Gujarat High Court
Jayendrasinh Abhesangbhai Tank vs Surat Municipal Corporation on 9 October, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/1131/2025 ORDER DATED: 09/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO.1131 of 2025
In R/SPECIAL CIVIL APPLICATION/1719/2020
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JAYENDRASINH ABHESANGBHAI TANK
Versus
SURAT MUNICIPAL CORPORATION & ANR.
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Appearance:
MS MAMTA R VYAS(994) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 09/10/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal is directed against the order dated
21.07.2025 passed in the captioned writ petition wherein and
whereby the learned Single Judge has rejected the writ petition of
the appellant challenging his termination from service.
2. The facts as recorded by the learned Single Judge are not in
dispute. The appellant was appointed on 05.02.2015 as a Class-III,
Trainee Driver in the Fire and Emergency Services Department
under Surat Municipal Corporation and the training period was
fixed for three years. Since the appellant was remaining absent on
numerous occasions even after issuing show-cause notice and
memo, ultimately, by the termination order dated 19.10.2019 the
respondent - Corporation terminated his services. The same has
been assailed by the appellant by way of filing the captioned writ
petition, which has been rejected by the learned Single Judge,
hence the present appeal.
3. Learned advocate Ms.Mamta R. Vyas appearing for the
appellant has submitted that the learned Single Judge has fell in
error in rejecting the writ petition as the documentary evidence
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C/LPA/1131/2025 ORDER DATED: 09/10/2025
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produced by the appellant in the writ petition explaining his leave
has not been appropriately considered. She has pointed out that on
every occasion the appellant has filed applications seeking leave
and has submitted that though the leaves having been granted /
sanctioned, the respondents have terminated his service by the
impugned order dated 19.10.2019. It is submitted that the
impugned order also appears to be stigmatic and hence, the same
could not have been passed without holding a regular inquiry.
Thus, it is urged that the termination order as well as the order
passed by the learned Single Judge may be quashed and set aside.
4. The facts which are established on record are that the
appellant was appointed as a trainee Driver in the Fire and the
Emergency Services Department under Surat Municipal
Corporation on 05.02.2015. Thus, the department in which the
appellant was appointed was an emergency services department
and he was sent to training for a period of three years for
undertaking practical as well as theoretical training. The
appointment letter dated 05.02.2015 sets out various conditions. It
is further stipulated that the appellant who has been appointed as a
trainee Driver has to furnish an undertaking, confirming the
acceptance of the appointment letter and the conditions mentioned
along with the appointment order.
5. The first condition of the appointment order reveals that
appellant has to undergo three years of training comprising
practical as well as theoretical training. Condition no.3 further
directs that a trainee has to diligently obey the directions of his
superiors and all the work assigned to the trainee has to be done
with an absolute devotion.
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5.1 Condition no.11, provides that the minimum presence during
each year of the training period must be 200 days. In case if it is
found that the trainee has not undertaken the training bereft of any
devotion, his training would be immediately terminated forthwith,
except for the reason that such absenteeism has been considered to
be valid or has been approved duly due to the reason of child-birth
or illness.
5.2 Condition no. 12 mentions that in accordance with condition
nos. 9, 10 and 11, the training period for the respective year shall
have to be extended for the number of days, the trainee has
remained absent and if the training has not been brought to an
end.
5.3 Condition no.13, explains that upon completion of the training
period extended as provided above at condition no.12, if the trainee
is found to have not undergone the training satisfactorily or upon
finding the performance or conduct of the trainee to be not
satisfactory, the training period shall be extended, maximum for a
period of six months. Upon finding the performance or conduct to
be not satisfactory during this time period also, the training shall
be brought to an end and he/she shall not be entitled to the right of
service on temporary / regular basis.
5.4 Condition no. 15 provides that for prolonged absence in the
training period and unsatisfactory performance or indiscipline on
part of the trainee, the training shall be liable to be brought to an
end at any time, without issuing any show-cause notice or following
any due process of law, however, before taking such action, the
principles of natural justice will be followed and an opportunity will
be given to such trainee.
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6. In the present case, it is not in dispute that the appellant has
remained absent for almost 300 days during his training period.
The memo dated 26.09.2017 issued to the appellant, refers the
period of un-authorized absence for 300 days. It further refers that
before proceedings to leave, the appellant did not get his leave
sanctioned from the concerned authority. It also mentions that
when he went for leave for a period of 10 days, thereafter for more
than 100 days, he subsequently remained continuously absent on
the ground of illness related to spine. It is further mentioned that
appellant did not produce any valid certificate of the Surgeon or
the opinion of any medical hospital. It further reflects that on
numerous occasions the appellant has been issued oral instructions
as well as memos to remain present and complete his training
however, he did not care to do so. By observing the absence and
the conduct of the appellant, ultimately, the appellant was called
upon to give explanation which he tendered on 07.10.2017.
7. Again on 11.10.2017, another memo was issued which was
replied on 11.10.2017, however, the appellant did not remain
present. Further, show-cause notice was issued on 01.11.2017
pointing out his unauthorized absence to which he also replied on
02.11.2017. Ultimately, the respondent-Corporation was left with
no other option, but to terminate the services of the appellant
pending his training period vide termination order dated
19.10.2019.
8. At this stage we may refer to the landmark decision of the
Supreme Court in the case of Director Aryabhatta Research
Institute Of Observational Sciences (ARIES) & Anr. Vs. Devendra
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Joshi & Ors., AIR 2018 S.C. 1493, wherein at paragraphs No.11 to
13, the Court has held thus:
"11. We do not agree with the findings of the High Court that the Order dated
31st December, 2008 was passed only to punish Respondent No.1 for his
objection to the appointment of Respondent No.4 to the post of Engineer-C
(Civil). As the appointment of Respondent No.4 was not assailed by Respondent
No.1 in the Writ Petition, the High Court ought not to have adjudicated the issue
of validity of the appointment of Respondent No.4. The High Court committed an
error in ignoring the letters dated 24th July, 2008 and 18th August, 2008 written
by the Management to Respondent No.1 pertaining to his unsatisfactory work.
The said letters were issued prior to the representations made by Respondent
No.1 against the appointment of Respondent No.4. A perusal of the Memorandum
dated 23 rd December, 2008 would show that there is a prima facie finding
recorded in the preliminary inquiry against Respondent No.1 which cannot be
attributed to the representation made by Respondent No.1 against the
appointment of Respondent No.4. We are constrained to hold that there is no
basis for the finding of the High Court that the real reason for the Order dated 31
st December, 2008 was to ensure that the manner in which Respondent No.4 was
appointed to the post of Engineer-C (Civil) remained concealed. We are satisfied
that the Order dated 31 st December, 2008 does not suffer from any infirmity and
it is an Order of termination simpliciter. There is sufficient material on record to
indicate that Respondent No.1 was informed about his unsatisfactory
performance during the period of his probation.
12. A plain reading of the Order dated 31st December, 2008 would show that it is
an innocuous order terminating the services of Respondent No.1 at the end of the
probation period. As no allegations of misconduct are made in the Order, there is
no stigma. Even the High Court is of the opinion that there is no stigma. The fact
remains that there was a preliminary inquiry conducted by the Management in
which there was a prima facie finding recorded against the Respondent No.1 of
his involvement in an act of misconduct. The Appellants decided not to proceed
further and hold a detailed inquiry to prove the misconduct of Respondent No.1.
However, the service of Respondent No.1 was terminated at the end of the period
of probation which cannot be said punitive. Therefore, the Order dated 31 st
December, 2008 is an order of termination simpliciter. In view of the above it
cannot be said that misconduct was the foundation for the order of termination.
13. It will be useful to refer to the relevant portion of a judgment of this Court in
Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd.1, wherein it was
held as follows:
"33. It will be noticed from the above decisions that the termination of
the services of a temporary servant or one on probation, on the basis
of adverse entries or on the basis of an assessment that his work is not
satisfactory will not be punitive inasmuch as the above facts are
merely the motive and not the foundation. The reason why they are the
motive is that the assessment is not done with the object of finding out
any misconduct on the part of the officer, as stated by Shah, J. (as he
then was) in Ram Narayan Das case. It is done only with a view to
decide whether he is to be retained or continued in service. The
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position is not different even if a preliminary enquiry is held because
the purpose of a preliminary enquiry is to find out if there is prima
facie evidence or material to initiate a regular departmental enquiry. It
has been so decided in Champaklal case. The purpose of the
preliminary enquiry is not to find out misconduct on the part of the
officer and if a termination follows without giving an opportunity, it
will not be bad. Even in a case where a regular departmental enquiry
is started, a charge-memo issued, reply obtained, and an enquiry
officer is appointed -- if at that point of time, the enquiry is dropped
and a simple notice of termination is passed, the same will not be
punitive because the enquiry officer has not recorded evidence nor
given any findings on the charges. That is what is held in Sukh Raj
Bahadur case and in Benjamin case. In the latter case, the
departmental enquiry was stopped because the employer was not sure
of establishing the guilt of the employee. In all 1 (1999) 2 SCC 21 para
33 & 34- Followed in Ratnesh Kumar Choudhary v. Indira Gandhi
Institute of Medical Science, Patna, Bihar (2015) 15 SCC 151 these
cases, the allegations against the employee merely raised a cloud on
his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes
case the employer was entitled to say that he would not continue an
employee against whom allegations were made the truth of which the
employer was not interested to ascertain. In fact, the employer by
opting to pass a simple order of termination as permitted by the terms
of appointment or as permitted by the rules was conferring a benefit on
the employee by passing a simple order of termination so that the
employee would not suffer from any stigma which would attach to the
rest of his career if a dismissal or other punitive order was passed. The
above are all examples where the allegations whose truth has not been
found, and were merely the motive."
9. Thus, the Apex Court has held that the services of a
temporary servant or one on probation, on the basis of adverse
entries or on the basis of an assessment that his work is not
satisfactory will not be punitive inasmuch as the above facts are
merely the motive and not the foundation. We are of the opinion
that the respondent-Corporation has not committed any illegality in
terminating the training period of the appellant and also ending his
services, for habitual absence of going on leave, without sanction,
that too during his training period as a Driver in the Fire and
Emergency Services Department. The appellant having accepted
his appointment order with the attached conditions is bound by
them. In the present case, upon perusal of the contents of the
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impugned order, it is revealed that the service of the appellant has
been terminated on the ground of his unauthorized prolonged
absence and unsatisfactory completion of the training, and since,
we do not find it to be stigmatic, a departmental inquiry was not
necessitated.
10. With the foregoing reasons, the present Letters Patent
Appeal stands rejected.
(A. S. SUPEHIA, J)
(L. S. PIRZADA, J)
Radhika /6
