Rajesh Manohar Tarode vs State Of Gujarat
2022 Latest Caselaw 1418 Guj

      C/SCA/4621/2020                             JUDGMENT DATED: 08/02/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 4621 of 2020


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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                         RAJESH MANOHAR TARODE
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SENIOR COUNSEL WITH MR RAKESH R
PATEL(3239) for the Petitioner(s) No. 1
MR KURVEN DESAI, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 08/02/2022

                             ORAL JUDGMENT

1. Heard Mr. Shalin Mehta, learned Senior Counsel appearing with Mr. Rakesh Patel, learned advocate for the petitioner and Mr. Kurven Desai, learned AGP for the respondent State.

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2. Rule returnable forthwith. Mr. Rakesh Patel, learned advocate for the petitioner and Mr. Kurven Desai, learned AGP for the respondent State waive service of notice of Rule.

3. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the order dated 26.12.2019 passed by the respondents by which the services of the petitioner have been put to an end on a report of the Committee constituted to inquire into the allegations of sexual harassment levelled against the petitioner and pursuant to an FIR lodged with Navsari Town police station.

4. Facts in brief would indicate that the petitioner was appointed as an Assistant Hospital Administrator by an order dated 18.12.2007. The terms and conditions of the appointment order would indicate that his appointment was contractual from 15.01.2008 to 30.11.2008. Apart from other conditions, condition no. 5 stipulated that the contract can be terminated with one month's notice from either side. The petitioner's appointment came to be extended from time to time and the petitioner was in service till the date of his termination by the impugned order. An FIR was lodged on 25.09.2019 under Section 354 IPC alleging sexual harassment by the victim against the petitioner. Reading the impugned order would indicate that based on a report of the committee constituted to inquire into the allegations under the Sexual Harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013, a report was furnished by the committee on 18.10.2019. Based on this report and the FIR, the petitioner's services were put to an end invoking condition no. 5 of the order of appointment.

5. Mr. Shalin Mehta, learned Senior Counsel would submit that the

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issue is covered in view of the decision of this Court rendered in Special Civil Application No. 7166 of 2019 on 03.02.2022 and the order of termination needs to be set aside because in the present case not even a show-cause notice has been issued to the petitioner.

6. Mr. Kurven Desai, learned AGP appearing for the State would draw the attention of the court to the affidavit-in-reply filed on behalf of the respondent State. Relying on the reply, Mr. Desai would submit that clause 5 of the appointment order of the petitioner clearly indicated that the services can be put to an end by giving a notice of one month by either side. He submitted that pursuant to the FIR lodged at Navsari Town Police station by the complainant who worked in the same hospital, as per the Vishakha guidelines a complaint committee was constituted. The inquiry proceeded in the presence of the petitioner where witnesses were summoned and their depositions were recorded. Preliminary findings were given on 27.11.2019. Considering the report of the committee it was thought fit not to continue the services of the petitioner in public interest on account of unsuitability, misconduct and inefficiency. Clause 5 of the terms and conditions of the appointment order was therefore invoked. He submitted that it cannot be said that the no inquiry was conducted as a full fledged inquiry was conducted by the committee constituted under the Vishakha guidelines and a report was furnished to the petitioner who was part thereof and was aware of the impending termination.

6. This court in Special Civil Application No. 7166 of 2019, after taking into consideration various decisions which have been referred to therein extensively, has held that even if an employee is contractual, a full scale formal inquiry is a must before an order of termination is passed.

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Mr. Desai would submit that that a full fledged inquiry was conducted by the committee and a report was furnished and the petitioner was part thereof was aware of the impending termination on the ground of misconduct which would justify the order of termination is a submission which cannot be sustained. Having considered the question of law in the facts on hand and they being identical to the question decided in Special Civil Application No. 7166 of 2019 which is reproduced hereinbelow, the petition deserves to be allowed.

"5. In short, the controversy that arises to be adjudicated before this court is whether the termination of the employee, the petitioner who was engaged on contractual terms can be done in the manner that it was, merely by issuance of a show-cause notice or was a full fledged inquiry necessary preceding the action of termination. In the course of submissions therefore the decisions referred to by learned Senior Counsel Mr. Mehta need to be considered. In the case of Rahul Vank (supra), this court vide oral order dated 05.09.2018 while considering the order of a similar nature where the appointment was on contractual terms and where the contest by the State also was on similar lines that the show-cause notice suffices the court held as under:

"5.3 All the aforesaid principles squarely apply in facts of the case of the present petitioner. The decision in Manishbhai Nayanbhai Mod (supra) came to be confirmed by the Division Bench in Letters Patent Appeal No.189 of 2018 decided on 20th February, 2018. In addition to the other reasoning endorsed to by the Division Bench, the following was also stated which stands in complete answer to the contentions raised on behalf of the respondents.

"4.1 ... ... ... 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

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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."

5.3 When the order impugned in this petition is scanned and considered in light of and by applying the aforesaid principles, even without lifting the veil, it could be concluded that the order casts stigma. The order was manifestly stigmatic as was passed on the allegations of misconduct. On a plain reading, it was a stigmatic action taken to terminate 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 fullfledged opportunity to defend and after holding regular departmental inquiry. The employer is not allowed to hire and fire even if the employee, may be ad hoc or probationer, and the services cannot be given a go-bye by one stroke of pen on the ground of misconduct by casting stigma, without holding a regular inquiry in accordance with the principles of natural justice."

5.1 The court thereafter directed reinstatement of the contractual employee to be continued in service for the remaining period of his term. The order of the co-ordinate bench was carried in appeal by the State. The Division Bench by order dated 15.04.2019 in Letters Patent Appeal No. 841 of 2019 after considering various decisions held as under:

"8. Even decision relied by learned Assistant Government Pleader in the case of Chaitanya Prakash and Another (supra) quotes decision in the case of Pavanendra Narayan Verma (supra) 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

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this appeal under Clause 15 of the Letters Patent.

9. When the appointment of the petitioner had genesis in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967, incorporation of certain terms and conditions contractual in nature pale into insignificance when the termination order is expressly stigmatic as rightly concluded by the learned Single Judge which required no lifting of veil and therefore the appeal is bereft of merit."

5.2 What is observed by the Division Bench is that where the termination of an employee who is appointed as contractual is on the ground of stigma or involving moral turpitude or misconduct a full scale formal inquiry needs to be carried out. In the case of Chetan Rajgor (supra), this court by an order dated 08.05.2019 albeit in case of an employee where he was faced with criminal case by lodging of an FIR considered the issue on hand and found that mere notice would not suffice. An inquiry had to be held and therefore the order of termination was set aside. Once again the matter was carried before the Division Bench by way of Letters Patent Appeal No. 1596 of 2019. The Division Bench of this court on 24.07.2020 in paras 8 and 9 held as under:

"8. The bone of contention of appellants - State authorities is that since the original petitioners 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

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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."

5.3 What is evident from reading the contents of the decision is that if initiation of action is based on an unsatisfactory work, gross negligence or indiscipline, it tantamounts to being stigmatic and unless and until a full scale departmental inquiry is held, irrespective of whether the employee is a regular employee or a contractual employee, the result has to be the same. It has to be noted that before the Division Bench it was the stand of the State that an employee who is appointed on contractual basis need not be terminated after holding a full fledged inquiry. It was in the background of this objection of the government that the Division Bench held thus.

"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

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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."

6. Having considered the decisions and the question of law that the courts have decided, there is no reason therefore not to agree with the submissions of Mr. Mehta, learned Senior Counsel inasmuch as the order that has been passed terminating the services of the petitioner could not have been so passed on the allegation of misconduct without holding full scale inquiry as laid down by the decisions referred to hereinabove."

6. Accordingly, the order dated 26.12.2019 is quashed and set aside. The respondents are directed to reinstate the petitioner on same terms and conditions as per the appointment order with a liberty reserved that in the event the respondents wish to proceed against the petitioner they can do so after holding a proper departmental inquiry. The order of reinstatement with consequential benefits shall be passed within a period of four weeks from the date of receipt of the copy of this order. Petition is accordingly allowed. Rule is made absolute.

(BIREN VAISHNAV, J) DIVYA