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Gujarat High Court · body

2019 DIGILAW 824 (GUJ)

Kirit Laxmanbhai Rajput v. State of Gujarat

2019-09-26

N.V.ANJARIA

body2019
JUDGMENT : N.V. ANJARIA, J. Heard learned advocate Mr.Bharat Rao for the petitioner and learned Assistant Government Pleader Ms.Krina Call for the respondent – State. 2. By filing the present petition under Article 226 of the Constitution, petitioner has prayed to set aside order dated 18th September, 2017 passed by respondent No.2 – the Dean, Gujarat Medical Education & Research Society, Vadnagar. It is further prayed to reinstate the petitioner in service with full back wages and all consequential benefits. 3. The petitioner came to be appointed pursuant to the process of interview held on 19th September, 2016 on the post of Junior Resident in the Gujarat Medication Education & Research Society College, Vadodara (GMERS Medical College) which is run and owned by the Gujarat Medical Education Research Society which in turn 100% owned by Government of Gujarat. Petitioner's appointment was on the post of Junior Resident in Surgery Department of the College for a period of 11 months from 19th September, 2016. The petitioner has stated that he successfully completed the period of 11 months and the contractual period of the petitioner came to be extended with effect from 21st August, 2017. 3.1 The order of extension recited that, “We are hereby pleased to inform you that you are continued as Junior Resident in Surgery Department for further 11 months from dated 21st August, 2017 as your progress report from the department is satisfactory”. It is the case of the petitioner on the basis of the said extension that the services of the petitioner found satisfactory and the employing authority had no complaint against the petitioner. It was stated that the petitioner had been discharging his duties honestly and diligently. 3.2 It was stated that all of a sudden, services of the petitioner came to be terminated on 18th September, 2017 by respondent No.2 without assigning any reason. Copy of order dated 18th September, 2017 mentions simply that the services of the petitioner were ordered to be put an end to with effect from 18th September, 2017. 3.2 It was stated that all of a sudden, services of the petitioner came to be terminated on 18th September, 2017 by respondent No.2 without assigning any reason. Copy of order dated 18th September, 2017 mentions simply that the services of the petitioner were ordered to be put an end to with effect from 18th September, 2017. It is the case of the petitioner that when the petitioner approached respondent No.2 to know the reason for termination of his services, after making the petitioner to pay visits on several times, he was finally told orally that the petitioner was convicted in criminal case under Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act and pursuant to the inspection, Criminal Case No.365 of 2014 was registered against the petitioner before the court of Judicial Magistrate First Class, Satlasana. Learned Judicial Magistrate First Class by his judgment and order dated 30th September, 2015 convicted the petitioner. 3.3 Against the conviction, petitioner approached the Sessions Court, Mehsana by preferring Appeal No.12 of 2015. The Sessions Court by judgment dated 06th February, 2016 set aside the conviction and remanded the case to learned Judicial Magistrate, Satlasana, for deciding it on merits de novo. Thereafter learned JMFC decided the case afresh and convicted the petitioner by judgment and order dated 11th October, 2017. Appeal No.41 of 2017 was preferred by the petitioner against the said conviction in which the conviction was confirmed, whereafter the petitioner has preferred Criminal Revision Application No.369 of 2018 before this Court, which Revision Application has been admitted on 11th April, 2018. 4. Contesting the petition, defence raised by the respondents in the affidavit-in-reply filed on behalf of respondent No.2 was inter alia that when the petitioner was taken on contractual basis in service, authorities were not aware that the petitioner had violated the provisions of the Pre- Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act and therefore he was convicted in the year 2015 and 2017. It was stated that respondent No.2 college run by GMER Society was of the opinion that the person who was convicted, could not be continued in service and that the College would not like to take assistance of further services of the petitioner. It was contended that as per Clause 13 of the letter of appointment, services of the petitioner was liable to be terminated without giving any notice. It was contended that as per Clause 13 of the letter of appointment, services of the petitioner was liable to be terminated without giving any notice. It was also stated that Clause 14 of the appointment letter was operated to dispense with the services which provides that if at a later stage it was found that the employment was misleadingly and falsely obtained and with suppression of information, the services shall be liable to be terminated without any notice. 5. The impugned order of termination dated 18th September, 2017 issued against the petitioner only mentioned that the petitioner's services were being dispensed with and put to an end with effect from 18th September, 2017. No reasons were apparently assigned in the order. However, in the affidavit-in-reply reason was supplied that since the petitioner was convicted under the PC & PNDT Act, his services were terminated. Learned advocate for the petitioner could successfully rely on the principle laid down in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi [ (1978) 1 SCC 405 ] that when a statutory functionary makes an order, its validity would not be judged by the fresh reasons supplemented in shape of the affidavit or otherwise. 5.1 When the reasons for termination of petitioner's services were disclosed for the first time in the affidavit-in-reply, it was not permissible for the authority to justify the order by adopting such course. The order itself ought to have mentioned the grounds and reasons for passing it. The order has to be assessed on its own for its nature and character. 5.2 It is well settled that it is not the format of the order but the foundation thereof, which matters. In order to judge whether the order provides for termination simplicitor or the termination of service is effected as penal measure, the foundational facts have to be noticed. Whether the particular facts motivated the authority to pass the order or they were in the foundation of the order, is the decisive aspect. 5.3 In Chandra Prakash Shahi v. State of U.P. [ (2000) 5 SCC 152 ], the Supreme Court explained differentiation in the concept of motivation and foundation while dealing with the case of termination of a probationer. 5.3 In Chandra Prakash Shahi v. State of U.P. [ (2000) 5 SCC 152 ], the Supreme Court explained differentiation in the concept of motivation and foundation while dealing with the case of termination of a probationer. “Motive is the moving power which impels action for a definite result, or to put it differently, motive is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? It if was the factor of general unsuitability of the employee for the post held by him, the act would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were to be true in the preliminary inquiry.” (para 29) (emphasis supplied) 5.4 It was held that the form of the order may be merely a camouflage for the order of dismissal actually passed on the basis of foundational facts which constituted a ground of misconduct. The Apex Court stated that in such circumstances, it is always open to the court before which the order is challenged, to go beyond the form and ascertain the true character of the order. It was stated that it is the foundation of the order which really matters. 5.5 In Anoop Jaiswal v. Government of India [ (1984) 2 SCC 369 ] the Supreme Court held that it is permissible for the court to go behind the formal order of discharge so as to find out the real causeof- action. It was stated that from the record and attendant circumstances of the case, it was becoming clear that the real foundation of the order of termination was the alleged act of misconduct, the order would tantamount to termination of service by way of punishment and in absence of any inquiry held in accordance with Article 311(2) of the Constitution, the order was liable to be struck down. 6. 6. Reverting back to the facts of the present case, affidavit-in-reply filed by the respondents disclosed the foundation on which the action of terminating the service was rested by the respondents. It was stated that petitioner was convicted and that second criminal case was pending against him, due to which it was considered that petitioner was not fit to be continued in service. Resultantly, the order was passed. The foundation of facts on the basis of which the action of termination is taken, may be available from any source other than the order itself. In the present case, it is the clear stand in the affidavit-in-reply raised by the respondents reveals as to what was the foundation for terminating the services of the petitioner. 6.1 In Union of India v. A.P. Bajpai [ (2002) 3 SCC 433 ] the Supreme Court on the basis of facts of that case, concluded that the statements made by the appellant in the counter affidavit 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 to be stigmatic. In the present case, entirely different complexion is offered where the foundation was an alleged act of misconducting by violating the provisions of the Act. The foundational character of the order was disclosed thereby. 6.2 In the cases like one on hand where the order itself may not be revealing the reason for termination, reasons in the foundation are available from elsewhere, it is permissible for the court to lift the veil and see through the order to know the foundational facts or the foundational reasons. When it is found that such reasons or grounds have a live nexus with the order, such action has to be frowned upon as passed upon misconduct and penal in character when it is unsupported by holding of an inquiry and observance of principles of natural justice. 6.3 The Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha [ (1980) 2 SCC 593 ] observed thus, "53. 6.3 The Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha [ (1980) 2 SCC 593 ] observed thus, "53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used." (Para 9) (Emphasis supplied) 6.4 Not only the above position of law emerges, in the present case the order was sought to be founded on the ground that the petitioner has violated the provisions of the PC & PNDT Act and that he was convicted thereunder. On facts there are weighty reasons which would displace such stand and case of the petitioner. The order of termination was passed on 21st August, 2017. Now considering the admitted facts, the petitioner came to be convicted by the trial court by judgment and order dated 30th September, 2015. The petitioner preferred appeal before the Sessions Court. The order of conviction was quashed by the Sessions Court and by judgment and order dated 06th February, 2016 the matter was remanded back to the court of Judicial Magistrate First Class for trial de novo. The petitioner preferred appeal before the Sessions Court. The order of conviction was quashed by the Sessions Court and by judgment and order dated 06th February, 2016 the matter was remanded back to the court of Judicial Magistrate First Class for trial de novo. The order of conviction in the fresh trial was recorded on 11th October, 2017. 6.5 Therefore, when the order of termination dated 18th September, 2017 was passed, conviction against the petitioner did not exist. It was already set aside and the case was remanded to the trial court. When there was no conviction at the relevant juncture passed against the petitioner, the respondents were not justified in terming that the petitioner had violated the provisions of the PC & PNDT Act and that he was convicted, to be liable to be driven out of the service. The order was passed on a premise not supported by the foundational facts as on that date petitioner was not convicted. 6.6 Thus, the impugned order of termination against the petitioner could not be sustained in the manner and for the reasons it is passed at the relevant point of time. The factual position obtained on the date of passing of the order did not support the ground on which it was passed. Eventhough the subsequent developments including conviction of the petitioner may be relevant factor, it would not save the present action of termination from being declared illegal and unsustainable. 7. In light of the above reasons, the present petition deserves to be allowed. Resultantly, the petitioner is directed to be reinstated in service on the original post and the same status, with salary for the interregnum and granting all consequential benefits. However, the respondents are not precluded from proceedings against the petitioner in accordance with law. Direct service is permitted. (Petition allowed)