State Of Gujarat vs Rajesh Manohar Tarode
2023 Latest Caselaw 2122 Guj

     C/LPA/219/2023                            ORDER DATED: 07/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 219 of 2023

           In R/SPECIAL CIVIL APPLICATION NO. 4621 of 2020

                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
              In R/LETTERS PATENT APPEAL NO. 219 of 2023
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                         STATE OF GUJARAT
                               Versus
                      RAJESH MANOHAR TARODE
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Appearance:
MR KURVEN DESAI, AGP for the Appellant - STATE
MR RAKESH R PATEL(3239) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
       and
       HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                           Date : 07/03/2023

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

1. This Appeal is filed under Clause 15 of the Letters Patent Act by the appellants - original respondents against oral judgment dated 08.02.2022 rendered by the learned Single Judge in Special Civil Application No. 4621 of 2020, whereby the learned Single Judge has allowed the petition filed by the present respondent - original petitioner and direction is given to the present appellants to reinstate the original petitioner with consequential benefits.

2. Heard learned Assistant Government Pleader Mr. Kurven Desai for the appellants and learned advocate Mr. Rakesh Patel

C/LPA/219/2023 ORDER DATED: 07/03/2023

for the respondent - original petitioner.

3. Learned Assistant Government Pleader Mr. Desai has mainly submitted that the original petitioner was appointed as an Assistant Hospital Administrator by an order dated 18.12.2007. The terms and conditions of the appointment order indicate that the said appointment was contractual for a period of 11 months from 15.01.2008 to 30.11.2008. Apart from the other conditions, Condition No. 5 stipulated that the contract can be terminated with one months notice from either side. Thereafter the appointment of the petitioner came to be extended from time to time and the petitioner was in service till the date of his termination which was made by the impugned order dated 26.12.2019. Learned Assistant Government Pleader has referred to the order of termination copy of which is placed at Page No. 48 of the compilation.

3.1 At this stage, the learned Assistant Government Pleader further submitted that the FIR under Section 354 of the Indian Penal Code came to be registered against the petitioner alleging sexual harassment by the victim. Thereafter, the concerned Complaint Committee which was constituted pursuant to the decision rendered by the Hon'ble Supreme Court in the case of Vishakha and Ors V/s State of Rajasthan [Vishakha Guidelines] had made an inquiry and during the course of the said inquiry, the concerned committee recorded the statement of various persons including complainant and other victims, the said committee also recorded the statement of the original petitioner and after inquiry the concerned committee submitted the report on 27.11.2019.

       C/LPA/219/2023                                  ORDER DATED: 07/03/2023




3.2    Learned         Assistant   Government         Pleader          thereafter

submitted that during the course of said inquiry the concerned committee gave opportunity of hearing to the original petitioner and thereafter the impugned order came to be passed by the competent authority on the basis of the said report and after relying upon the Clause-5 of the order of appointment. Learned Assistant Government Pleader therefore urged that when the serious allegations were leveled against the original petitioner and the impugned order of termination came to be passed after giving opportunity of hearing to the petitioner, the learned Single Judge ought not to have allowed the petition and therefore the impugned order passed by the learned Single Judge requires to be quashed and set aside.

3.3 Learned Assistant Government Pleader would thereafter submit that the petitioner had not worked after the date of his termination and therefore the learned Single Judge ought not to have granted the back wages to the petitioner.

3.4 Learned Assistant Government Pleader further submitted that the learned Single Judge has placed reliance upon the decision rendered by the Division Bench of this Court in the case of State of Gujarat and Ors V/s Chetan Jayantilal Rajgor in Letters Patent Appeal No. 1596 of 2019 however, against the said order passed by this Court, the State has preferred Special Leave Petition before the Hon'ble Supreme Court being Special Leave Petition (C) No. 013220 of 2020 and the said Special Leave Petition is still pending. Therefore, learned Assistant Government Pleader submitted that learned Single Judge

C/LPA/219/2023 ORDER DATED: 07/03/2023

ought not to have placed reliance upon the said decision.

3.5 Learned Assistant Government Pleader has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Inspector of Panchayats and District Collector, Salem V/s S. Arichandran reported in 2022 (0) AIJEL- SC 69875.

3.6 The learned Assistant Government Pleader therefore urged that the impugned order passed by the learned Single Judge be quashed and set aside.

4. On the other hand, learned advocate Mr. Patel has referred the reasoning recorded by the learned Single Judge. It is submitted that the issue involved in the present petition is squarely covered by the decision rendered by this Court in Special Civil Application No. 7166 of 2019. It is submitted that even in case of contractual appointment before terminating the services of the employee full-scale Departmental Inquiry is required to be conducted if the order is stigmatic. Learned advocate therefore urged that the present Appeal be dismissed.

5. We have considered the submissions canvased by the learned advocates appearing for the parties and we have also perused the material placed on record. It would emerge from the record that original petitioner came to be appointed as Assistant Hospital Administrator in District Hospital, Navsari vide order dated 18.12.2007 on certain terms and conditions for a period of 11 months. Clause-5 provides that the contract

C/LPA/219/2023 ORDER DATED: 07/03/2023

can be terminated with one months written notice from either side. It would further reveal from the record that FIR came to be registered against the petitioner on 25.09.2019 under section 354 of the Indian Penal Code. A complaint was also given by the complainant before the committee constituted to inquire into the allegations under the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the Act of 2013). It transpires from the record that the committee constituted under the provisions of the Act of 2013 had recorded the statement of the complainant and the other persons and during the course of said inquiry the statement of original petitioner was also recorded by the said committee. Thereafter the said committee submitted its report on 27.11.2019. Copy of the said report is produced on record at Page No. 50 of the compilation. If the said report is carefully examined, it is revealed that after recording certain findings the committee has observed in second last paragraph of the report that the proceedings pursuant to the FIR filed against the petitioner with the Navsari Town Police Station is pending before the concerned Court and since the matter is a judicial matter, therefore the committee is not in a position to give any opinion with regard to the same and the decision which will be taken by the concerned Court can be said to be final decision.

6. At this stage, it is pertinent to note that learned advocate Mr. Patel has placed on record the order of acquittal passed by the Chief Judicial Magistrate, Navsari on 07.02.2023. By way of the said order dated 07.02.2023, the competent criminal Court had acquitted the original petitioner from the charges leveled

C/LPA/219/2023 ORDER DATED: 07/03/2023

against him.

7. Thus from the report submitted by the committee constituted under the Act of 2013, the said committee had not given any opinion against the original petitioner. Inspite of that the original respondent - authority had passed an order on 26.12.2019 relying upon the so called report of the said committee. In the impugned order dated 26.12.2019, there is a reference with regard to the FIR filed against the original petitioner and about the report submitted by the committee and thereafter the authority has placed reliance upon Clause-5 of the order of appointment. It is pertinent to note at this stage that though Clause-5 of order of appointment is referred in the impugned order, the services of the petitioner came to be terminated with immediate effect without complying to the condition stated in Clause-5 of the order of appointment. Learned Assistant Government Pleader is not in a position to point out from the record that one months notice was issued to the original petitioner before terminating his services. Thus on one hand the original respondent authority has placed reliance upon the Clause-5 of the order of appointment while on the other hand the condition stipulated in the said order of appointment has not been complied with by the concerned authority.

7.1 From the record we are of the view that the order of termination passed against the original petitioner is stigmatic and therefore the original respondent authority was required to conduct full fledged departmental inquiry against the petitioner. It is not in dispute that the respondent authority has

C/LPA/219/2023 ORDER DATED: 07/03/2023

not conducted full fledged departmental inquiry and merely placed reliance upon the so called report dated 27.11.2019 submitted by the committee constituted under the Act of 2013. As observed hereinabove, in the said report the committee has not stated against the original petitioner and therefore the respondent authority has committed error while relying upon the said report.

7.2 At this stage, this Court would like to refer to the observations made by the learned Single Judge in identical petition being Special Civil Application No. 7166 of 2019. The learned Single Judge has reproduced relevant paragraph of the said order wherein it has been specifically held by this Court that whenever any charge is leveled 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.

7.3 In the case of Inspector of Panchayats and District Collector [Supra] the facts before the Hon'ble Supreme Court were with regard to the disciplinary inquiry conducted against the concerned employee and during the course of the said inquiry it was revealed that the authority had violated the principles of natural justice by not supplying relevant documents and the report. The Hon'ble Supreme Court in the facts of the said case quashed and set aside the order of termination and granted liberty to the employer to provide the inquiry report to the delinquent and to give opportunity to submit his comment on the said report and thereafter to pass appropriate order.

        C/LPA/219/2023                                   ORDER DATED: 07/03/2023




7.4     We are of the view that the aforesaid decision would not

render any assistance to the case of the present appellants.

8. At this stage, it is pertinent to note that the learned Single Judge while passing the impugned order and while giving directions to the original respondents - present appellants has granted liberty to the respondents to proceed against the petitioner after holding a proper departmental inquiry. Thus, such liberty is already reserved by the learned Single Judge.

9. We have also gone through the reasoning recorded by the learned Single Judge and are of the view that no error is committed by the learned Single Judge while passing the impugned order and therefore no interference is required in the present appeal. Accordingly this Appeal is dismissed.

10. In view of dismissal of the main Appeal, Civil Application would not survive.

(VIPUL M. PANCHOLI, J)

(HEMANT M. PRACHCHHAK,J) SHRIJIT PILLAI