State Of Gujarat vs Himanshubhai Jethabhai Bhadoliya
2024 Latest Caselaw 556 Guj

Gujarat High Court

State Of Gujarat vs Himanshubhai Jethabhai Bhadoliya on 22 January, 2024

Author: N.V.Anjaria

Bench: N.V.Anjaria

                                                                                         NEUTRAL CITATION




     C/LPA/1420/2022                                      ORDER DATED: 22/01/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 1420 of 2022
           In R/SPECIAL CIVIL APPLICATION NO. 13069 of 2019
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
             In R/LETTERS PATENT APPEAL NO. 1420 of 2022
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                           STATE OF GUJARAT
                                 Versus
                    HIMANSHUBHAI JETHABHAI BHADOLIYA
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Appearance:
MR SANJAY UDHWANI, AGP for the Appellant(s) No. 1,2
MR VAIBHAV A VYAS(2896) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 22/01/2024

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned Assistant Government Pleader Mr.Sanjay Udhwani for the appellant State and learned advocate Mr.Vaibhav Vyas for the respondent.

2. The present Letters Patent Appeal is directed against judgment and order dated 24.3.2022 passed by learned single Judge, whereby learned single Judge relied on the decision of Division Bench of this court in State of Gujarat Vs. Chetan Jayantilal Rajgor which was Letters Patent Appeal No.1596 of 2019 decided on 24.7.2020, issuing the following final directions, extracting from para 9 of the order of learned single Judge, "Accordingly, the order impugned dated 03.08.2015

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passed by the respondent authority is quashed and set aside. The petitioner is ordered to be reinstated with all consequential benefits on the same terms and conditions. Accordingly, while quashing the order impugned, the respondents are directed to reinstate the petitioner on his post of Revenue Talati, Class-III. In other words, since the order of termination is set aside, the respondents are directed to take back the petitioner in service on his original post with continuity of service for the interregnum as well as consequential benefits as if the order of termination was not passed. Reinstatement of the petitioner shall be up to the original tenure of engagement as per the order of appointment. The monetary benefits shall be paid to the petitioner within a period of ten weeks. The respondents are however not precluded from proceeding against the petitioner in accordance with law. Petition is accordingly allowed."

2.1 What was prayed in the writ petition was to set aside order dated 3.8.2015 passed by the Collector, Gandhinagar whereby the services of the petitioner came to be terminated.

3. The petitioner was appointed as Revenue Talati, Class-III on contractual basis and on fixed pay pursuant to the order dated 29.10.2010. On 16.12.2014 First Information Report came to be registered against the petitioner and another person - co- accused in respect of the commission of alleged offences punishable under the provisions of Prevention of Corruption Act, 1988. The said First Information Report was made basis for passing the order terminating the services of the petitioner citing certain conditions in the order of appointment.

3.1 The order whereby the services was terminated mentioned that the petitioner had committed serious misconduct for which the First Information Report was lodged. It was also observed

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that if the petitioner was to be continued, in service he would influence the witness. The order stated that since the appointment was on certain conditions, in view of the misconduct and indiscipline practice by the petitioner his services were terminated.

3.2 The decision of the Division Bench of this court in Chetan Jayantilal Rajgor (supra) confirmed the order passed by this court in the same matter whereby it was held that even in respect of the employees holding fixed pay and fixed time period post, if the termination of services is to be effected on the ground of misconduct and by passing stigmatic order, it could not be done without holding the full-fledged departmental inquiry after issuing charge-sheet and taking out necessary procedure.

3.3 Following pertinent observations by the Division Bench in Chetan Jayantilal Rajgor (supra) were noted by learned single Judge,

""8. The bone of contention of appellants - State authorities is that since the original petitioners are employed on a contract basis and fixed pay, the Department is not under an obligation to conduct a detailed full-scale 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

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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.""

7. What is evident from reading the contents of the decision is that if initiation of action is based on an unsatisfactory work, gross negligence or indiscipline, it tantamounts to being stigmatic and unless and until a full scale departmental inquiry is held, irrespective of whether the employee is a regular employee or a contractual employee, the result has to be the same. It has to be noted that before the Division Bench it was the stand of the State that an employee who is appointed on contractual basis need not be terminated after holding a full fledged inquiry. It was in the background of this objection of the government that the Division Bench held thus.

"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

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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.""

4. There is no gainsaying on bare reading of the order of termination passed against the petitioner - respondent herein that it was founded on allegation of misconduct and was stigmatic in nature. It ought to have been preceded with full fledged inquiry but the services were straightway terminated.

4.1 In view of the decision of Chetan Jayantilal Rajgor (supra) the termination could not have been sustained in law. Learned single Judge was eminently justified in setting aside the same. The directions of learned single Judge takes care of the factum that the appointment of the petitioner was fixed term appointment for five years. The reinstatement is granted for the rest of the period to make up the total period.

5. No interference is called for in the impugned judgment and order of learned single Judge. The meritless Letters Patent Appeal is dismissed.

In view of dismissal of the Appeal, the Civil Application will not survive. It is accordingly disposed of.

(N.V.ANJARIA, J)

(SANDEEP N. BHATT,J) Manshi