Gujarat High Court
Dhaval Ishvarlal Prajapati vs State Of Gujarat on 5 February, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.14122 of 2023
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
YES
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DHAVAL ISHVARLAL PRAJAPATI
Versus
STATE OF GUJARAT & ORS.
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Appearance :
MR SHALIN MEHTA, SENIOR COUNSEL ASSISTED BY MR NINAD P SHAH for
the Petitioner.
MS TANUSHREE SHRIMAL, AGP for the Respondent Nos.1,2
NOTICE SERVED for the Respondent No.3.
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 05/02/2025
ORAL JUDGMENT
1. With the consent of parties, the matter is taken up for
final disposal today itself. Hence, Rule. Learned Assistant
Government Pleader waives service of rule on behalf of
respondents.
2. By way of this petition, the petitioner has challenged
the order of termination dated 11.7.2023 passed by respondent
No.3 and has prayed for a direction to the respondents to reinstate
the petitioner to the post of Junior Inspector Legal Metrology, Class
III with all consequential benefits, as according to the petitioner
the order of termination is stigmatic.
3. The facts stated by learned Senior Counsel Mr. Shalin
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Mehta assisted by learned advocate Mr. Ninad P. Shah are as
under :-
3.1 That the petitioner was appointed on 13.2.2019 on the
post of Junior Inspector, Legal Metrology, Class-III on a fixed pay of
Rs.31,340/- for a period of five years. The petitioner joined the
services on 22.2.2019 and thereafter, FIR was registered against
the petitioner on 2.8.2022 under Sections 7, 13 (1) and 13 (2) of the
Prevention of Corruption Act, 1988. Pursuant to the same, the
petitioner was arrested and was granted bail as well. In view of
registration of FIR, show-cause notice was issued 3.4.2023 which
was replied by the petitioner on 20.4.2023. Thereafter, the
petitioner was informed by letter dated 9.5.2023 that his reply was
not considered and he was directed to tender written explanation.
Accordingly, the petitioner tendered his reply on 15.5.2023.
Thereafter, termination order dated 11.7.2023 was passed whereby
elaborately stating details about registration of the FIR, the
petitioner's services were terminated. The said order is passed on
basis of a case being registered with Ahmedabad City, ACB Police
Station, Ahmedabad being C.R. No.10 of 2022 for offences
punishable under Sections 7, 13(1) and 13(2) of Prevention of
Corruption Act by which it has been alleged that the petitioner was
caught in act of taking Rs.600 as a bribe and that the said conduct
of the petitioner is abuse of his post and such conduct being a
serious crime, the services of the petitioner was brought to an end.
Hence the present petition.
4. Mr. Shalin Mehta, learned Senior Counsel assisted by
learned advocate Mr. Shah appearing for the petitioner relied upon
the latest decision of this Court dated 04-10.12.2024 in case of
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Rakeshkumar Bhursingbhai Katara V/s. State of Gujarat in
Special Civil Application No. 22588 of 2022 and allied
matters and submitted that while allowing the petitions of those
petitioners, this Court has elaborately considered the decision of
this Court right from the decision in the case of State of Guajrat
V/s. Chetan Jayantilal Rajgor dated 24.07.2020 passed in Letters
Patent Appeal No. 1596 of 2019 and other decisions including the
latest decision of the Hon'ble Supreme Court in case of Swati
Priyadarshini V/s. State of Madhya Pradesh and others reported in
2024 SCC Online SC 2139 and therefore, present case is squarely
covered by the above decision and therefore, the petitioner's
termination order is bad in law and the same is deserves to be
quashed and set aside and the petitioner is required to be
reinstated on his original post.
5. Ms. Tanushree Shrimal, learned AGP appearing for the
respondent - State has placed on record affidavit-in-reply on behalf
of respondent No.2. The same is taken on record. On the basis of
the said affidavit-in-reply, he vehemently opposed the petition and
submitted that the petitioner was found to have indulged into
misconduct which would dis-entitle him from serving any further.
She submitted that in view of registration of FIR against the
present petitioner for an offence under the Prevention of
Corruption Act, the present petitioner's services are rightly
terminated. Learned AGP also submitted that there are Special
Leave Petition pending before the Hon'ble Supreme Court whereby
the Hon'ble Supreme Court has vide interim order dated
17.09.2024 passed in case of State of Gujarat V/s. Hiralben
Navinchandra Dholakiya in Special Leave Petition Civil
(Diary) No.37835 of 2024 has stayed the impugned order of this
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Court. Similarly, the Hon'ble Supreme Court has vide interim order
dated 14.12.2023 passed in the case of The State of Gujarat
V/s. Ashishbhai Chandrakantbhai Solanki in Special Leave
Petition (Civil) No. 23698 of 2022 has stayed the impugned
order of this Court whereby the order of stigmatic termination was
quashed by this Court and she therefore, prayed for dismissal of
this petition.
5.1 She further submitted that the authority has taken into
consideration the Government Resolution dated 16.02.2006 r/w
Government Resolution dated 20.10.2015 and Government
Resolution dated 28.03.2016 and by virtue of powers flowing from
the provisions of above Government Resolutions, the order of
termination was passed and therefore, the same is absolutely just,
legal and proper.
6. In rejoinder, learned Senior Counsel Mr. Shalin Mehta
assisted by learned advocate Mr. Shah submitted that the
submission in respect of pendency of Special Leave Petition before
the Hon'ble Supreme Court has already been considered by this
Court in its judgment in case of Rakeshkumar Bhursingbhai
Katara (supra) and as far as the submission about the powers to
terminate the services of the petitioner flowing from Government
Resolution dated 16.02.2006 r/w Government Resolution dated
20.10.2015 and Government Resolution dated 28.03.2016 are
concerned, the same would be absolutely insignificant in light of
catena of decisions by the Hon'ble Supreme Court holding that
once the termination order is found to be stigmatic then in that
case the termination order must go and therefore, the petition is
required to be allowed.
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7. I have heard the learned advocates for the parties and
perused the record. I have also considered the impugned order of
termination whereby the petitioner's services are terminated. On
perusal of above order, I found that there is a reference about the
FIR registered against the present petitioner under the Prevention
of Corruption Act and as the entire order is based on the above
premises on registration of FIR against the present petitioner,
prima facie, the impugned order can be said to be a stigmatic
order.
8. This Court had on occasion to consider the similar set
of facts in respect of stigmatic termination and while dealing with
this aspect, this Court by considering series of decisions on the
subject and more particularly, in the case of Rakeshkumar
Bhursingbhai Katara (supra) by taking into consideration the
recent decision of the Hon'ble Supreme Court in case of Swati
Priyadarshni (Supra) observed in paragraphs Nos.14 to 18 as
under :-
"14. Further, very recently, the Hon'ble
Supreme Court in the case of Swati Priyadarshini
v. State of Madhya Pradesh and others, 2024
SCC Online SC 2139 (Supra) has while allowing
the appeal preferred by the appellant, made the
following observations in paragraphs 29 to 36 as
under :-
ANALYSIS, REASONING AND CONCLUSION :
29. Having bestowed our anxious consideration to
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the lis, we find that the interference of the Division
Bench with the judgment dated 20.06.2017 of the
learned Single Judge, has to be interdicted at our
hands.
30. A bird's eye views reveals thus. The appellant
topped the revised Merit List, leading to her
appointment as an APC. While serving as such,
complaint(s) against her, in brief, were that she was
not performing her duties, primarily on two counts -
(i) not punctual in attending to her duties, and; (ii)
not correctly reported with regard to the events in
the hostel. As against these, the appellant's response,
via her replies to the SCNs, is that she, inter alia,
frankly admits to being late on occasion, but to
compensate for her late-coming, she used to sit till
late evening in the office for completion of work. On
this count, the Respondents cannot be faulted. It is
no justification for the appellant to contend that she
was late, but worked late/overtime such that the
work did not suffer. However, as borne out from the
record, with regard to the hostel, charge was given
to her for only 5/6 days. As such, in our view, it
cannot be said that within such a short period, the
appellant, without fully understanding the attendant
issues, could have straightaway given any
opinion/report on the hostel. Be that as it may, this
case turns on our findings infra.
31. Clause 4 of the RGPSM's General Service
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Conditions under the heading
"Resignation/Termination" provides as below :-
"Persons working on contract can be terminated
with one month notice if found inefficient. In
case of persons found indulged in undesirable
activities amounting to degradation of dignity of
Mission, Mission Director shall reserve right to
terminate him/her with immediate effect."
(emphasis supplied)
32. Perusal of Clause 4 makes it clear that
ordinarily, for inefficiency, one month's notice is
sufficient. The Clause also makes it clear that if
someone is found to have indulged in "undesirable
activities", the Mission Director was competent to
terminate such person's services "with immediate
effect". We are afraid that the Respondents have
placed themselves in a Catch-224 situation. If the
order dated 30.03.2013 falls within the former part of
Clause 4, as contended by the respondent, on the
premise that it is a case of termination simpliciter
and non-stigmatic, then one month's notice was
required to be issued to the appellant, which
admittedly was not done in the instant matter.
Arguendo, were the order dated 30.03.2013 to be
seen as falling under the latter part of Clause 4, it
would be stigmatic, as made clear by the use of the
words "indulged in undesirable activities amounting
to degradation of dignity of Mission".
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33. In either of the above-noted eventualities, the
Impugned Judgment would have to necessarily be set
aside. Nevertheless, let us examine the reasoning of
the Division Bench, which opined that the order is
non-stigmatic and simpliciter non-renewal of
contract. The order dated 30.03.2013 was, quite
obviously, the culmination of the process set into
motion by the two SCNs, which has been overlooked
by the Division Bench. The mere non-mention of the
background situation or the SCNs in the order dated
30.03.2013 cannot, by itself, be determinative of the
nature of the order. As held by this Court in Samsher
Singh v State of Punjab, (1974) 2 SCC 8315 and
Anoop Jaiswal v Government of India, (1984) 2 SCC6,
the form of an order is not its final determinant and
the Court can find out the real reason and true
character behind terminating/removing an employee.
Moreover, the Impugned Judgment also does not deal
with Clause 4. Interestingly, this Clause also escaped
the attention of or/and was not brought to the notice
of the learned Single Judge either.
34. It is profitable to refer to what five learned
Judges of this Court laid down in Parshotam Lal
Dhingra v Union of India, 1957 SCC OnLine SC 5:
"28. The position may, therefore, be summed up as
follows : Any and every termination of service is
not a dismissal, removal or reduction in rank. A
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termination of service brought about by the
exercise of a contractual right is not per se
dismissal or removal, as has been held by this
Court in Satish Chander Anand v. Union of India
[(1953) 1 SCC 420: (1953) SCR 655]. Likewise the
termination of service by compulsory retirement in
terms of a specific rule regulating the conditions of
service is not tantamount to the infliction of a
punishment and does not attract Article 311(2), as
has also been held by this Court in Shyam Lal v.
State of Uttar Pradesh [(1955) 1 SCR 26]. In either of
the two abovementioned cases the termination of the
service did not carry with it the penal consequences
of loss of pay, or allowances under Rule 52 of the
Fundamental Rules. It is true that the misconduct,
negligence, inefficiency or other disqualification may
be the motive or the inducing factor which influences
the Government to take action under the terms of the
contract of employment or the specific service rule,
nevertheless, if a right exists, under the contract or
the rules, to terminate the service the motive
operating on the mind of the Government is, as
Chagla, C.J., has said in Shrinivas Ganesh v. Union of
India [LR 58 Bom 673 : AIR (1956) Bom 455] wholly
irrelevant. In short, if the termination of service is
founded on the right flowing from contract or
the service rules then, prima facie, the
termination is not a punishment and carries
with it no evil consequences and so Article 311
is not attracted. But even if the Government
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has, by contract or under the rules, the right to
terminate the employment without going
through the procedure prescribed for inflicting
the punishment of dismissal or removal or
reduction in rank, the Government may,
nevertheless, choose to punish the servant and
if the termination of service is sought to be
founded on misconduct, negligence, inefficiency
or other disqualification, then it is a punishment
and the requirements of Article 311 must be
complied with. As already stated if the servant has
got a right to continue in the post, then, unless the
contract of employment or the rules provide to
the contrary, his services cannot be terminated
otherwise than for misconduct, negligence,
inefficiency or other good and sufficient cause.
A termination of the service of such a servant on
such grounds must be a punishment and,
therefore, a dismissal or removal within Article
311, for it operates as a forefeiture of his right
and he is visited with the evil consequences of
loss of pay and allowances. It puts an indelible
stigma on the officer affecting his future career.
A reduction in rank likewise may be by way of
punishment or it may be an innocuous thing. If the
government servant has a right to a particular rank,
then the very reduction from that rank will operate
as a penalty, for he will then lose the emoluments
and privileges of that rank. If, however, he has no
right to the particular rank, his reduction from an
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officiating higher rank to his substantive lower rank
will not ordinarily be a punishment. But the mere fact
that the servant has no title to the post or the rank
and the Government has, by contract, express or
implied, or under the rules, the right to reduce him to
a lower post does not mean that an order of
reduction of a servant to a lower post or rank cannot
in any circumstances be a punishment. The real test
for determining whether the reduction in such
cases is or is not by way of punishment is to find
out if the order for the reduction also visits the
servant with any penal consequences. Thus if
the order entails or provides for the forfeiture of
his pay or allowances or the loss of his seniority
in his substantive rank or the stoppage or
postponement of his future chances of
promotion, then that circumstance may indicate
that although in form the Government had
purported to exercise its right to terminate the
employment or to reduce the servant to a lower
rank under the terms of the contract of
employment or under the rules, in truth and
reality the Government has terminated the
employment as and by way of penalty. The use of
the expression "terminate" or "discharge" is not
conclusive. In spite of the use of such innocuous
expressions, the Court has to apply the two tests
mentioned above, namely, (1) whether the
servant had a right to the post or the rank, or
(2) whether he has been visited with evil
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consequences of the kind hereinbefore referred
to? If the case satisfies either of the two tests
then it must be held that the servant has been
punished and the termination of his service
must be taken as a dismissal or removal from
service or the reversion to his substantive rank
must be regarded as a reduction in rank and if
the requirements of the rules and Article 311,
which give protection to government servant
have not been complied with, the termination of
the service or the reduction in rank must be
held to be wrongful and in violation of the
constitutional right of the servant."
(emphasis supplied)
35. We would only be adding to verbosity by
multiplying authorities. In view of the above dictum,
it is clear that the Respondents did not comply with
Clause 4 - either the first part or the second part
thereof. The order dated 30.03.2013 does visit the
appellant with evil consequences and would create
hurdles for her re further employment.
36. In view of the discussions made herein above,
the Impugned Judgment is quashed and set aside.
The judgment of the learned Single Judge dated
20.06.2017 stands revived, however with a
modification to the extent that the appellant shall be
entitled to all consequential benefits including
notional continuation in service at par with other
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similarly situated employees, but with the back
wages restricted to 50%. Further, in view of the long
passage of time, we deny liberty to the respondents
to proceed afresh against the appellant as was
granted by the learned Single Judge. However, this
will not preclude the respondents from taking action
against the appellant in accordance with law in
futuro apropos her official duties on the post in
question, if the situation so arises. The exercise be
completed within three months from the date of
receipt of this judgment.
15. Considering the observations made in the
above two decisions, the order of termination was
held to be stigmatic, in respect of allegations levelled
against the concerned employee in each of the
petitions, there was no full-fledged inquiry held and
yet by assigning reasons which would cast stigma
upon the petitioners, the services of the petitioners
was terminated. In the instant case also, some
irregularities are alleged in MGNREGA Scheme
against each of the petitioners and without holding
departmental inquiry, on the aforesaid ground, the
petitioners' services were terminated. Therefore, I
have no hesitation in holding that the termination of
services of each of the petitioners are stigmatic in
nature and the same is passed without holding any
full-fledged inquiry and, therefore, the impugned
orders terminating the services of the petitioners are
quashed and set aside and the petitions stand
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allowed. Rule is made absolute to the aforesaid
extent. No order as to costs.
16. The respondents are directed to reinstate the
petitioners on their original posts which they were
holding prior to their termination upto the term of
their appointment, as if the order of termination was
never passed. The reinstatement of the petitioners
as directed above shall be for the remaining period of
their contractual employment upto making of total
original period fixed for their employment as per
their order of appointment. Further, it will be open
for the respondents, if they so deem fit, to initiate a
full-fledged inquiry against each of the petitioners by
complying with the principles of natural justice and
as a result of quashment of the termination orders in
each of the petitions, if they are entitled to any
monetary benefits for the interregnum period, the
same shall be considered notionally for taking into
consideration any benefits which may flow on
account of service conditions of the petitioners.
17. As far as backwages is concerned, learned
AGP Ms. Nirali Sarda as well as learned advocate Mr.
Nisarg Jain appearing for the respective respondents
have opposed the said prayer by stating that the
petitioners have not worked actually in past since
their termination. In support of her contention, she
relied upon the decision of the Division Bench of this
Court in the case of Bhaveshkumar Rameshkumar
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Kanara v. State fo Gujarat decided on
17.10.2023 in Letters Patent Appeal No.659 of
2023 wherein while denying the monetary benefits
for the interregnum to the appellant, the Division
Bench has observed in paragraph 5.1 to 5.4 as
under :-
"5.1 The decision of this Court in Kaminiben
Thakorbhai Patel Vs. State of Gujarat, which
was Letters Patent Appeal No.761 of 2021,
decided on 24.12.2021, arose in the similar and
nearly identical set of facts.
5.1.1 While not granting the backwages, the court
observed thus in para 8,
"As far as the aspect of grant of back wages to the
appellants is concerned, while on behalf of the
appellants, the relief of back wages was pressed by
submitting that the back wages have to follow
automatically when the reinstatement is directed
upon holding the termination illegal, certain
conspicuous aspects stare at the face of the
controversy in this case fir considering the issue of
back wages. Not only that long time has elapsed
since the appellants are ordered to be reinstated by
this order and the principle of no work no pay would
apply. What becomes decisive in the matter on this
score is the factum that the appellants were
appointed for five years initially and during such five
years their services came to be terminated by
passing the impugned order. They are reinstated as
per the above direction for the remainder period
providing further that all other conditions in respect
of nature of their appointment would operate. In
such circumstances, the question of grant of back
wages does not arise. The appellants will not be
entitled to any back wages."
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5.2 The petitioner herein was a fixed term employee,
he has been reinstated for the remainder term of five
years subject to further orders which may be passed
by the authorities for extension, if any, in the term of
employment. When the initial tenure of the
petitioner was fixed, that very aspect would render
grant of backwages not permissible.
5.3 It would be incongruent to grant monetary
benefits and the backwages while reinstating a fixed
term employee, inasmuch as granting such benefit
would amount to giving salary beyond total term of
five years for which the appointment is made."
18. Considering the above observations made by
the Division Bench of this Court, it is held that none
of the petitioners are entitled to any backwages as in
view of the fact that the petitioners are directed to
be reinstated and State is also directed to ensure
that the petitioners are allowed to perform their
duties for the remaining period of their contractual
appointment."
9. In view of above, as the present order of termination is
also found to be stigmatic order by this Court, the facts of the
present petition is also squarely covered by the decision of this
Court in case of Rakeshkumar Bhursingbhai Katara (supra)
and accordingly, the impugned order of termination dated
11.07.2023 is required to be quashed and set aside and the same is
accordingly, quashed and set aside. Resultantly, the petitioner is
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directed to be reinstated. However, the reinstatement would be
only till remaining period of his appointment on his original post
which the petitioner held prior to his termination, as if the order of
termination is never passed. Remaining period of his contractual
employment upto making of total original period fixed for his
employment as per his original order of appointment.
10. Further if the respondents, if they so deem fit, it will be
open for them to initiate a full-fledged inquiry against the petitioner
by complying with the principles of natural justice and as a result
of quashing the order of termination in respect of present
petitioner, if he is entitled to any monetary benefits, the same shall
be considered notionally by the State Government. However, there
shall not be any entitlement of back-wages to the petitioner.
11. With the aforesaid observation and direction, the
petition is allowed. Rule is made absolute to the aforesaid extent.
No order as to costs.
12. The petitioner shall be reinstated in remaining period
and thereafter, it is left to the discretion of the authority whether to
continue the petitioner upon completion of contractual period by
placing the petitioner in regular pay scale or not to extend his
services as the same depends upon the satisfactory service
rendered by the petitioner as per the appointment order itself.
Direct service is permitted.
(NIRZAR S. DESAI,J)
SAVARIYA
