Gujarat High Court
Chanchalben Kalidas Prajapati vs State Of Gujarat on 26 June, 2024
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C/SA/41/2001 JUDGMENT DATED: 26/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 41 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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CHANCHALBEN KALIDAS PRAJAPATI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MRS KRISHNA G RAWAL(1315) for the Appellant(s) No. 1
MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/06/2024
ORAL JUDGMENT
1. Present second appeal filed u/s 100 of the CPC is directed
against the judgment and decree dated 31.3.2001 passed by the
learned 2nd Joint District Judge, Panchmahal at Godhra in RCA
No.59 of 1996, whereby, the learned appellate Court dismissed
the appeal and confirmed the judgment and decree dated
6.11.1996 passed by the learned 6th Joint Civil Judge (S.D.),
Panchmahal at Godhra in Regular Civil Suit No.294 of 1991, by
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which, suit of the appellant was dismissed.
2. Brief facts of the case are that the appellant was appointed
as Matron in Sub Jail, Godhra by the respondent No.2 by
following regular process of law on 7.9.1978. She served as
Matron in the Sub Jail, Godhra upto 4.5.1991. Thereafter, she
was terminated without following any due process as
contemplated under Article 311 of the Constitution of India, as
she had quarelled with some employee. Immediately, the
plaintiff preferred Regular Civil Suit No.294 of 1991 before the
learned trial Court at Godhra challenging her termination. Along
with the suit, an application Exh.5 for interim relief was also
preferred, but the stay application was rejected.
2.1 Being aggrieved by the aforesaid order, the plaintiff
preferred Misc. Civil Appeal No.102 of 1991 before the learned
appellate Court, Panchmahal at Godhra. The learned appellate
Court vide order dated 31.8.1991 stayed order rejecting
application Exh.5 preferred by the plaintiff so also termination
order. After that order, the plaintiff was reinstated in service
w.e.f. 30.8.1992. Thereafter, Regular Civil Suit No.294 of 1991
filed by the plaintiff came to be dismissed on 6.11.1996.
2.2 Being aggrieved by the aforesaid order, the plaintiff
preferred First Appeal No.59 of 1996 on 29.4.1997 before the
learned appellate Court, Godhra. Along with the first appeal, an
application Exh.5 for interim relief was also preferred. The
learned appellate Court, Godhra vide order dated 29.4.1997
stayed the implementation and execution of the judgment and
decree delivered in Regular Civil Suit No.294 of 1991 and
continued the interim order and thereafter, the services of the
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appellant has been continued. The first appeal has been
dismissed on 3.3.2001. Therefore, this second appeal is
preferred.
3. On 13.8.2001, the appeal was admitted by framing
following substantial question of law:-
"Whether the courts below have erred in law in ignoring the
settled position of law that even a temporary employee is entitled
to the protection of Article 311 of the Constitution of India and
that for imposing major penalty of termination from service
procedure of holding a regular departmental inquiry is required
to be followed?
4. For convenience, the parties to the proceedings are referred
to as per their original status before the learned trial Court.
5. Heard learned advocate Ms. Krishna Rawal for the
appellant and learned AGP Ms. Shruti Dhruve for the
respondents.
6. Learned advocate Ms. Krishna Rawal for the appellant
would submit that in the second appeal, this Hon'ble Court has
passed interim order in application for stay on 13.8.2001 and
stayed the implement and operation of judgment and decree
dated 3.3.2001 passed by the learned appellate Court and thus,
throughout all this time period of the proceedings, the plaintiff
was in service and thereafter, she was retired in April, 2002 on
attaining the age of superannuation. In background of the above
aspect, learned advocate Ms. Rawal would submit that limited
question remains in this matter is that whether without
conducting departmental inquiry, even an ad hoc employee can
be terminated. She would further submit that the question has
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been squarely answered by the Hon'ble Apex Court in case of
Anopsinh Jatubha Vs. V.K. Gupta, Dist. Superintendent of
Police, Jamnagar and others reported in 1986 GLH 136. She
has also relied upon by the judgment of the Division Bench of
this Court in case of State of Gujarat Vs. Chetan Jayantilal
Rajgor rendered in Letters Patent Appeal No.1596 of 2019 and
allied matters and submitted that if a Government employee
even is ad hoc, his termination could take place only after
following due process of law as set up under Article 311(2) of the
Constitution of India. She would further submit that in the
present case, the appellant being unsuccessful plaintiff had been
removed from service without following due process of law. She
would further submit that the learned Courts below have failed
to consider the provision of law in its true perspective and hence,
error has been committed by the learned Courts below in
rejecting the suit and confirming the same in appeal. She thus,
submits to quash and set aside the impugned judgment and
decree and to grant relief, prayed in the suit.
6.1 Upon above submission, learned advocate Ms. Krishna
Rawal requests to allow this appeal.
7. On the other hand, learned AGP would submit that the
plaintiff was an ad hoc employee and was paid salary as per her
work. She would further submit that the question of holding
departmental inquiry would not come when ad hoc employee has
been terminated and therefore, she submits to dismiss present
appeal.
8. At the outset, if we go through the relief claimed in the
Regular Civil Suit No.294 of 1991, the plaintiff claimed two
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reliefs; firstly she claimed relief that the order dated 4.5.1991
passed by the defendant No.2 - the Superintendent, Sub Jail,
Godhra in Order No.Confidential 12/91 be declared as illegal,
void, against the principles of natural justice and arbitrary and
she may not be terminated from service; secondly, she claimed
for the salary of four months commencing from 1.5.1991 to
31.8.1991 at the monthly rate of Rs.1268/-, which comes to
Rs.5072/-. However, the learned Courts below came to the
conclusion that since the plaintiff was ad hoc employee, the
protection as conferred under Article 311 of the Constitution of
India is not available to the plaintiff and therefore, the suit as
well as the appeal were rejected.
9. The second relief claimed by the plaintiff has become
infructuous by afflux of time, as she has attained age of
superannuation; she has worked throughout the time legal
proceedings took place and she has also paid for what she has
worked. There is no quarrel on this aspect.
10. As far as order dated 4.5.1991 terminating the plaintiff by
the defendant No.2 is concerned, it is undisputed that without
conducting departmental inquiry, the plaintiff was slap with a
drastic order of termination and major punishment was imposed
upon the plaintiff.
11. Whether an ad hoc Government employee can be
terminated without holding departmental proceedings and as
such, is accounted to stigma has been thoroughly examined by
the Division Bench of this Court in case of Chetan Rajgor (supra)
in background of factum that employee being a contractual
employee and has held in favour of the employee. The relevant
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para 11 reads as under:-
"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. Learned AGP Ms. Shruti Dhruve could not dispute that the
plaintiff was consumed as ad hoc employee after following
regular process of recruitment.
13. Another judgment which could be pressed into service by
the learned advocate for the appeal is in case of Anopsinh
Jatubha (supra). The relevant para reads as under:-
"It is clear that the respondents terminated the services of the
appellants not because their work is not satisfactory, but because
of the fact they have indulged in unfair practice of copying. This is
very clear from the affidavit-in-reply filed by one Gupta on behalf
of the respondents. Further, the authority concerned, while
terminating the services, had the report of the Principal, P.T.S.,
Baroda which states that the appellants were not permitted to
write the examination for their act of copying. When especially
these facts have been taken into consideration and when, as a
matter of fact, the affidavit-in-reply clearly states that the
appellants' services were merely terminated so that they may hot
be debarred from service in any other Government Department, it
amply establishes the foundation for the termination is the
malpractice adopted by the appellants herein. If that be so, the
orders . of termination, without affording any opportunity to the
appellants must fair. The simple order of termination as if the
petitioners are only probationers is merely a camouflage for an
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order of dismissal for misconduct and as such the same cannot
be upheld in as much as the appellants never had an opportunity
to meet such allegations levelled against them. Art. 311 (2) has
been clearly violated in this case."
14. In view of the fact that the plaintiff is retired on attaining
the age of superannuation, the substantial question of law
referred herein above becomes the academic question.
15. For the reasons stated herein above, this Court is of the
considered opinion that the issue framed at the time of
admission of the appeal deserves to be answered in affirmative.
The concurrent judgment and decree passed by the learned
Courts below are hereby quashed and set aside. It is hereby
declared that the order dated 4.5.1991 passed by the defendant
No.2 - the Superintendent, Sub Jail, Godhra in Order
No.Confidential 12/91 is illegal, arbitrary and against the
principle of natural justice. The suit of the plaintiff is allowed to
that extent. Decree to be drawn accordingly. No order as to
costs.
16. R & P to be sent back to the concerned Court immediately.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
