State Of Gujarat vs Hitendra Shaileshkumar ...
2021 Latest Caselaw 16601 Guj

     C/LPA/594/2021                               ORDER DATED: 22/10/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 594 of 2021

           In R/SPECIAL CIVIL APPLICATION NO. 5508 of 2020

                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
              In R/LETTERS PATENT APPEAL NO. 594 of 2021
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                         STATE OF GUJARAT
                               Versus
               HITENDRA SHAILESHKUMAR BHRAHMBHATT
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Appearance:
MR SAHIL TRIVEDI, AGP (1) for the Appellant(s) No. 1,2
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                            Date : 22/10/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned Assistant Government Pleader Mr.Sahil Trivedi for the appellant State and its authorities.

2. By this Letters Patent Appeal, the State through the Secretary, Revenue Department as well as the Collector, Valsad- appellants herein, seek to challenge order dated 9.12.2020 of learned Single Judge. Learned Single Judge set aside the order dated 14.11.2019 passed by the Collector, Valsad terminating the services of the petitioner and directed the respondents to reinstate the petitioner within stipulated time on original post with similar service conditions to make up total five years period as per the original appointment period. Learned Single Judge did not grant any monetary benefits or salary for the intervening

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period.

3. The original petitioner was appointed as Mamlatdar on the basis of the fixed pay for fixed period of five years on adhoc basis, who joined the services on 2.1.2017. Order of termination came to be passed against the petitioner dated 14.11.2019, pursuant to registration of First Information Report against the petitioner on 17.4.2019 with Valsad and Dang ACB Police Station in which commission of offence by the petitioner under Section 7(a) of the Prevention of Corruption Act, 1988 was alleged, a show cause notice dated 24.9.2019 was issued to the petitioner on the ground of alleged misconduct stating that the petitioner had acted in a manner unbecoming of a government servant and that the said order of termination passed against the petitioner mentioned that the petitioner committed misconduct of accepting bribe and that it was a stigmatic order.

3.1 Learned Single Judge recorded that a bare reading of the contents of the termination order showed that the foundation of the impugned order was on the alleged misconduct of demanding and accepting bribe of Rs.25,000/- for which aforesaid First Information Report was registered. As the stigmatic order was passed without holding full fledged departmental inquiry, in view of the decision of the Division Bench of this Court in Letters Patent Appeal No.1596 of 2019 and allied matters decided on 24.7.2020, wherein the Division Bench confirmed the decision rendered in State of Gujarat and others Vs. Chetan Jayantilal Rajgor, set aside the order of termination and granted the relief. The decision in Chetan Jayantilal Rajgor (supra) came to be considered and was affirmed by the Division Bench in Deputy District Development Officer Vs. Devatbhai Ramsibhai Bhoda being

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Letters Patent Appeal No.99 of 2021 decided on 8.6.2021, in which the identical issue was involved about terminating the services of the fixed time appointee on fixed salary on the ground of misconduct and casting stigma. The position of law discussed in Chetan Jayantilal Rajgor (supra) came to be highlighted and reiterated by the Division Bench 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.

8.3 The bone of contention of appellants - State authorities is that since the original petitioners are

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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

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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 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."

3.2 After quoting paragraph Nos.8.1 to 12, from the decision in

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Chetan Jayantilal Rajgor (supra), also affirmed the position that the cases where the termination order caste stigma, a full fledged departmental inquiry would have to be conducted before effecting termination.

"In both the 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."

4. Learned Assistant Government Pleader submitted that in one of the cases, involving the same issue, in State of Gujarat Vs. Sanjay Bhanubhai Makwana being Special Leave to Appeal No.15479 of 2021, is pending and that notice is issued by the Apex Court.

5. While the issue involved as above presently stands covered by the decision in Chetan Jayantilal Rajgor (supra), affirmed by the Division Bench in Deputy District Development Officer (supra), the law laid down is followed in yet another judgment of Division Bench in the District Development Officer Vs. Dipeshkumar Somabhai Vasava being Letters Patent Appeal No.270 of 2021 decided on 17.2.2021, in that case, the Court again relied on Chetan Jayantilal Rajgor (supra) to reiterate the law and granted relief to the petitioner. Incidentally, the aspect of pendency of Special Leave Petition against the decision in Letters Patent No.1596 of 2019 was referred to and it was observe thus, "We are conscious of the pendency of this matter, before the Apex Court with a Special Leave to Appeal (C) No.013220 of 2020, where the judgment of Letters Patent Appeal No.1596 of 2019 is challenged

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by the State. No details of date beyond 15.2.2021 is available.

According to Mr.Jayneel Parikh, learned Assistant Government Pleader, no date thereafter is being shown. However, that itself may not be the ground for the Court to entertain or grant stay in this petition with no specific order of stay of the earlier order. The request of keeping the matter pending also does not deserve entertainment."

6. As the issue is covered as above by various decision of this Court including in this Court in Chetan Jayantilal Rajgor (supra), Deputy District Development Officer (supra) and Dipeshkumar Somabhai Vasava (supra), we do not see any reason to entertain the present challenge.

6.1 We make it clear that appellant authorities are not precluded from proceeding against the respondent employee in accordance with law.

7. The Letters Patent Appeal is dismissed accordingly.

ORDER IN CIVIL APPLICATION In view of disposal of the present Appeal, the present Civil Application will not survive. Accordingly, it is disposed of.

(N.V.ANJARIA, J)

(ANIRUDDHA P. MAYEE,J) Manshi