Gujarat High Court

Bhaveshkumar Rameshkumar Kanara vs State Of Gujarat on 21 April, 2022

Bench: Vipul M. Pancholi

     C/SCA/9256/2017                                   JUDGMENT DATED: 21/04/2022



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
         R/SPECIAL CIVIL APPLICATION NO.                   9256 of 2017

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI   :    Sd/-
=======================================================

1  Whether Reporters of Local Papers may be      NO
   allowed to 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 judgment ?                   NO
4 Whether this case involves a substantial
   question of law as to the interpretation
   of the Constitution of India or any           NO
   order made thereunder ?
=======================================================
            BHAVESHKUMAR RAMESHKUMAR KANARA
                         Versus
             STATE OF GUJARAT & 3 other(s)
=======================================================
Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No. 1
MR ROHAN SHAH AGP for the Respondent(s) No. 1,2,3,4
=======================================================

    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                              Date : 21/04/2022

                                   ORAL JUDGMENT

1. This petition is filed by the petitioner under

Article 226 of the Constitution of India, in

which, the petitioner has prayed that the order

dated 03.04.2017 passed by the respondent no.4, by

which the services of the petitioner is

terminated, be quashed and set aside.

2. Heard learned advocate, Mr. Murali Devnani for the

petitioner and learned AGP Mr. Rohan Shah for the

C/SCA/9256/2017 JUDGMENT DATED: 21/04/2022

respondents.

3. Learned advocate for the petitioner submitted that

the petitioner was appointed on the post of Jail

Sepoy with the respondent authority at Rajkot

District Jail vide office order dated 05.03.2011

on certain terms and conditions on contractual

basis for a period of five years on fixed pay of

Rs.3,500/- p.m. It is further submitted that an

FIR being C.R. No.1/2015 was registered against

the petitioner under the provision of the

Prevention of Corruption Act with Rajkot Rural ACB

Police Station against the petitioner and in

connection with the said FIR, the petitioner was

arrested. It is further submitted that because of

the registration of the aforesaid FIR against the

petitioner, the service of the petitioner was

terminated without following due procedure of law

and, therefore, the petitioner filed writ petition

being Special Civil Application No.19085/2016

before this Court. Learned advocate has pointed

out from the record that this Court allowed the

said petition vide order dated 15.11.2016 and

thereby quashed and set aside the order dated

17.01.2015 passed by the concerned respondent

C/SCA/9256/2017 JUDGMENT DATED: 21/04/2022

authority, however, liberty was reserved to the

concerned respondent to initiate appropriate

proceeding in accordance with law, copy of said

order is placed on record at Page No.35 of the

compilation. Learned advocate further submits that

thereafter the concerned respondent issued show

cause notice dated 21.03.2017 to the petitioner,

to which, the petitioner submitted his reply on

27.03.2017 and, thereafter by way of impugned

order dated 03.04.2017, without holding any

departmental inquiry, the service of the

petitioner has been terminated relying upon the

terms and conditions of the order of appointment

and, therefore, the petitioner has filed the

present petition.

4. Learned advocate mainly contended that before

passing the impugned order of termination, the

respondent authority has not conducted full-

fledged departmental inquiry and, therefore only

on this ground, the impugned order is required to

be quashed and set aside. In support of the said

contention, learned advocate has placed reliance

upon the decision rendered by this Court in case

of Manishbhai Nayanbhai Mod Vs. Vadodara Municipal

C/SCA/9256/2017 JUDGMENT DATED: 21/04/2022

Corporation, reported in 2018 (2) GLR 1636.

Learned advocate has more particularly referred to

Paragraph Nos.6 and 6.1 of the said decision. At

this stage, it is pointed out that the aforesaid

decision rendered by the learned Single Judge was

challenged by the concerned authority by filing

Letters Patent Appeal NO.189/2018 before the

Division Bench of this Court and the Division

Bench of this Court, vide order dated 20.02.2018,

dismissed the said LPA and thereby confirmed the

aforesaid decision rendered by the learned Single

Judge.

5. Learned advocate therefore contended that in the

aforesaid case, though criminal trial was pending

before the concerned trial court on the basis of

the FIR registered against the concerned employee,

this Court has quashed and set aside the order of

termination on the ground that the departmental

inquiry was not conducted prior to passing of the

termination order, whereas in the present case,

now the petitioner has been acquitted by the

concerned criminal court by judgment and order

dated 23.12.2021 passed in Special (ACB) Case

No.1/2015, copy of said order is placed on record

C/SCA/9256/2017 JUDGMENT DATED: 21/04/2022

by the petitioner along with Civil Application

(for direction) No.1/2022. Learned advocate,

therefore, urged that now the competent criminal

court has acquitted the petitioner and, therefore,

the impugned order of termination passed by the

concerned respondent authority be quashed and set

aside.

6. On the other hand, learned AGP has opposed this

petition. Learned AGP has referred to the

averments made in the affidavit-in-reply filed on

behalf of the respondent no.4. It is submitted

that as the petitioner was appointed on fixed

termed basis, the departmental inquiry is not

required to be conducted as per the terms and

conditions of the appointment. Learned AGP has

referred to the terms and conditions of the

appointment order, copy of which is placed on

record at Page No.21 of the compilation. It is

contended that this Court has quashed and set

aside the order of termination dated 17.01.2015

passed by the respondent no.4 and thereby granted

liberty to the respondents to initiate appropriate

proceeding in accordance with law and in pursuance

thereto, the respondent no.4 issued show cause

C/SCA/9256/2017 JUDGMENT DATED: 21/04/2022

notice to the petitioner and after giving

reasonable opportunity to the petitioner, now the

impugned order has been passed by the respondent

no.4 and, therefore, the respondent no.4 has not

committed any illegality as alleged by the

petitioner. Learned AGP, therefore, urged that

this petition may not be entertained.

7. Having heard learned advocates appearing for the

parties and having gone through the material

placed on record, it would emerge that the

petitioner was appointed on the post of Jail Sepoy

with Rajkot District Jail vide office order dated

05.03.2011 on contractual basis for a period of

five years on certain terms and conditions. During

the said period of five years, an FIR being C.R.

No.1/2015 came to be registered against the

petitioner for the alleged offences punishable

under the provision of the Prevention of

Corruption Act, 1988 and, therefore, the

respondent no.4 has passed an order of termination

dated 17.01.2015, whereby the petitioner has been

terminated on the ground of registration of FIR

against him. It is further reflected from the

record that the petitioner has challenged the said

C/SCA/9256/2017 JUDGMENT DATED: 21/04/2022

order by filing Special Civil Application

No.19085/2016 and this Court quashed and set aside

the order dated 17.01.2015 on the ground that the

respondent authority has not followed the

prescribed procedure before terminating the

services of the petitioner. This Court has

specifically observed that the petitioner was no

longer on probation at the time of passing of the

order and criminal case is also pending against

him and the same has not culminated into either

his conviction or acquittal. It is also observed

by this Court that it is completely in

contravention of Circular dated 09.09.2011 as well

as the Bombay Police (Disciplinary and Appeal)

Rules, 1956 (hereinafter referred to as "the Rules

of 1956) and also the basic principles of natural

justice. After observing the aforesaid aspect, the

order of termination was quashed and set aside.

However, this Court also observed that the

quashment of the order shall not preclude the

respondents to initiate appropriate proceeding in

accordance with law.

8. Though this Court has specifically observed that

the respondent no.1 has not followed the procedure

C/SCA/9256/2017 JUDGMENT DATED: 21/04/2022

as contemplated in Circular dated 09.09.2011 and

the Rules of 1956 and without following procedure

as contained in the Rules of 1956 and the

Circular, now once again the respondent authority

has passed the impugned order dated 03.04.2017. If

the impugned order is carefully examined, it is

clear that the respondent no.4 has though issued

show cause notice and considered the reply

submitted by the petitioner, full-fledged

departmental inquiry has not been conducted

against the petitioner before terminating his

services.

9. At this stage, it is pertinent to note that during

the pendency of this petition, now the petitioner

has been acquitted by the competent criminal court

vide judgment and order dated 23.12.2021 passed in

Special (ACB) Case No.1/2015. Thus, now the

petitioner has been acquitted and till date, the

respondent authority has not filed any Appeal

against the said judgment and order of acquittal.

10. At this stage, this Court would like to refer to

the decision rendered by this Court in case of

Manishbhai Nayanbhai Mod (supra), wherein this

Court has observed in Paragraph No.6 as under,

C/SCA/9256/2017 JUDGMENT DATED: 21/04/2022

"6. When the impugned order is assessed, evaluated and considered in light of the aforesaid principles, it is even not necessary to adopt the process of lifting of veil. It is not necessary to remove the facade even, for, the order in these very recitals could be manifestly said to be based on allegations of misconduct. The plain reading of order castes stigma. It is a stigmatic action of termination of petitioner's service. Such an action could not have been taken, even though 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. The employer is not allowed to hire and fire employee.

             Even        if     the           temporary,              ad-hoc           or
             probationer         employee             is     driven          out       of

service on the ground of misconduct without holding inquiry and stigma is caste on his career by the punitive order, it is also a facet of behaving with hire and fire attitude by the employer."

11. From the aforesaid observations made by this

Court, it is clear that if the stigmatic action of

termination of service is taken by the employer,

such action could not have been taken even if the

concerned employee was appointed on fixed period

without giving the concerned employee full-fledged

C/SCA/9256/2017 JUDGMENT DATED: 21/04/2022

opportunity to defend and by holding regular

departmental inquiry. The aforesaid order passed

by the learned Single Judge is confirmed by the

Division Bench in Letters Patent Appeal

No.189/2018, copy of order of Division Bench is

placed on record at Page No.116 of the

compilation.

12. Keeping in view of the aforesaid decision rendered

by this Court, if the facts of the present case,

as discussed hereinabove, are examined, it is

revealed that the impugned order dated

03.04.2017 is stigmatic in nature and the impugned

order cannot be said to be an order of termination

simplicitor. Thus, the respondent no.4 has passed

the impugned order of termination relying upon the

registration of the FIR under the provision of the

Prevention of Corruption Act against the

petitioner, therefore, full-fledged departmental

inquiry was required to be conducted, however, the

said procedure was not followed by the respondent

no.4 before passing impugned order. At this stage,

it is also pertinent to note that in the first

round of litigation, when this Court has passed an

order dated 15.11.2016 in Special Civil

C/SCA/9256/2017 JUDGMENT DATED: 21/04/2022

Application No.19085/2016, this Court has observed

in Paragraph No.10 as under,

"10. So far as the present case is concerned, the petitioner was no longer on probation at the time of passing of the order.

Moreover, criminal case is also pending against him and the same has not culminated into either his conviction or acquittal. It is also to be noted that absolutely no opportunity is given and order of termination has been passed which deserves to be quashed, as it is completely in contravention of circular dated 9.9.2021 but also that of the Bombay Police (Disciplinary and Appeal) Rules, 1956, and so also the basic principles of natural justice."

13. Thus in case of the petitioner himself, this Court

has observed that the respondent authority has

passed an order of termination, which is in

contravention of Circular dated 09.09.2011 as well

as in contravention of the Rules of 1956. The

respondent no.4 was required to follow the

procedure prescribed under the aforesaid Circular

and the Rules of 1956. It is not in dispute that

the present respondent authority has not

challenged the aforesaid order passed by this

Court by filing Appeal before the Division Bench

C/SCA/9256/2017 JUDGMENT DATED: 21/04/2022