Gujarat High Court

Sisotiya Sagar Virambhai vs State Of Gujarat on 10 August, 2022

Bench: Biren Vaishnav

     C/SCA/1015/2021                             JUDGMENT DATED: 10/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1015 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       SISOTIYA SAGAR VIRAMBHAI
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR PARESHKUMAR B TRIVEDI(9926) for the Petitioner(s) No. 1
MR.UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 10/08/2022

                            ORAL JUDGMENT

1. RULE returnable forthwith. Mr.Utkarsh Sharma

learned AGP waives service of notice of Rule on

behalf of the respondent State.

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2. With the consent of learned advocates for the

respective parties, the petition is taken up for

final hearing.

3. By way of this petition under Article 226 of the

Constitution of India, the petitioner seeks to

quash and set aside the order of termination

dated 02.01.2021 served on the petitioner on

08.01.2021.

4. By an order dated 02.01.2021, the services of the

petitioner has been terminated. Reading of the

order indicates that several misconducts have

been attributed to the petitioner.

5. Mr.K.B.Pujara learned advocate for the

petitioner would rely upon several orders passed

by this Court viz. one in Special Civil Application

No.11641 of 2003 dated 17.11.2003 and the

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other of coordinate bench of this Court dated

21.10.2020 passed in case of Kapil Rasikbhai

Jethwa v. State of Gujarat rendered in Special

Civil Application No.11880 of 2020, where

the Court considering the various decisions in

case of Rahul Aydanbhai Vank v. State of

Gujarat in Special Civil Application No.889 of

2018 decided on 05th September, 2018

confirmed in Letters Patent Appeal No.841 of

2019 and other decisions held as under:

"4.1 Learned advocate for the petitioner next submitted that the case of the petitioner stands covered by the decision of this Court in Sanjay Bhanubhai Makwana v. State of Gujarat being Special Civil Application No.15773 of 2018 decided as per the judgment dated 07th May, 2019 which was confirmed in Letters Patent Appeal No.493 of 2020 dismissed on 03rd September, 2020. 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

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

5.1 In the aforesaid case also, the petitioner

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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

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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 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

C/SCA/1015/2021 JUDGMENT DATED: 10/08/2022

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 non-injurious 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 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

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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

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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 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, even though the petitioner was a fixed period employee, without giving the petitioner a full-fledge opportunity to defend and thus by holding a

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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] 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

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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 guilt stands satisfied and

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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.

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

7. As a consequence of above discussion and reasons, the impugned order dated 15th June, 2020 passed by Collector, Navsari is hereby set aside. Respondents are further directed to reinstate the petitioner on original post of Clerk at E-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.

7.1 The resultant monetary benefits to be paid to the petitioner within a period of eight weeks from the date of receipt of the present order.

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7.2 At the same time, it is provided that the reinstatement of the petitioner directed as above shall be for the period upto making of the total original period fixed for his employment as per order of appointment.

8. It is observed and clarified that the respondents are not precluded from proceeding against the petitioner in accordance with law.

9. The petition is allowed in the aforesaid terms. Direct service is permitted."

6. Mr.Utkarsh Sharma learned AGP would submit

that the order of termination is just and proper,

particularly in light of condition no.14 in the

order of appointment. He would also submit that

the show cause notice was given a month before

his termination.

7. In view of the decision in case of Kapil

Rasikbhai Jethwa (supra), the order dated

02.01.2021 is quashed and set aside. The

respondents are directed to forthwith reinstate