Gujarat High Court

Shaktisinh Ghanshyamsinh Jadeja vs State Of Gujarat on 26 July, 2022

Bench: Biren Vaishnav

     C/SCA/14382/2021                                JUDGMENT DATED: 26/07/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 14382 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

================================================================
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 ?

================================================================
                        SHAKTISINH GHANSHYAMSINH JADEJA
                                      Versus
                                STATE OF GUJARAT
================================================================
Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1,2,3
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 2
================================================================

     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                 Date : 26/07/2022

                                ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Utkarsh Sharma,

learned Assistant Government Pleader waives

service of notice of Rule for the respondent - State

C/SCA/14382/2021 JUDGMENT DATED: 26/07/2022

while Mr. P. R. Joshi, learned counsel waives service

of notice of Rule for the respondent No.3.

2. With the consent of the learned advocates 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, the petitioners have

challenged their orders of termination dated

4.9.2021. They were working as Assistant

Programme Officers under the District Rural

Panchayat Agency, Amreli.

4. Mr. A.S. Asthavadi, learned counsel for the

petitioners would submit that reading the orders of

termination would indicate that their services have

been terminated on the ground of financial

misappropriation. The order is stigmatic.

5. Mr. P. R. Joshi, learned counsel for the respondent

C/SCA/14382/2021 JUDGMENT DATED: 26/07/2022

No.3 would submit that the petitioners were

appointed in light of the GR dated 23.12.2013. The

conditions of appointment indicated that they had

given an undertaking that if they committed any

financial misappropriation or a misconduct, their

services will be terminated immediately. It is

therefore not open for the petitioners to contend

that the order of termination is stigmatic. He would

also submit that show cause notices were issued to

the petitioners which are annexed to the petition.

6. 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 regularize their contractual services and make them

C/SCA/14382/2021 JUDGMENT DATED: 26/07/2022

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."

7. While deciding the aforesaid case of Chetan

Jayantilal Rajgor (supra), the Division Bench of

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

C/SCA/14382/2021 JUDGMENT DATED: 26/07/2022

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."

8. 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

C/SCA/14382/2021 JUDGMENT DATED: 26/07/2022

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 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

C/SCA/14382/2021 JUDGMENT DATED: 26/07/2022

submissions made by learned counsel for the appellants in both these appeals."

9. 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.

10. Accordingly, the order impugned dated 04.09.2021

passed by the respondent is quashed and set aside.

The petitioners are ordered to be reinstated on the