Gujarat High Court

Jamal Daudbhai S/O Iqbalbhai vs State Of Gujarat on 17 August, 2022

Bench: Biren Vaishnav

      C/SCA/8606/2022                            JUDGMENT DATED: 17/08/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 8606 of 2022

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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                        JAMAL DAUDBHAI S/O IQBALBHAI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
JAYDEEP H SINDHI(9585) for the Petitioner(s) No. 1
MR KISHANKUMAR R MAURYA(10580) for the Petitioner(s) No. 1
 for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                      Date : 17/08/2022
                      ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Sharma, learned

Assistant Government Pleader for the respondent -

State as well as Mr. Munshaw, learned counsel waive

service of notice of Rule for the respondent No.2.

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Though served, nobody appears for respondent

No.3.

2. With the consent of the learned counsels for the

respective parties, the petition is taken up for final

hearing today.

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

Constitution of India, under challenge is the order

dated 29.12.2020 passed by the respondent

authorities. By the impugned order, the services of

the petitioner who was a contractual employee,

working as a Gram Rojgar Sevak has been

terminated.

4. Mr. Maurya, learned counsel for the petitioner would

submit that the appointment of the petitioner was a

contractual appointment of 11 month basis.

However, by a decision of this Court, the petitioner

has been continued in service till the currency of the

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Scheme - MGNREGA.

5. The short ground on which the order of termination

is challenged is that the same is stigmatic in view of

the fact that it refers to an FIR filed against the

petitioner where the petitioner is arraigned as an

accused.

6. Relying on the Resolution dated 15.9.2010,

particularly, condition No.12 thereof, it is the case of

the respondent that being a contractual employee,

services have been terminated in accordance with

the conditions of appointment.

7. Mr. Munshaw, learned counsel for the respondent

No.2 would submit that the appointment of the

petitioner was on a contractual basis. At the time of

inspection of the Taluka Panchayat, Lunavada,

irregularities were found during the period from

2016 to 2019 and payments were directly deposited

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in the accounts of the vendors by preparing bogus

bills. The Taluka Development Officer carried out

the inquiry and investigation and file a report on

9.11.2020. It is the case of the respondents that the

petitioner had directly deposited an amount to one

Lalabhai Nathabhai Chamar, father of the petitioner

and accordingly, a criminal case is filed against the

petitioner. Rejoinder is filed by the learned counsel

for the petitioner.

8. As rightly submitted by the learned counsel for the

petitioner, the issue whether a contractual employee

can be terminated without holding a full scale

departmental inquiry has been concluded by a

judgment dated 24.7.2020 passed in LPA No.1596 of

2019. Relevant paragraph Nos.5 to 18 are

reproduced hereunder:

"5. Having heard the learned counsels appearing for the respective parties and having gone through the submissions made by them and in view of analysis of relevant record, we have found that the order passed by the learned Single Judge appears to be exhaustive

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dealing with not only the status of the present respondents and whether the order passed against them is a stigmatic or not. The reasons reflecting from Para.5 onwards are based upon analysis of the relevant decisions in the context of present background of facts. Hence, we deem it proper to reproduce the same hereby :

"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 eventhough 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 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

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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 standing order or otherwise. Whether, in such a case the grounds are recorded in a

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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)

5.4 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)

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5.8 It is the foundation of the order which 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

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from the narration of the order itself that the inquiry into the conduct was not the motive 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, eventhough the petitioner was a

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

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conditions."

1. 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 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

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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 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."

When the impugned order is considered in light of the above principles and the position of law, it could be well discerned that the the event of filing of F.I.R. against the petitioner was treated as base and it was concluded readily by the respondents that the petitioner had committed misconduct for accepting the bribe. Upon this foundation, the termination was effected. It was on the ground of misconduct and therefore the stigmatic order, which could not have been passed without a full scale inquiry.

6.1 An attempt was made in vain by learned advocate for the respondents that there was compliance of natural justice as the notice was issued to the petitioner. A mere notice would not suffice. No inquiry was held, no charge was framed against the petitioner. Without issuing the charge and without putting the petitioner to knowledge of the allegation which he was to precisely answer, the principles of natural justice could not be said to be followed when the order was founded on misconduct. As held

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by the Division Bench of this Court in the judgment above, it necessitated a full scale inquiry against the petitioner after issuing show-cause notice and by framing appropriate charge, conducting it in accordance with the natural justice.

6.2 The petitioner was a fixed term employee who was appointed as Assistant Motor Vehicle Inspector, Class-III as per appointment order dated 17th May, 2013 for a period of five years. The impugned order came to be passed on 22nd April, 2015. Therefore, the relief which would ensue for the petitioner shall be upto making up good the total period of five years of employment.

7. As a consequence of above discussion and reasons, the impugned order dated 30th March, 2015 passed by respondent No.2 - Commissioner of Transport is hereby set aside. Respondents are further directed to reinstate the petitioner on original post of Assistant Motor Vehicle Inspector, Class-III 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. 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. 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."

6. In the cognate matter also, almost similar

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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

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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 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

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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 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.

15. 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:

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"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.

16. However, we make it clear that since the learned Single Judge has clearly observed that present appellants are not precluded from proceeding against the respondents in accordance with law, without disturbing said observations, we dismiss both these Letters Patent Appeals.

18. Consequently, connected Civil Applications also stand dismissed."

9. Keeping the question of law decided by this Court as

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aforesaid, the order of termination dated 29.12.2020

is hereby quashed and set aside. The petitioner is

directed to be reinstated to the original post and

position on the same terms and conditions that he

was originally appointed. Since he was a contractual

appointee, he will not be entitled to arrears for

intervening period. However, it is made clear that

the respondents are not precluded from initiating

action against the petitioner qua the incident in