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Gujarat High Court · body

2019 DIGILAW 430 (GUJ)

Sailesh Punabhai Gajjar v. State Of Gujarat

2019-04-16

N.V.ANJARIA

body2019
JUDGMENT : 1. Heard learned senior advocate Mr.Shalin Mehta with learned advocate Mr.Samir Gohil for the petitioner and learned Assistant Government Pleader Mr.K.M. Antani for the respondents. 2. The services of the petitioner who was appointed as Superintendent, Class-I at the Community Health Center, Radhanpur, District Patan on ad hoc basis came to be terminated by order dated 09th May, 2017 on the ground that the petitioner had committed breach of provisions of the Pre-conception and Pre- Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. 3. From the letter of appointment dated 27th November, 2013, it could be seen that the petitioner was appointed on the above post in the pay-scale of Rs.15600-39100 and his appointment was for a period of one year or until the regularly selected candidate from Gujarat Public Service Commission was available. The other conditions in the appointment letter were that the candidate appointed under the order shall have to appear in the selection process which may be conducted by the Gujarat Public Service Commission (GPSC) and if he fails to appear in the process or remains absent in the interview, his services would be liable to be put an end. It was also a condition incorporated in the appointment letter that if the petitioner was found irregular or indisciplined or negligent, then in such case, services could be dispensed with without notice. 3.1 The posting order came to be issued to the petitioner and petitioner joined the services. It is not in dispute that as per the conditions of the appointment letter, petitioner has passed the GPSC examination, in which he was found qualified for the appointment to stand at merit No.12. 3.2 It appears that on 20th January, 2017 a criminal complaint was lodged against the petitioner under the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as ‘the Act’). As a result of filing of criminal complaint, respondent passed Resolution dated 09th May, 2017 proceeding to terminate the services of the petitioner on the ground of criminal case which is the impugned order. It was passed, as already noticed, on the footing that petitioner has committed breach of the provisions of the said Act. 4. As a result of filing of criminal complaint, respondent passed Resolution dated 09th May, 2017 proceeding to terminate the services of the petitioner on the ground of criminal case which is the impugned order. It was passed, as already noticed, on the footing that petitioner has committed breach of the provisions of the said Act. 4. Learned senior advocate for the petitioner assailed the impugned order to submit that the impugned order cast stigma on the petitioner as it rested on the ground that the petitioner had committed breach of the provisions of the Act. According to learned senior advocate, the order was punitive and could not have been passed without holding regular departmental inquiry and by complying with the principles of natural justice. 4.1 On the other hand, learned Assistant Government Pleader for the respondents relied on affidavit-in-reply filed on behalf of the respondents. It was submitted that the petitioner had no right to continue on the post and his appointment was subject to the conditions provided for in the order of appointment. According to his submission, the ground mentioned in the impugned order could not have been viewed as stigmatic. He submitted that criminal complaint was filed against the petitioner for the breach of provisions of the Act and on that basis, the suitability of the petitioner to retain him in service was assessed and consequentially the impugned order was passed. 4.2 In the affidavit-in-reply, it was contended that during the tenure of ad hoc service of the petitioner and on 20th January, 2017, criminal complaint was filed and the petitioner was arrested by the authorities in the State of Rajasthan on 20th January, 2017 and was released on 23rd January, 2017. It was stated that the Sonography machine of Community Health Center in Radhanpur was sealed by the Rajasthan police. It was sought to be asserted that termination was in the lines with the appointment letter as the petitioner’s tenure was ad hoc. It was submitted that the authorities had power to put an end to the ad hoc service of the petitioner without issuing notice if the performance of the petitioner was unsatisfactory. 5. As is noticed from the facts stated above that the petitioner’s appointment was for one year or until availability of regularly selected GPSC candidate. The petitioner was posted as Superintendent in the Community Health Center. 5. As is noticed from the facts stated above that the petitioner’s appointment was for one year or until availability of regularly selected GPSC candidate. The petitioner was posted as Superintendent in the Community Health Center. It is an uncontroverted averment in the petition that subsequently, in compliance of one of the conditions of the appointment order, petitioner cleared the GPSC examination having been placed at Serial No.12 on merits. Adverting to the impugned order, it clearly recites that there was an opinion from the Commissioner of Health Services, Gandhinagar, and on that basis, in view of the breach of provisions of the PC&PNDT Act, services of the petitioner were terminated. 5.1 While it was sought to be contended by learned Assistant Government Pleader that order on the face of it did not reflect any stigma on the petitioner, the contention could hardly be countenanced. The impugned order was noticed to be clearly based on the factum that the petitioner had committed breach of the provisions of the said Act which was the basis for passing the opinion to terminate the services. The authority could not have formed an opinion nor could have arrived at a conclusion about breach of the provisions of the Act committed by the petitioner. Such aspect was only in the realm of allegations made in the criminal complaint registered against the petitioner. The offences alleged under the Act were yet to be proved. In such circumstances, when the authorities reached to a conclusion about the breach of provisions of the Act by the petitioner and passed order on that foundation, order stood to be stigmatic. 5.2 The stand taken by the respondents in the affidavit-in-reply further manifested the foundation of the order. It was stated in the affidavit after reiterating the factum of filing of criminal complaint and the arrest of petitioner as well as sealing of Sonography machine at the Community Health Center to justify the termination of the petitioner, that “petitioner was arrested for breach of PC&PNDT act which is very serious matter. And the government can not support any action which adversely affect the sex ratio in the state”. And the government can not support any action which adversely affect the sex ratio in the state”. 5.3 In this regard, learned senior advocate for the petitioner pressed into service the observation of the Supreme Court in V.P. Ahuja v. State of Punjab and Haryana [ (2000) 3 SCC 239 ] wherein the Supreme Court dealt with the case of a probationer whose service was terminated. The High Court had termed the order not to be stigmatic, towards such a view of the High Court, the Supreme Court expressed a surprise and observed that the affidavit filed by the parties before the High Court as also before it indicated the background in which the order terminating services of the appellant before it, came to be passed. It was stated that such an order which on the face of it, was stigmatic and could not have been passed without holding a regular inquiry and giving an opportunity of hearing to the appellant. 5.4 The proposition that the averments in the affidavit-in-reply constitute a foundation to judge the nature of the order was sought to be refuted by the other side on the basis of decision of the Supreme Court in Union of India v. A.P. Bajpai [ (2003) 2 SCC 433 ]. In that case, the Supreme Court on the facts of that case, came to conclusion that the statements made by the appellant in the counteraffidavit were only the factors noted for assessing the suitability or otherwise of the employee to continue in service and that they did not become foundation to characterise the order of termination to be stigmatic. 5.5 Whether the statements and averments made in defence of the order in the affidavit-in-reply could be viewed as foundation of the order and whether on that basis the fundamental nature of the order could be judged or not, is not the question in this case. The facts of the present case stand clear. When even independently seen, the impugned order is made to rest on the ground that the petitioner had committed breach of the Act. On the basis of formation of such opinion and on such foundation just with reference to filing of complaint, the order terminating services of the petitioner came to be passed. When even independently seen, the impugned order is made to rest on the ground that the petitioner had committed breach of the Act. On the basis of formation of such opinion and on such foundation just with reference to filing of complaint, the order terminating services of the petitioner came to be passed. The order of the kind and nature would indeed treated as stigmatic in eye of law and punitive in its nature as is passed without conducting inquiry in compliance with the principles of natural justice. 5.6 The Supreme Court in Anoop Jaiswal v. Government of India [ (1984) 2 SCC 369 ] held that it is permissible for the Court to go behind the formal order of discharge so as to find out the real cause of action. The principle stated was that even the form of the order may be merely a camouflage for order of dismissal actually passed on the basis of misconduct. It was stated by the Apex Court that in such circumstances, it is always open to the court before which the order is challenged to travel beyond the form and ascertaining the true character of the order. It is the foundation of the order which really matters. 5.7 In Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [ (1999) 2 SCC 21 ] and in other decisions, proposition of law laid down is that in certain cases of temporary servants and probationers, if the inquiry undertaken about their misconduct forms the motive of termination order, then the termination could not be said to be punitive merely because principles of natural justice have not been followed. In such circumstances, it was observed, without becoming stigmatic, the employer can exercise its right to terminate the service of the employee concerned. 5.8 In the other line of decisions, the Supreme Court has ruled that if the facts revealed either in the inquiry or from the narration of the order itself that inquiry into the conduct was not the motive but it was a foundation and the allegations of misconduct considered against the employee was made a foundation of termination of service of a temporary servant or probationer, such action would become punitive and it would make order legally unsound. 5.9 This Court in Manish Nayanbhai Mod v. Vadodara Municipal Corporation [ 2018(2) GLR 1636 ] dealt with the question whether order passed against temporary employee if could be said to be stigmatic in nature, whether it ought to have been passed without conducting inquiry. It was held that even if the petitioner was fixed period employee, his services could not have been terminated by way of passing stigmatic order in the nature of punitive order without giving him opportunity to defend. The order of termination was quashed. The decision was confirmed in Letters Patent Appeal No.189 of 2018 decided on 20th February, 2018. 5.10 The Letters Patent Bench held and observed, “4.1 … … … As a necessary corollary, when there is a breach of procedure of instituting full-fledged departmental inquiry, particularly, when termination order referred to following of Gujarat Civil Services [Discipline & Appeal] Rules, 1971, the issuance of show cause notice, receiving reply and then to take final decision to terminate services of an employee was unjust, unreasonable, arbitrary, in breach of the Rules, 1971, violative of principles of natural justice and Article 14 of the Constitution as it would not make any difference whether the employee was appointed temporarily for a fixed term on a fixed salary incorporating various conditions.” 6. In view of the foregoing discussion, it is only to be stated to reiterate that the order impugned herein, has a manifest stigmatic stint and character as it is made to proceed on the ground that there was a breach of the provisions of the PC&PNDT Act by the petitioner whereas such conclusion was drawn only on the basis of filing of criminal complaint against the petitioner. The order was passed as if the petitioner has committed a breach of the provisions of the Act which was proved and accordingly misconduct was committed by the petitioner. The ground of breach of the provisions of the Act by the petitioner and the consequential termination based on formation of such opinion, had a live nexus. It was an injurious order stigmatising the petitioner. In the above light, petitioner is entitled to succeed. 7. Resultantly, Resolution-cum-order dated 09th May, 2017 passed by Deputy Secretary, Health & Family Welfare Department, terminating services of the petitioner is hereby set aside. It was an injurious order stigmatising the petitioner. In the above light, petitioner is entitled to succeed. 7. Resultantly, Resolution-cum-order dated 09th May, 2017 passed by Deputy Secretary, Health & Family Welfare Department, terminating services of the petitioner is hereby set aside. The respondents are directed to reinstate the petitioner in his same status of service as if no order of termination is passed, with full back wages and other consequential benefits. It is, however, clarified that the authorities are not precluded from proceeding against the petitioner in accordance with law, if so opts for. Petition stands allowed in the said terms. Direct service is permitted.