Vaghela Baluben Govindbhai vs Director Of Primary Education
2023 Latest Caselaw 8357 Guj

Gujarat High Court

Vaghela Baluben Govindbhai vs Director Of Primary Education on 4 December, 2023

Author: N.V.Anjaria

Bench: N.V.Anjaria

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     C/SCA/12889/2016                                   ORDER DATED: 04/12/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 12889 of 2016

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                    VAGHELA BALUBEN GOVINDBHAI
                               Versus
              DIRECTOR OF PRIMARY EDUCATION & 5 other(s)
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Appearance:
MRS NASRIN N SHAIKH(2451) for the Petitioner(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 3,4,6
MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 1,2,3,4,5,6
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                               Date : 04/12/2023

                                 ORAL ORDER

Heard learned advocate Mr.Nasrin Shaikh for the petitioner and learned Assistant Government Pleader Ms.Shruti Dhruve and learned advocate Mr.Premal Joshi for the respective respondents.

2. By filing this petition under Article 226 of the Constitution, the petitioner has prayed to set aside order dated 14.3.2016 terminating her services. It is further prayed to set aside the advertisement dated 19.7.2016 and to reinstate the petitioner on the original post.

3. It is the case of the petitioner that she was appointed as Vidya Sahayak in the Anganwadi at Hadana, Taluka Bagasara, District Amreli by order dated 8.4.2008. The appointment of the petitioner was made pursuant to the advertisement and interview wherein the petitioner fared successful. It is the case

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that since the petitioner belonged to a particular community, she was harassed at the work place. The petitioner apprehended her life to be in danger.

3.1 It was by order dated 14.3.2016 that the petitioner's services came to be terminated. In the order it was stated that on 27.2.2016, The district level team paid visit to Hadana Anganwadi Centre and at that time, the petitioner could not clarify about the quantity of food items given to the children as Balbhog and that requisite details about the distribution of the food was not furnished. It was stated that the petitioner was found to be negligent and had committed dereliction in duty, therefore the petitioner was ordered to be discharged from the post of Vidya Sahayak- Anganwadi worker. It is this order which is impugned in this petition.

4. The prayer to set aside the said order and to reinstate the petitioner was opposed by filing affidavit-in-reply to contend that the petitioner could not be said to be in service since she was getting honorarium. It was stated that the programme officer issued complaint against the petitioner about malpractice committed by her in relation to the stock. In the report, illegalities in respect of the conduct of the petitioner was noticed in respect of the material issued at Anganwadi, it was stated in the affidavit. The petitioner was called upon to explain about the misbehavior. The action of the termination was accordingly justified.

5. Examining the challenge to the order of termination, on bare reading of the said order it could be noticed that the same

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is founded on allegations against the petitioner and it is stated that the petitioner conducted herself with negligence and there was dereliction of duty on her part. The allegations of misconduct were thus levelled and the termination was accordingly founded. The order could be said to be stigmatic and punitive since it was clearly on the ground of allegations and misconduct.

5.1 In judging whether the termination is simpliciter or punitive, a trite distinction is made between the motive of the order and foundation of the order. This distinction was explained by the Supreme Court in Chandra Prakash Shahi Vs. State of Uttar Pradesh [(2000) 5 SCC 152]. It was observed thus,

"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)

5.2 In Gujarat Steel Tubes Limited Vs. Gujarat Steel Tubes Mazdoor Sabha [(1980) 2 SCC 593], the Supreme Court observed thus,

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"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 terminology is used." (para 53)

5.3 It is laid down by this court in Chetan Jayantilal Rajgor Vs. State of Gujarat which was Special Civil Application No.4439 of 2017 that whether the order of termination even if passed against the temporary employee or ad-hoc employee is stigmatic and founded on the allegation of misconduct, it is to be preceded by regular departmental inquiry. In this case also the foundation of the order was misconduct and the order became punitive and stigmatic.

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5.4 In Manishbhai Nayanbhai Mod Vs. Vadodara Municipal Corporation [2018 (2) GLR 1636], the petitioner was Assistant Station Officer and was appointed for a fixed term. It was alleged against him that while serving in the Fire Brigade Branch of the Vadodara Municipal Corporation on the post of Assistant Station Officer, petitioner misbehaved with the Telephone Operator and tried to injured Telephone Operator physically. In the impugned order it was mentioned that while being on the sensitive post petitioner acted with negligency and carelessness in discharge of duties. Show-cause notice was issued against the petitioner and his reply was solicited. Thereafter his services put to an end, this Court referred all the aforesaid decisions to come to the conclusion that the order was founded on the allegations of misconduct and that it was punitive in nature casting stigma. It was held that, "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."

5.4.1 Decision in Manishbhai Nayanbhai Mod (supra) was challenged by way of Letters Patent Appeal No.189 of 2018, which came to be dismissed. The Division Bench, confirming the decision in Manishbhai Nayanbhai Mod (supra), observed as under.

"4.1 ... ... ... The above act on part of the competent authority of appellant - Corporation was not only stigmatic, but contrary to law laid down by the Apex Court to which reference is made by learned Single Judge and distinguishing the facts of the present case it

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was found that termination was punitive. As a necessary corollary, when there is a breach of procedure of instituting full-fledged departmental inquiry, particularly, when termination order referred to following of Gujarat Civil Services [Discipline & Appeal] Rules, 1971, the issuance of show cause notice, receiving reply and then to take final decision to terminate services of an employee was unjust, unreasonable, arbitrary, in breach of the Rules, 1971, violative of principles of natural justice and Article 14 of the Constitution as it would not make any difference whether the employee was appointed temporarily for a fixed term on a fixed salary incorporating various conditions."

5.5 In another decision in Sandip Ajitsinh Vaghela v. State of Gujarat being Special Civil Application No.12071 of 2018 decided on 26th February, 2019 the same question had arisen where also the petitioner was Junior Clerk employed on temporary basis. In Rahul Aydanbhai Vank v. State of Gujarat being Special Civil Application No.889 of 2018 decided on 5th September, 2018, the petitioner was a contractual employee who was dismissed on the ground of insubordination. The order was found to have been passed on the allegation of misconduct. Same principles were applied and held that services could not have been terminated without undergoing the inquiry.

5.5.1 The aforesaid decision in Rahul Aydanbhai Vank (supra) was also confirmed in Letters Patent Appeal No.841 of 2019. In the following paragraph, the Letters Patent Bench referred to Manishbhai Nayanbhai Mod (supra) and other decisions to come to the following conclusion to clearly observe that full-scale formal inquiry was requirement of law before the

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services could have been terminated.

"8. Even decision relied by learned Assistant Government Pleader in the case of Chaitanya Prakash and Another v. H. Omlarappa reported in (2010) 2 SCC 623 quotes decision in the case of Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences [(2002) 1 SCC 520] where three tests are enumerated to determine whether in substance an order of termination is punitive or not. We find in the present case all above tests namely a full scale formal inquiry, allegation involving moral turpitude or misconduct and culminating into guilt stands satisfied and therefore we have no hesitation to hold that the learned Single Judge committed no error of fact or law or jurisdiction warranting interference in this appeal under Clause 15 of the Letters Patent."

When the impugned order is considered in light of the above principles and the position of law, it could be well discerned that the the event of filing of F.I.R. against the petitioner was treated as base and it was concluded readily by the respondents that the petitioner had committed misconduct for accepting the bribe. Upon this foundation, the termination was effected. It was on the ground of misconduct and therefore the stigmatic order, which could not have been passed without a full scale inquiry.

An attempt was made in vain by learned advocate for the respondents that there was compliance of natural justice as the notice was issued to the petitioner. A mere notice would not suffice. No inquiry was held, no charge was framed against the petitioner. Without issuing the charge and without putting the petitioner to knowledge of the allegation which he was to precisely answer, the principles of natural justice could not be said to be followed when the order was founded on misconduct. As held by the Division Bench of this Court in the

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judgment above, it necessitated a full scale inquiry against the petitioner after issuing show-cause notice and by framing appropriate charge, conducting it in accordance with the natural justice.

5.5.2 The decision in Chetan Rajgor (supra) was confirmed by Division Bench of this court in Letters Patent Appeal No.1596 of 2019, decided on 24.7.2020.

5.6 In view of the above, the order of termination cannot sustain as is passed without framing charges and without holding departmental inquiry.

6. The only contention which could be raised by learned advocate for the respondent was based on the condition incorporated in the appointment order of the petitioner. It was submitted that the petitioner who was appointed as Anganwadi worker was not a government servant and that what she was paid was only an honorarium.

6.1 The submission could hardly be countenanced inasmuch as the conditions viewing the appointee as appointed on honorarium could be said to be only a facade. The appointment order reflects that the appointment of the petitioner was pursuant to the interview by interview committee. Undoubtedly the relationship of employer an employee was created, once the respondent authorities appointed the petitioner on the post. The attempt on part of the respondents to disown the employment of the petitioner on the basis of the aforesaid condition, is not permissible. The petitioner was in public employment appointed by the respondent authorities which are 'state'. In that view, the

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petitioner would be entitled to all the rights available in public employment in terms of the Article 14 and 16 of the Constitution. The order of termination, as already stated evidently stigmatic in nature.

6.2 Learned advocate for the respondent was also at his receiving end when asked whether any charge-sheet was issued and departmental inquiry was conducted.

6.3 As held by the Division Bench of this court in Chetan Rajgor (supra) being mere issuance of notice would not suffice when the order is stigmatic. It has to be preceded with full- fledged inquiry. The principles laid down in the decision of the Chetan Rajgor (supra) and confirmed by the Division Bench, would apply.

6.4 In that view, the impugned order dated 14.3.2016 terminating the services of the petitioner is hereby set aside. The petitioner is directed to be reinstated on the post which she was given appointment.

6.5 As far as the payment of salary for the intervening period is concerned, the petitioner shall not be paid any amount as the principle of 'no work, no pay' would apply.

7. The petition is allowed to said extent.

(N.V.ANJARIA, J) Manshi