 of 2020 dismissed on 03.09.2020.
9. This Court has perused submissions, documents on
record and legal position in respect of issue in the present Letters
Patent Appeal. Thus, it can be seen from the law laid down that it is
foundation of the order of discharge which is to be looked into, to
ascertain whether termination was by way of punishment and in
absence of inquiry held in accordance with Article 311(2) of the
Constitution of India. It has been further held that such order of
dismissal which is passed without holding departmental inquiry
cannot be allowed to sustain.
10. Learned AGP could not dispute legal position in this
regard. Further, it is seen in the present case that no inquiry was
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held before passing order of termination thereby denying
respondent herein opportunity to defend his case. The very nature
of contents of termination order also reveal that it is stigmatic in
nature.
11. For the above mentioned reasons and law discussed in
the impugned order along with facts of the case, no interference is
called for. The present Letters Patent Appeal is dismissed. No
order as to cost. Consequently, connected Civil Application does
not survive and accordingly, it stands disposed of.
(S.H.VORA, J)
(ANIRUDDHA P. MAYEE,J)
cmk
