Mayurkumar Ramubhai Makwana vs State Of Gujarat
2022 Latest Caselaw 647 Guj

       C/SCA/9442/2021                                  ORDER DATED: 19/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9442 of 2021

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                         MAYURKUMAR RAMUBHAI MAKWANA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR. JAY M THAKKAR(6677) for the Petitioner(s) No. 1
MR KURVEN DESAI, AGP (1) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 19/01/2022

                                 ORAL ORDER

[1]. Heard Mr. Jay M. Thakkar, learned counsel for the petitioner and

Mr. Kurven Desai, learned AGP for the respondent - State.

[2]. The Challenge is to the order of termination dated 29.6.2020 as

well as the order of the appellate authority dated 6.5.2021.

[3]. Mr. Thakkar, learned counsel for the petitioner has drawn the

attention of this Court on 18.1.2022 passed the order in SCA No.15419 of

2019 and requested to pass the Court to pass similar order. Such order is

reproduced hereunder:

"1. Heard Mr.Jigar Gadhavi learned advocate for the petitioner and Mr.Meet Thakkar learned AGP for the State.

C/SCA/9442/2021 ORDER DATED: 19/01/2022

2. The challenge is to the order dated 22.04.2014 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.

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. 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

C/SCA/9442/2021 ORDER DATED: 19/01/2022

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.

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 22.04.2014 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."

[4]. In view of above and considering the decisions as cited herein

above, the order of termination dated 29.6.2020 as well as the order of the

C/SCA/9442/2021 ORDER DATED: 19/01/2022

appellate authority dated 6.5.2021 are 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.

[5].    The petition is allowed in the aforesaid terms.



                                                      (BIREN VAISHNAV, J)
VATSAL S. KOTECHA