Gujarat High Court
State Of Gujarat vs Jitendra Savajibhai Sorathiya on 10 August, 2023
Bench: Ashutosh Shastri
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 728 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 14589 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
In
R/LETTERS PATENT APPEAL NO. 728 of 2022
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STATE OF GUJARAT
Versus
JITENDRA SAVAJIBHAI SORATHIYA
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Appearance:
MR JAYNEEL PARIKH, AGP for the Appellant(s) No. 1,2,3
SUDHANSHU A JHA(8345) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 10/08/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. By way of this Letters Patent Appeal under Clause 15 of
the Letters Patent, appellants- original respondents have
assailed the judgment and order passed by learned Single Judge
on 3.10.2019 in Special Civil Application No.14589 of 2019.
2. Background of facts which has given rise to present
Letters Patent Appeal is that original petitioner, i.e. respondent
herein, was appointed as Surveyor Class-III and was initially
posted at Surat Branch. Petitioner was appointed on 10.11.2014
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for a fixed period of 5 years on a fixed salary and appointment
was purely on contractual basis. Services of the petitioner came
to be terminated on account of reason of his involvement in
criminal case at a relevant point of time, which was registered
before DCB Police Station, Surat on 2.4.2019 for offences
punishable under Sections 406, 420, 465, 466, 467, 468, 471,
472, 474, 120(B) and 114 of Indian Penal Code and was arrested
on 13.4.2019. Said involvement was treated by authority as
violation of one of the conditions of contractual appointment
and in view of the guidelines and keeping in view the
Government Resolution, services of original petitioner were put
to an end on 21.5.2019 by the Chief Town Planner, Gandhinagar
and it is this order of termination which was made the subject
matter of challenge in the main writ petition. Said petition came
up for consideration before learned Single Judge on 3.10.2019
and by a detailed order, after hearing both learned advocates,
learned Single Judge keeping in view the proposition of law was
pleased to allow the petition with certain riders and it is against
this order, present Letters Patent Appeal under clause 15 of the
Letters Patent has been filed.
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3. Learned Assistant Government Pleader Mr. Jayneel Parikh
appearing on behalf of appellants has submitted that order
passed by learned Single Judge is not in consonance with the
settled proposition of law. Original petitioner was purely on a
contractual basis and moment there appears to be any violation
of condition of employment, it is always open for the authority to
terminate the services. On the contrary, same can be even
without service of notice. According to Mr. Parikh, guidelines
have been prescribed by Government Resolution on 28.3.2016
and when petitioner's involvement was in a serious commission
of crime, as stated above, right of termination cannot be
curtailed by learned Single Judge by allowing the petition and as
such order being suffering from vice of non-application of mind,
be set aside.
4. Learned AGP Mr. Jayneel Parikh has further submitted
that reasons assigned by learned Single Judge are basically
based on proposition of law laid down by Hon'ble the Apex
Court, but facts of said cases which have been relied upon are
distinct than what are there on the hand. Hence, looking to the
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factual background of present case as well, it is desirable in the
interest of justice that serious error which has been committed
by learned Single Judge be corrected in the interest of justice.
No other submissions have been made.
5. As against this, learned advocate Mr. Sudhanshu Jha
appearing on behalf of respondent herein, namely original
petitioner, has vehemently contended that order passed by
learned Single Judge is perfectly justified in view of the settled
proposition of law and while exercising the discretion, learned
Single Judge has applied his mind on the controversy and based
upon settled proposition of law laid down by Hon'ble the Apex
Court, discretion is exercised and as such when said discretion
has been exercised in a just and proper manner after assigning
proper reasons, impugned order cannot be construed in any
manner as perverse or suffering from any infirmity. When that
be so, possible view adopted by learned Single Judge cannot be
disturbed in the interest of justice, especially when learned
Assistant Government Pleader has not been able to point out
any distinguishable circumstance or material which might have
been lost sight of. Hence, well-reasoned order deserves no
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interference in respectful submission of learned advocate.
6. Having heard learned advocates appearing for the parties
and having gone through the material on record, it prima facie
appears from the tenor of order that basic controversy involved
in the petition has been clearly gone into by learned Single
Judge and while coming to the conclusion, specific case laws
have been relied upon, which are relevant to the issue and as
such, when such is the exercise, a well-reasoned order in our
considered view does not call for any interference. To what
extent, application of mind is reflected in the order which we
may justify here by quoting relevant observations contained in
the impugned order:-
"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 pass-
books, that he mentioned wrong information in the 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.
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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 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 probationer-trainees 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
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the order was punitive. The appellant was directed to be
reinstated with full benefits.
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.
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
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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."
(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
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
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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 full-
fledge 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 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 petition are re-visited, the
petitioner joined his duties pursuant to his selection on
17.11.2014 as a Surveyor in the Surat District for a fixed period
of five years as stated in the appointment order. His tenure was
to come to an end as per appointment order, on 16th November,
2019. However, in view of the aforementioned impugned
termination order dated 21.5.2019, it was put to an end in the
middle of the five years.
6.1 Looking at the contents and the recitals mentioned in the
impugned order about filling of the F.I.R., it was stated in the
impugned order that since the petitioner was involved in the
criminal act and thereby since committed misconduct, his
services were liable to be terminated.
6.2 Thus, it was clear from the bare reading of the recitals in the
impugned order that the foundation of the impugned order was
the alleged involvement of the petitioner in the crime mentioned
in the FIR. By very nature of the contents of the impugned 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 the foundation for the penal action
taken against the petitioner, above discussed position of law
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would operate to grant relief to the petitioner."
7. In view of the aforesaid conclusion, which has been
arrived at and the observations contained in the order, the order
requires no interference in our considered opinion. But, then
further fact which has also been brought in the order to justify
the ultimate conclusion by learned Single Judge is also worth
quoting hereunder and as such, we are constrained to quote
hereunder the relevant conclusion:-
"7. As a result of the above, the impugned order dated 21.5.2019
passed by the respondent No.2 would be liable to be set aside
since it was founded on the allegations of misconduct and is
stigmatic in nature but passed without compliance of natural
justice and without holding any full-scale department inquiry.
Furthermore, the petitioner's appointment being on fixed period
of five years, it is clarified that the reinstatement would be for
the remainder period which would make up the total period of
five years fixed period, for which he was appointed.
8. As a consequence of above discussion and reasons, the
impugned order dated 21.5.2019 passed by the respondent-2
terminating services of the petitioner, is hereby set aside. The
respondents are directed to reinstate the petitioner within a
period of eight weeks from the date of receipt of this order on
the original post with continuity of service and with payment of
salary/wages for the interregnum as well as the consequential
benefits which may arise, as if the order of termination was
never passed. The reinstatement of the petitioner directed as
above shall be for the period upto making of the total original
period fixed for his employment as per order of appointment.
The resultant monetary benefits to be paid to the petitioner
within a period of eight weeks from the date of receipt of the
present order.
8.1. The respondents are not precluded from proceeding against the
petitioner in accordance with law."
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8. In view of the aforesaid discussion and in view of the facts
which are existing on record, we are of the opinion that while
exercising discretion, learned Single Judge has not committed
any error much less the error of law which may call for any
interference.
9. Yet another circumstance which we cannot ignore is that
in similar set of circumstances, when another Letters Patent
Appeal is also brought to our notice by learned advocate
appearing on behalf of the respondent herein and keeping the
said proposition and the observations contained in that decision
of Letters Patent Appeal No.633 of 2022, there appears to be no
error committed by learned Single Judge and apart from that,
issue which is stated to be pending before Hon'ble the Apex
Court has also been dealt with and as such remotely, we are not
able to construe that order is suffering from any vice of non-
application of mind and when that be so, there is hardly any
reason for us to substitute the view adopted by learned Single
Judge since there is no distinguishable material brought before
us by the other side. Hence, this is not a fit case in which any
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substitution view is permissible or possible. Hence, appeal
lacks merit.
10. At this stage, we are also of the opinion that law on the
issue of exercising appellate jurisdiction is well propounded by
Hon'ble the Apex Court and since we have considered the same,
we deem it proper to quote hereunder the relevant observations
contained in paragraph 5 of the decision reported in
Management of Narendra & Company Private Limited v.
Workmen of Narendra & Company reported in (2016) 3
SCC 340:
"5. Once the learned Single Judge having seen the records had
come to the conclusion that the industry was not functioning
after January 1995, there is no justification in entering a
different finding without any further material before the
Division Bench. The Appellate Bench ought to have noticed
that the statement of MW 3 is itself part of the evidence
before the Labour Court. Be that as it may, in an intra-court
appeal, on a finding of fact, unless the Appellate Bench
reaches a conclusion that the finding of the Single Bench is
perverse, it shall not disturb the same. Merely because
another view or a better view is possible, there should be no
interference with or disturbance of the order passed by the
Single Judge, unless both sides agree for a fairer approach on
relief."
11. In view of the aforesaid discussion and in view of the
circumstances which are brought to our notice, we are of the
clear opinion that no case is made out to call for any
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interference. As a result of this, Letters Patent Appeal being
merit-less stands DISMISSED and as a consequent thereof,
impugned order passed by learned Single Judge dated
3.10.2019 in Special Civil Application No.14589 of 2019 is
hereby confirmed.
12. Since main appeal is dismissed, pending Civil Application
does not survive for further consideration and hence, same is
also DISPOSED OF.
Sd/-
(ASHUTOSH SHASTRI, J)
Sd/-
(DIVYESH A. JOSHI,J)
OMKAR
