Gujarat High Court
State Of Gujarat vs Manojkumar Vajabhai Parmar on 17 March, 2023
Bench: Hasmukh D. Suthar
C/LPA/300/2023 ORDER DATED: 17/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 300 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 11785 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 300 of 2023
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STATE OF GUJARAT
Versus
MANOJKUMAR VAJABHAI PARMAR
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Appearance:
MR KURVEN DESAI, AGP for the Appellant(s) No. 1,2
MR. JIT P PATEL(6994) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE H. D. SUTHAR
Date : 17/03/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. This appeal is filed under Clause 15 of the
Letters Patent against the oral judgment dated
19.04.2022 rendered by the learned Single Judge in
Special Civil Application No.11785 of 2020 by which
the learned Single Judge has allowed the petition
filed by the present respondent - original
petitioner.
2. It is the case of the original petitioner that
he came to be appointed as Revenue Talati, Class-III
C/LPA/300/2023 ORDER DATED: 17/03/2023
on 25.09.2012 and came to be posted at Mamlatdar
Office, Patan. Thereafter, on 21.01.2020, FIR came to
be registered against him before ACB Police Station,
Patan for the offence punishable under the provisions
of the Prevention of Corruption Act.
3. The original respondent No.2 - Collector issued
a show-cause notice on 26.02.2020 to which the
original petitioner gave reply on 04.03.2020 and
pointed out that he has been falsely implicated in
the FIR in question. Thereafter, on 07.03.2020, the
original respondents passed an order whereby the
services of the petitioner came to be terminated
without holding departmental inquiry. Petitioner,
therefore, filed the captioned petition.
4. The learned Single Judge, vide impugned oral
oral judgment dated 19.04.2022 allowed the said
petition and therefore appellant - State has
preferred present appeal.
5. Heard learned AGP Mr. Kurven Desai for the
appellants - original respondents and learned
advocate Mr.Jit P. Patel for the respondent -
original petitioner.
6. Learned AGP has assailed the impugned judgment
passed by the learned Single Judge on the ground that
the services of the petitioner came to be terminated
as per the order of appointment. Learned AGP has
C/LPA/300/2023 ORDER DATED: 17/03/2023
referred clause 14(A) of the order of appointment and
submitted that services of the contractual employee
can be terminated after giving one month's notice or
by making payment of one month pay without issuance
of notice. It is submitted that the original
petitioner was contractual employee and therefore it
was not necessary for the original respondents to
conduct departmental inquiry against the petitioner.
Thus, the respondent has not committed any error
while terminating the services of the petitioner
mainly on the ground that the FIR under the
provisions of the Prevention of Corruption Act has
been filed against him.
7. Learned AGP thereafter submitted that the
learned Single Judge has committed an error while
placing reliance upon the decision rendered on
24.07.2020 by the Division Bench of this Court in the
case of State of Gujarat v. Chetan Jayantilal Rajgor
passed in Letters Patent Appeal No.1596 of 2019.
Learned AGP submitted that against the said decision
rendered by the Division Bench of this Court, the
State has preferred SLP before the Hon'ble Supreme
Court and the said SLP is still pending. Learned AGP,
therefore, urged that the impugned judgment passed by
the learned Single Judge be set aside.
8. On the other hand, learned advocate Mr. Jit P.
Patel appearing for the respondent - original
petitioner has opposed this appeal. Learned advocate
C/LPA/300/2023 ORDER DATED: 17/03/2023
would mainly submit that the respondent authority has
terminated the services of the petitioner mainly
placing reliance upon the FIR filed against the
petitioner under the provisions of the Prevention of
Corruption Act. It is contended that the impugned
order passed by the respondent authority is stigmatic
order and therefore the respondent authority was
required to hold the departmental inquiry before
terminating the services of the petitioner. At this
stage, learned advocate for the petitioner has placed
reliance upon the order dated 11.01.2023 passed by
the Division Bench of this Court in Letters Patent
Appeal No.1416 of 2022. It is submitted that the
Division Bench of this Court, after considering the
decision rendered by this Court in the case of Chetan
Jayantilal Rajgor (supra) and another decision
rendered in the case of Deputy District Development
Officer v. Devatbhai Ramsibhai Bhoda in Letters
Patent Appeal No.99 of 2021, has dismissed the appeal
filed by the State. Learned advocate Mr. Patel
submitted that the Division Bench of this Court has
also taken note of the pendency of SLP filed by the
State against the order passed by this Court in the
case of Chetan Jayantilal Rajgor (supra). Learned
advocate submit that the issue involved in the
present appeal is squarely covered by the aforesaid
decision dated 11.01.2023 and therefore the present
appeal be dismissed.
9. Having heard the learned advocates appearing for
C/LPA/300/2023 ORDER DATED: 17/03/2023
the parties and having gone through the material
placed on record, it would emerge that the original
petitioner was appointed in the year 2012. Order of
appointment is placed on record. It is the case of
the respondents that petitioner was appointed on
contract basis on certain terms and conditions and as
per Clause 14(A) of the order of appointment, service
of the petitioner can be terminated after giving one
month's notice. It is true that the respondents
issued show-cause notice to the petitioner, however,
without holding departmental inquiry, his services
came to be terminated vide order dated 07.03.2020. If
the order of termination is carefully examined, it is
revealed that while terminating the services of the
petitioner, the respondent has mainly placed reliance
upon the FIR filed against him under the provisions
of the Prevention of Corruption Act. Thus, this Court
is of the view that the order of termination passed
by the respondent authority is a stigmatic order and
therefore the respondent was required to conduct
departmental inquiry against the petitioner as per
the decision rendered by the Division Bench of this
Court in the case of Chetan Jayantilal Rajgor
(supra).
10. In identical matter, the Co-ordinate Bench of
this Court has recently passed an order on 11.01.2023
in Letters Patent Appeal No.1416 of 2022, wherein,
the Division Bench of this Court has observed in para
3.3, 3.4, 4, 4.1, 5.1, 5.2 and 6 as under:
C/LPA/300/2023 ORDER DATED: 17/03/2023
"3.3 The position of law discussed in Chetan
Jayantilal Rajgor (supra) came to be highlighted
and reiterated by the Division Bench as under.
"8.1 In the cognate matter also, almost similar
observations are visible and as such, we do not
propose to over burden the present order. These
observations if to be examined in the background
of present fact situation, the same are found to
be just and proper. It appears here that the
original petitioners were dealt with by issuance
of show cause notice with respect to serious
charges levelled against them and the notice was
given stating as to why in terms of their
appointment, they may not be dismissed from the
services. Now, this show cause notice appears to
have been replied at length by the original
petitioners and subsequently, by giving a brief
opportunity, without conducting full-scale
departmental inquiry, an order of dismissal came
to be passed. This procedure which has been
adopted by the department against both the
original petitioners and undisputedly, no
departmental inquiry having been conducted
against them, the learned Single Judge, on the
basis of relevant proposition of law laid down
by the Apex Court, was justified in his view
that in the absence of fullscale departmental
inquiry, the services of the writ petitioners
cannot be terminated in the manner in which it
has been put to an end. We see no infirmity in
the order passed by the learned Single Judge,
particularly having gone through the relevant
record made available to us.
8.2 This view which has been taken by the
learned Single Judge, to which we are also in
agreement, stands fortified by few decisions by
the Division Bench of this Court which have
already been relied upon by the learned Single
Judge.
8.3 The bone of contention of appellants - State
authorities is that since the original
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petitioners are employed on a contract basis and
fixed pay, the Department is not under an
obligation to conduct a detailed fullscale
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.
10. Yet in further decision which is brought to
our notice rendered in Special Civil Application
No.10928 of 2014, decided on 29.9.2014, in which
also the Division Bench has examined even the
status of contractual employment. But since we
are not called upon nor concerned with the said
issue to be dealt with in the present case, we
refrain ourselves from commenting anything and
leaving the said issue as it is.
C/LPA/300/2023 ORDER DATED: 17/03/2023
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
submissions made by learned counsel for the
appellants in both these appeals.
12. Additionally, we are also of the opinion
that these Letters Patent Appeals have arisen
out of the learned Single Judge's decision. The
scope of Letters Patent Appeal is well defined
by the Apex Court in the case of Management of
Narendra & Company Private Limited v. Workmen of
Narendra & Company, reported in 2016 LawSuit
(SC) 94. Relevant Para.5 of the said decision is
reproduced hereinafter : "Once the learned
Single Judge having seen the records and 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.
C/LPA/300/2023 ORDER DATED: 17/03/2023
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." Hence, we see no other
distinguishing circumstance pointed out by the
learned counsel for the appellants and as such,
we are in complete agreement with the view taken
by the learned Single Judge."
3.4 After quoting paragraph Nos.8.1 to 12, from
the decision in Chetan Jayantilal Rajgor (supra),
also affirmed the position that the cases where
the termination order caste stigma, a full
fledged departmental inquiry would have to be
conducted before effecting termination.
"In both the aforesaid judgments, the entire
case law has elaborately been discussed and it
is held that in absence of full scale
departmental inquiry, services of the
delinquent cannot be terminated if the order of
termination is found to be stigmatic and hence
we are unable to take a different view as the
same is based on numerous judgments referred to
in those decisions."
4. Learned Assistant Government Pleader submitted
that in one of the cases, involving the same
issue, in State of Gujarat Vs. Sanjay Bhanubhai
Makwana being Special Leave to Appeal No.15479 of
2021, is pending and that notice is issued by the
Apex Court.
4.1 It was sought to be submitted that even
against decision in LPA No. 1596 of 2019, SLP (C)
No. 013220 of 2020 is pending. It was however
fairly stated that no stay is granted by the Apex
Court.
xxx xxx xxx
5.1 Incidentally, the aspect of pendency of
Special Leave Petition against the decision in
Letters Patent No.1596 of 2019 was referred to in
C/LPA/300/2023 ORDER DATED: 17/03/2023
Dipeshkumar Somabhai Vasava (supra) and it was
observe thus,
"We are conscious of the pendency of this
matter, before the Apex Court with a Special
Leave to Appeal (C) No.013220 of 2020, where
the judgment of Letters Patent Appeal No.1596
of 2019 is challenged by the State. No details
of date beyond 15.2.2021 is available.
According to Mr.Jayneel Parikh, learned
Assistant Government Pleader, no date
thereafter is being shown. However, that itself
may not be the ground for the Court to
entertain or grant stay in this petition with
no specific order of stay of the earlier order.
The request of keeping the matter pending also
does not deserve entertainment."
5.2 As the issue is covered as above by various
decision of this Court including in this Court in
Chetan Jayantilal Rajgor (supra), Deputy District
Development Officer (supra) and Dipeshkumar
Somabhai Vasava (supra), we do not see any reason
to entertain the present challenge.
6. We make it clear that appellant authorities
are not precluded from proceeding against the
respondent employee in accordance with law."
11. We are of the view that the issue involved in
the present appeal is squarely covered by the
aforesaid order passed by the Division Bench of this
Court and therefore we are not inclined to entertain
the present appeal.
12. However, it is clarified that the appellant
authorities are not precluded from proceeding against
the respondent employee in accordance with law.
C/LPA/300/2023 ORDER DATED: 17/03/2023
13. We have also gone through the reasoning recorded
by the learned Single Judge while passing the
impugned judgment and we are of the view that learned
Single Judge has not committed any error while
passing the impugned order and therefore no
interference is required in the present appeal.
14. Accordingly, appeal stands dismissed. In view of
dismissal of the appeal, civil application does not
survive and accordingly it stands disposed of.
(VIPUL M. PANCHOLI, J)
(H. D. SUTHAR, J)
LAVKUMAR J JANI
