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2013 DIGILAW 170 (GUJ)

Mitul Vinodray Savani v. Chief Engineer and CVO

2013-03-20

JAYANT M.PATEL, MOHINDER PAL

body2013
JUDGMENT : JAYANT M. PATEL, J. 1. The present appeal is directed against the order dated 7.9.2012 passed by the learned Single Judge of this Court in Special Civil Application No. 11955 of 2012; whereby, learned Single Judge for the reasons recorded in the order, has dismissed the petition. Heard Mr. Devnani, learned counsel appearing for the appellant as well as Mr. Dave for the respondent for final disposal of the Letters Patent Appeal. 2. It appears that following aspects are undisputed. (i) The original petitioner-appellant herein was appointed for a period of 6 months vide order dated 11.11.2008 on contractual appointment for the post of Junior Engineer. (ii) Vide order dated 6.2.2009, the original petitioner was appointed as Vidyut Sahayak (Junior Engineer) purely for a fixed term of 2 years with effect from joining the duty. (iii) As per condition No. 5, it was provided as under: “5. On completion of 2 years, your performance shall be assessed for consideration to the post of Jr. Engineer. In case you are not found fit for regular appointment, this engagement shall come to an end. On 25th March, 2011, the original petitioner has been relieved from service. Upon the expiry of period of 2 years, the original petitioner has not challenged the order dated 25.3.2011, before any formation.” 3. The aforesaid shows that relationship of employer and employee came to an end from 25.3.2011 since the contractual period had come to an end. 4. It appears that after the aforesaid expiry of the relationship of employer-employee, charge-sheet was issued on 9th May, 2011 and thereafter, the inquiry was initiated and ultimately, the order of termination/dismissal has been passed on 30th April, 2012. It is that order of 30th April, 2012 for termination/dismissal which is under challenge in the main special civil application. It appears that before the learned Single Judge, respondent did not appear since petition was summarily dismissed but pursuant to notice issued by this Court in the present Letters Patent Appeal, respondents have appeared and at paragraph No. 5, it has been stated as under: 5. The main contention of the appellant is that without following the principles of natural justice, the appellant came to be relieved from service with effect from 25.3.2011. The main contention of the appellant is that without following the principles of natural justice, the appellant came to be relieved from service with effect from 25.3.2011. It is submitted that even as per the case of the appellant, the appellant was appointed on a fixed term of two years on the post of Vidyut Sahayak (Junior Engineer). It is submitted that as per the terms and conditions contained in the order of the appellant, he was liable to be removed on completion of two years without showing any reason. It is submitted that it is also an admitted position on record that the appellant came to be relieved from service after his contractual period of two years came to an end on 25.3.2011. It is submitted that the appellant has accepted his appointment order on the post of Vidyut Sahayak (Junior Engineer), which specifically contains that on completion of two years, appellant's performance shall be assessed for consideration to the post of Junior Engineer. In case the appellant finds unfit for appointment, then this engagement shall come to an end. It is also further provided in the appointment order itself that appointment order as Vidyut Sahayak (Junior Engineer) does not give any right to the appellant for being appointed on the regular post of Junior Engineer. It is also provided that during the tenure of appointment the appellant shall be liable to be terminated with a notice of one month from either side. Thus, it is very clear that appellant's appointment was purely contractual. In terms of the appointment order when appellant's appointment came to an end, he was relieved from his duty without attaching any stigma. The order dated 25.3.2011 is very clear. 6. Further at paragraph No. 7, it has been stated as under: “7. Even if one ignores the order dated 30.4.2012, the fact remains that the appellant has been relieved by order dated 25.3.2011 and the said order has attained finality.” 7. The aforesaid makes it abundantly clear that the relationship of employer and employee has come to an end on 25.3.2011. Once the relationship of employer and employee had come to an end and the charge-sheet, if any, was not issued prior thereto, there was no authority or jurisdiction with the respondent-Electricity Company to initiate the disciplinary proceedings on the premise that the appellant was in service. Once the relationship of employer and employee had come to an end and the charge-sheet, if any, was not issued prior thereto, there was no authority or jurisdiction with the respondent-Electricity Company to initiate the disciplinary proceedings on the premise that the appellant was in service. We are inclined to take the aforesaid view, in view of the peculiar circumstance that the original petitioner, appellant herein, has not challenged the legality and validity of relieving order dated 25.3.2011 once the relationship of employer and employee had come to an end. 8. If the relationship of employee and employer had come to an end and proceedings for inquiry by way of charge-sheet was not initiated prior to the expiry of the relationship of employer and employee on 25th March, 2011 and when even employee had no grievance against the expiry of the relationship of employer and employee on 25.3.2011, it can be said that the initiation of the disciplinary proceedings after 2 months therefrom i.e. in May, 2011 and further proceedings thereafter, were without any authority of law. Consequently, the disciplinary proceedings including final order dated 30th April, 2012 deserves to be quashed and set aside with the clarification that as per the policy, the appellant has no grievance against the order dated 25.3.2011 for putting an end to the relationship of employer and employee. 9. It appears that aforesaid was the subject matter but the same is not accordingly examined by the learned Single Judge. Hence, the order of the learned Single Judge cannot be sustained. In view of the aforesaid observations and discussions, the impugned order dated 30th April, 2012 Annexure-A in the main Special Civil Application is quashed and set aside with the clarification that the petitioner has also no grievance against the relieving order dated 25.3.2011, whereby, relationship of employer and employee have come to an end. So consequently, stigmatic order for termination/dismissal of the petitioner vide order dated 30th April, 2012 shall remain set aside. The order of the learned Single Judge shall stand set aside. The appeal is allowed to the aforesaid extent. No order as to costs.