Gujarat High Court

Bharat Mansinghbhai Gohil vs District Development Officer on 14 October, 2022

Bench: Biren Vaishnav

      C/SCA/682/2021                              JUDGMENT DATED: 14/10/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO.682 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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                        BHARAT MANSINGHBHAI GOHIL
                                   Versus
                       DISTRICT DEVELOPMENT OFFICER
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Appearance:
MR KIRIT R PATEL(2802) for the Petitioner(s) No. 1
MS RV ACHARYA(1124) for the Respondent(s) No. 1,2,3
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 4
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 14/10/2022

                             ORAL JUDGMENT

1. Leave to join State of Gujarat (notice to be served

through the Gujarat Urban and Rural Development,

Sachivalaya, Gandhinagar) as party respondent No.4.

C/SCA/682/2021 JUDGMENT DATED: 14/10/2022

2. Rule returnable forthwith. Mr. Utkarsh Sharma, learned

Assistant Government Pleader waives service of notice

of rule on behalf of respondent No.4 - State while Ms.

Acharya, learned advocate waives service of notice of

rule on behalf of respondent Nos.1 to 3.

3. With consent of the learned advocates appearing for

the respective parties, the matter is taken up for final

hearing today.

4. Challenge in this petition is to the order dated 10-

13/08/2017 by which the District Panchayat, Gir

Somnath through its Health Department has

terminated the services of the petitioner who was

working as Multi Purpose Health Worker.

5. The facts in brief would indicate that the petitioner was

appointed on a fixed pay for a period of five years on

and from 12.09.2012 as a Multi Purpose Health Worker.

Pursuant to an FIR lodged namely; FIR No.17 of 2017,

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the services of the petitioner were terminated on

14.08.2017. On approaching the higher authorities of

the State, the respondent No.4 directed the District

Development Officer to reconsider the issue in light of

the terms of appointment of the petitioner.

6. Mr. Kirit Patel, learned counsel for the petitioner would

rely on a decision dated 26.02.2019 rendered in

Special Civil Application No.12071 of 2018, by which, in

an identical circumstance, after considering various

decisions of the Hon'ble Supreme Court, the Coordinate

Bench of this Court held as under:

"5. The position of law in relation to effecting termination of service of an employee, even if on the fixed pay, by passing a stigmatic order without following principles of natural justice came to be delineated and discussed by this Court in Imranbhai Anwarbhai Majothi v.

State of Gujarat being Special Civil Application No.17872 of 2017 decided on 30th November, 2017. In that case, petitioner was appointed as Beat Guard. The allegations were raised against him inter alia that he had stolen two passbooks, that he mentioned wrong information in the

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Register to allow trucks to pass-by illegally. It was stated in the order leading to his termination of service that he used the pass-book for illegal purpose for which it was stolen and due to the act of negligence, caused damage to the forest's properties to a large extent. It was mentioned in the order that if the petitioner was to continue in service, it would entail greater loss and that it was not advisable to continue the petitioner in service since the petitioner was found to be negligent and careless in discharge of his duties.

5.1 The law on the aspect was discussed with reference to the decisions of the Apex Court. In judging whether termination is simpliciter or punitive, a trite distinction is made between motive of the order and foundation of the order. In Chandra Prakash Shahi v. State of U.P. [(2000) 5 SCC 152], the Supreme Court explained the concept of motive and foundation in respect of probationer as under:

"Motive is the moving power which impels action for a definite result, or to put it differently, motive is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? It if was the factor of general unsuitability of the employee for the post held by him, the act would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the

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allegations of misconduct which were to be true in the preliminary inquiry." (para 29) (emphasis supplied)

5.2 The above statement of law that if the order is punitive and stigmatic in nature, even if the employee concerned is a temporary employee or holding the post as on probation, his dismissal or removal would warrant a regular inquiry and full- fledged compliance of natural justice, emanaged from the early decision of the Apex Court in Anoop Jaiswal v. Government of India [(1984) 2 SCC 369]. In that case, the Apex Court held that it is permissible for the Court to go behind the formal order of discharge so as to find out the real cause of action. In that case, the appellant was an IPS Officer, undergoing training as a probationer, arrived late by about 22 minutes at the place, even though prior intimation was sent about the time on which, the candidates were required to reach the venue. The incident of delayed reporting was considered to be one by the authorities calling for an inquiry and an explanation was sought for from the petitioner and all other probationertrainees who had arrived late. On the basis of explanation, the Director recommended the Government for discharge of the appellant from service. The Government passed order of discharge on the basis of recommendation of the Director with whom, the only ground prevailing was that the appellant did not show any sign of repentance. The High Court dismissed the Writ Petition. However, the Supreme Court allowed the Appeal and held that the order was punitive. The appellant was directed to be reinstated with full benefits.

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5.3 The principle stated was that even the form of the order may be merely a camouflage for order of dismissal actually passed on the basis of misconduct. In such circumstances, the Apex Court stated, it is always open to the court before which the order is challenged, to go beyond the form and ascertain the true character of the order. The Supreme Court held,

"If .... .... .... the court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground where the aggrieved officer is not afforded a reasonable opportunity to defend himself as provided in Article 311(2). It is wrong to assume that it is only when there is a full scale departmental enquiry any termination made thereafter will attract the operation of Article 311(2)." (Paras 11 and 13)

5.4 It is the foundation of the order which really matters. The Supreme Court in Anoop Jaiswal (supra) stated that if from the record and the attendant circumstances of the present case it becomes clear that the real foundation for the order of discharge of the appellant-probationer was the alleged act of misconduct, the impugned order would amount to termination of service by way of punishment and in absence of any enquiry held in accordance with Article 311(2), it was liable to be struck down. The Supreme Court thereafter directed reinstatement of the appellant of the said case in service with the same rank of seniority he was entitled to before the impugned order passed as if it had not been passed at all.

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5.5 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

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terminology is used." (Emphasis supplied) (Para 9)

5.5.1 Having delineated the aforesaid principles, the Apex Court held that the order in the case before it could not be treated as a simple order of retrenchment and that it was an order passed by way of punishment. It was held that such order of dismissal which was passed without holding a regular departmental inquiry cannot be allowed to be sustained.

5.6 In Ratnesh Kumar Choudhary (supra) also the Supreme Court considered its own various decisions on the aspect and after referring to the decision in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21] observed that the proposition of law operating two ways. In certain cases of temporary servants and probationers if the inquiry undertaken about the very conduct forms the motive of termination order, then the termination could not be said to be punitive merely because principles of natural justice have not been followed. In such circumstances, without becoming stigmatic, the employer can exercise its right to terminate service of the employee concerned. In the other line of decisions, the Supreme Court has ruled that if the facts revealed in the inquiry or from the narration of the order itself that the inquiry into the conduct was not the motive but it was a foundation and the allegation of misconduct considered against employee becomes foundation of termination of service of temporary servant or probationer, such action would become punitive and it would make the order legally unsound. The Supreme Court in Ratnesh Kumar Choudhary (supra) thereafter referred to the above quoted

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observations from Gujarat Still Tubes Limited (supra) terming them as instructive.

5.7 In Imranbhai Anwarbhai Majothi (supra), it was thereafter observed and held,

"6. When the impugned order is assessed, evaluated and considered in light of the aforesaid principles, it is even not necessary to adopt the process of lifting of veil. It is not necessary to remove the facade even, for, the order in these very recitals could be manifestly said to be based on allegations of misconduct. The plain reading of order castes stigma. It is a stigmatic action of termination of petitioner's service. Such an action could not have been taken, eventhough the petitioner was a fixed period employee, without giving the petitioner a fullfledge opportunity to defend and thus by holding a regular departmental inquiry. The employer is not allowed to hire and fire employee. Even if the temporary, ad-hoc or probationer employee is driven out of service on the ground of misconduct without holding inquiry and stigma is caste on his career by the punitive order, it is also a facet of behaving with hire and fire attitude by the employer."

5.8 Also stand to support the petitioner another decision of this Court in Special Civil Application No.1095 of 2016 decided on 21st September, 2016 in which, it was observed in paragraph 8 of the judgment that the order ex facie indicated that the basis of the order of termination was criminal complaint lodged against the petitioner. As the order was passed without compliance of

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natural justice, it was required indulgence of the Court, stated the Court, after discussing the position of law in that regard.

6. In light of the aforesaid principles and the position of law on the aspect, if the facts of the present petitioner are re-visited, the petitioner was appointed on 28th September, 2012 as Junior Clerk for a fixed period of five years. His tenure was to come to an end as per appointment order on 28th September, 2017. Pursuant to F.I.R. being C.R. No.I09 of 2016 registered on 19th December, 2016, the petitioner was supplied to the impugned order of termination is dated 21st August, 2017.

6.1 Looking at the contents and the recitals in the impugned order mentions about filing of F.I.R. against the petitioner at Vadodara (Rural) AntiCorruption Bureau Police Station, Vadodara. It was stated that the petitioner was a Clerk appointed. The complainant stated that he received a phone call from the petitioner to meet him in connection with the work of getting the land of the complainant converted into non- agriculture, that the petitioner asked the gratification of Rs.60,000/- which was ultimately agreed for Rs.50,000/- and Rs.30,000/- was given to the petitioner. The impugned order thereafter narrated the details of the charges applied against the petitioner under the Prevention of Corruption Act, 1988, the factum of his suspension and the extension of suspension from time-to-time. It was thereafter stated that since the offence was registered under the Prevention of Corruption Act and since the petitioner had committed a misconduct of asking illegal gratification, his services were liable to be

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terminated. Thus, it was clear from the bare reading of the recitals in the impugned order that the foundation in the impugned order was alleged misconduct of taking bribe for which F.I.R. was registered. By very nature of the contents of the order, the order could be treated as stigmatic. The order was passed without compliance of principles of natural justice. Since the allegation of misconduct was foundation for the penal action taken against the petitioner, above discussed position of law would operate to grant relief to the petitioner.

6.2 While the impugned order will be liable to be quashed and petitioner will be liable to be reinstated, it is clarified that his reinstatement would be for the period which would make up the total period of the fixed period for which he was appointed."

7. Even this Court considered the decision dated

24.07.2020 in the case of State of Gujarat v.

Chetan Rajgor rendered in LPA No.1596 of 2019

and LPA No.841 of 2019 and held that the orders of

dismissal passed in such circumstances are

stigmatic.

8. In light of this, the order of dismissal dated 14.08.2017

is quashed and set aside. The petitioner is ordered to

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be reinstated in service for the remaining tenure of his

term. His tenure was to come an end on 11.09.2017.

The services were terminated on 14.08.2017. In light of