Gujarat High Court

Dineshbhai Mansukhbhai Malivad vs State Of Gujarat on 12 July, 2022

Bench: Biren Vaishnav

    C/SCA/18258/2021                               JUDGMENT DATED: 12/07/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 18258 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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                       DINESHBHAI MANSUKHBHAI MALIVAD
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1
MR.KURVEN DESAI, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 12/07/2022

                              ORAL JUDGMENT

1. RULE returnable forthwith. Mr.Kurven Desai

learned AGP waives service of notice of Rule on

behalf of the respondent State.

C/SCA/18258/2021 JUDGMENT DATED: 12/07/2022

2. With the consent of learned advocates for the

respective parties, the petition is taken up for

final hearing.

3. While issuing notice on 09.12.2021, the Court

passed the following order which recorded facts.

Order dated 09.12.2021 reads as under:

" Heard learned Advocate Shri A.S.

Asthavadi on behalf of the petitioner and learned Assistant Government Pleader Ms. Surbhi Bhati on behalf of respondent no.1- State.

By way of this petition the petitioner was at the relevant point of time working as Gram Rojgar Sevak with respondent no.3 posted at Gram Panchayat Alindra Taluka Panchayat Matar ( Now Vaso), District:

Kheda challenges an order dated 28.10.2021 whereby services of the petitioner have been terminated by respondent no.3.

Learned Advocate Shri Asthavadi would submit that since there are allegations and imputations levelled against the present petitioner in the said order, the order being stigmatic in nature, the respondent authorities, were required to hold a regular departmental inquiry against the present petitioner before removing him from service.

C/SCA/18258/2021 JUDGMENT DATED: 12/07/2022

As against the same learned AGP Ms. Bhati would contend that the petitioner being a contractual employee more particularly appointed on 11 months contract, he would not be entitled to claim holding of any departmental proceedings against him.

Having regard to the submissions made by learned Advocates for the parties issue Notice to the respondents returnable on 27.01.2022. Learned AGP waives service of notice on behalf of respondent no.1- State."

4. Mr.A.S.Asthavadi learned advocate appearing for

the petitioner would submit that the issue is covered

by the decision rendered in case of State of

Gujarat v. Chetan Jayantilal Rajgor decided on

24.07.2020 in Letters Patent Appeal No.1596 of

2019.

5. Mr.H.S.Munshaw learned counsel appearing for

respondent no.3 submits that based on a report

dated 07.10.2021 and for the financial irregularities

committed, the authorities decided not to renew the

contract of the petitioner and relieved the petitioner

from the post of Gram Rojgar Sevak w.e.f.

C/SCA/18258/2021 JUDGMENT DATED: 12/07/2022

28.10.2021 through order dated 28.10.2021. Since

the contract was already over non-extension would

not involve termination being stigmatic.

6. Having heard learned counsel for the respective

parties, what is evident is that petitioner was

appointed on contract basis which appointment was

made on 01.03.2011 continued till his services were

discontinued on 28.10.2021 based on order passed

by respondent no.3 on 28.10.2021 which attributed

certain lapses on behalf of the petitioner.

7. The Division Bench while in Letters Patent Appeal

No.983 of 2017 in Special Civil Application

No.13621 of 2014 dated 24.04.2018 was considering

the contractual appointments and regularization of

MNREGA Scheme appointees. Paragraph nos.52.1

and 52.2 of the order of the learned Single Judge

were quoted by the Division Bench which read as

under:

"52.1. The prayer of the petitioners to regularise their contractual services and make

C/SCA/18258/2021 JUDGMENT DATED: 12/07/2022

them permanent on the establishment is rejected. Limited immunity that is made available to the petitioners is by allowing them to continue on their contractual employment and not to be replaced by other set of contractual employees on ad-hocism. The petitioners shall be continued in the existing cadre as long as the said Scheme continues, but purely on contractual basis and such employment shall be co-terminus with the scheme, subject to evaluation of their performance, service and disciplinary rules as may be made applicable to them. The respondent-State shall insist on periodical upgradation of knowledge, improvisation of technical skill and overall preparedness on the subject, so also on computerisation.

52.2. The challenge to the Government Resolutions dated December 23, 2013 and August 28, 2014 and the consequential process of recruitment undertaken in the year 2014 pursuant to the public advertisement dated August 28, 2014, succeeds qua the petitioners only. Those petitioner who have qualified in the last examination of the year 2014 shall be continued on contractual employment without insistence on their fresh appointment by the respondent-State."

8. It was based on these observations that the order of

28.10.2021 was passed. The stand of the respondent

no.3 that for the financial irregularities committed,

the authorities decided not to renew the contract of

the petitioner and relieved the petitioner from the

post of Gram Rojgar Sevak w.e.f. 28.10.2021

C/SCA/18258/2021 JUDGMENT DATED: 12/07/2022

through order dated 28.10.2021, would not exempt

the respondent from following the law laid down in

the case of Chetan Jayantilal Rajgor (supra).

9. While deciding the aforesaid case of Chetan

Jayantilal Rajgor (supra), 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 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

C/SCA/18258/2021 JUDGMENT DATED: 12/07/2022

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. 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

C/SCA/18258/2021 JUDGMENT DATED: 12/07/2022

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."

11. 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

learned counsel for the petitioners inasmuch as the

order that has been passed terminating the services

of the petitioners could not have been so passed on

the allegation of misconduct without holding full

scale inquiry as laid down by the decisions referred

to herein above.

12. Accordingly, the order impugned dated 28.10.2021

by the respondent no.3 is quashed and set aside.

The petitioner is ordered to be reinstated on the