Gujarat High Court
Vijaykumar Narayanbhai Raval vs State Of Gujarat on 18 January, 2022
Bench: Biren Vaishnav
C/SCA/15816/2019 ORDER DATED: 18/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15816 of 2019
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VIJAYKUMAR NARAYANBHAI RAVAL
Versus
STATE OF GUJARAT
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Appearance:
MR JIGAR G GADHAVI(5613) for the Petitioner(s) No. 1
MR.MEET THAKKAR, AGP (1) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 18/01/2022
ORAL ORDER
1. Heard Mr.Jigar Gadhavi learned advocate for the petitioner and
Mr.Meet Thakkar learned AGP for the State.
2. The challenge is to the order dated 20.04.2014 passed by the
respondent by which the services of the petitioner were put to an
end alleging misconduct and financial irregularities.
3. The short contention raised by Mr.Gadhavi learned counsel for the
petitioner is that the services of the petitioner could not have been
put to an end without an appropriate notice and inquiry.
4. Mr.Thakkar learned AGP would submit that the conditions of the
order of appointment, particularly condition no.10 envisaged the
situation where in case of a misconduct, the services of the
petitioner could be put to an end without inquiry, particularly when
he had given an undertaking that he would, if found committing
any irregularities, not be entitled to any terminal benefits on being
terminated from service.
C/SCA/15816/2019 ORDER DATED: 18/01/2022
5. Mr.Meet Thakkar would also submit that the order of 2014 has
been challenged in the year 2019 after more than delay of five
years.
6. The present issue is covered by a decision of the Division Bench of
this Court dated 24.07.2020 rendered in Letters Patent Appeal
No.1596 of 2019 in case of State of Gujarat v. Chetan Jayantilal
Rajgor and a recent judgment of Division Bench of this Court in
case of Kaminiben Thakorbhai Patel v. State of Gujarat rendered
in LPA No.761 of 2021. The said decision held as under:
"6. When the order of termination passed against the appellants
petitioners and impugned before the learned single Judge is
considered in light of the aforesaid principles laid down, it
could be discerned that the termination was founded on the
alleged misconduct of the petitioner that they fabricated the
documents or at least as parties to the process of such
fabrication in order to seek transfer and that they had
committed misconduct by submitting transfer applications which
was impermissible. Even otherwise the order was manifestly on
the ground of misconduct. It became stigmatic order. It could
not have been passed without full scale inquiry. There was a
clear nexus between the alleged misconduct and the order of
termination.
6.1 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.
C/SCA/15816/2019 ORDER DATED: 18/01/2022
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 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."
6.2 The law laid down in Chetan Rajgor (supra), in Manishbhai
Nayanbhai Mod (supra) as well as in Sandip Ajitsinh Vaghela
(supra) and in Rahul Vank (supra) holds the field. In respect of
the impugned order in the instant case, the said law will apply.
A vain attempt was made on behalf of the respondents to submit
that when learned single Judge decided the petition and passed
the impugned order, the above decisions were not holding the
field. This submission is fallacious inasmuch as the decision in
Manishbhai Nayanbhai Modh (supra) was prior to the
impugned order dated 26th March, 2019. Even otherwise, it is
trite principle that law prevalent at the time of deciding the
controversy shall govern and shall have to be applied for
crystalising the rights of the parties.
7. We now advert to the nature of relief to be granted in the
facts of the present case. The termination of service having been
found stigmatic and without compliance of requirements of
holding full fledged inquiry, the same has to be set aside.
However, the petitioners were appointed initially for a period of
five years as per order dated 14th December, 2001. The
impugned order came to be passed on 16th October, 2003.
Therefore, while directing reinstatement of the appellants-
petitioners after setting aside the impugned order, the relief of
reinstatement to the petitioners would ensue so as to make up
good the total period of five years of employment for the
petitioners. All the rest of the conditions of appointment shall
govern.
C/SCA/15816/2019 ORDER DATED: 18/01/2022
8. As far as the aspect of grant of back wages to the appellants
is concerned, while on behalf of the appellants, the relief of back
wages was pressed by submitting that the back wages have to
follow automatically when the reinstatement is directed upon
holding the termination illegal, certain conspicuous aspects
stare at the face of the controversy in this case fir considering
the issue of back wages. Not only that long time has elapsed
since the appellants are ordered to be reinstated by this order
and the principle of no work no pay would apply. What becomes
decisive in the matter on this score is the factum that the
appellants were appointed for five years initially and during
such five years their services came to be terminated by passing
the impugned order. They are reinstated as per the above
direction for the remainder period providing further that all
other conditions in respect of nature of their appointment would
operate. In such circumstances, the question of grant of back
wages does not arise. The appellants will not be entitled to any
back wages."
7. The fact that there is a delay on the part of the petitioner in
approaching this Court has also been considered by this Court.
However, considering the decisions as cited herein above, the order
of termination dated 20.04.2014 is quashed and set aside. The
petitioner is directed to be reinstated without back-wages. It goes
without saying that the respondent authorities will not be precluded
from proceeding against the petitioner for the alleged misconduct
in accordance with law.
8. The petition is allowed in the aforesaid terms.
(BIREN VAISHNAV, J)
ANKIT SHAH
