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2019 DIGILAW 846 (GUJ)

Jitendra Savajibhai Sorathiya v. State of Gujarat

2019-10-03

N.V.ANJARIA

body2019
ORDER : N.V. ANJARIA, J. 1. In the facts and circumstances of the case and having regard to the request and consent of the parties appearing through their respective learned advocates, the petition was taken up for final consideration today. 1.1. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Manan Mehta waives service of Rule for the respondents. 1.2. Heard learned advocate Mr. Prabha Prasad for the petitioner and learned Assistant Government Pleader. 2. The challenge in this petition is directed against order dated 21.5.2019 passed by the Chief Town Planner, Gandhinagar-the respondent No. 2 herein, by which the petitioner came to be terminated concluding that the petitioner had committed misconduct. The petitioner has prayed to set aside the order and to take him back in service with grant of all consequential benefits of salary etc.. 2.1. The main ground of challenging the impugned order canvassed on behalf of the petitioner, is that the impugned order came to be passed without affording any opportunity of hearing and without holding any departmental enquiry even though termination was sought to be based on the allegations of misconduct and by concluding that the petitioner had committed misconduct. 3. It appears that the petitioner was appointed by order dated 10.11.2014 pursuant to his selection in the process undertaken by the respondent No. 2. Copy of the said order placed on record, showed that the petitioner was appointed as Surveyor in the Surat District. The appointment of the petitioner was for a fixed period of five years with fixed pay. The petitioner resumed his duties on 17.11.2014. 3.1. It appears that First Information Report came to be filed before the D.C.B. Police station, Surat on 2.4.2019 alleging commission of offence punishable under sections 406, 420, 465, 466, 467, 468, 471, 472, 474, 120(B) and 114 of IPC. The name of the petitioner was included as an accused afterwards upon statement of co-accused. Based on the contents of the FIR, the impugned order came to be passed by the respondents stating that the petitioner had committed serious misconduct. It was stated that since the petitioner was appointed for a fixed period and on fixed pay and that since he had shown serious dereliction of duties, it amounted to serious misconduct, and therefore as per conditions of the letter of appointment, services were liable to be terminated. It was stated that since the petitioner was appointed for a fixed period and on fixed pay and that since he had shown serious dereliction of duties, it amounted to serious misconduct, and therefore as per conditions of the letter of appointment, services were liable to be terminated. The impugned order was accordingly rested on such facts and recitals. 4. Learned advocate for the petitioner assailing the order on the ground of breach of natural justice, additionally submitted that the State Government has issued Resolution dated 20th October, 2015 and 28th March, 2016 by which certain conditions of service for the employees appointed on a fixed pay have been provided for. It was submitted that as per condition No. 14A in Schedule-I to the Government Resolution dated 28th March, 2016 it is contemplated that principles of natural justice and conducting of inquiry in case of misconduct have to be followed and undertaken before terminating the services of an ad hoc employee. 5. The position of law in relation to effecting termination of service of an employee, even if on the fixed pay, by passing a stigmatic order without following principles of natural justice came to be delineated and discussed by this Court in Imranbhai Anwarbhai Majothi v. State of Gujarat being Special Civil Application No. 17872 of 2017 decided on 30th November, 2017. In that case, petitioner was appointed as Beat Guard. The allegations were raised against him inter alia that he had stolen two pass-books, that he mentioned wrong information in the Register to allow trucks to pass-by illegally. It was stated in the order leading to his termination of service that he used the pass-book for illegal purpose for which it was stolen and due to the act of negligence, caused damage to the forest's properties to a large extent. It was mentioned in the order that if the petitioner was to continue in service, it would entail greater loss and that it was not advisable to continue the petitioner in service since the petitioner was found to be negligent and careless in discharge of his duties. 5.1. The law on the aspect was discussed with reference to the decisions of the Apex Court. In judging whether termination is simpliciter or punitive, a trite distinction is made between motive of the order and foundation of the order. 5.1. The law on the aspect was discussed with reference to the decisions of the Apex Court. In judging whether termination is simpliciter or punitive, a trite distinction is made between motive of the order and foundation of the order. In Chandra Prakash Shahi v. State of U.P. [ (2000) 5 SCC 152 ], the Supreme Court explained the concept of motive and foundation in respect of probationer as under: "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) 5.2. The above statement of law that if the order is punitive and stigmatic in nature, even if the employee concerned is a temporary employee or holding the post as on probation, his dismissal or removal would warrant a regular inquiry and full-fledged compliance of natural justice, emanaged from the early decision of the Apex Court in Anoop Jaiswal v. Government of India [ (1984) 2 SCC 369 ]. In that case, the Apex Court 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. In that case, the appellant was an IPS Officer, undergoing training as a probationer, arrived late by about 22 minutes at the place, even though prior intimation was sent about the time on which, the candidates were required to reach the venue. The incident of delayed reporting was considered to be one by the authorities calling for an inquiry and an explanation was sought for from the petitioner and all other probationer-trainees who had arrived late. The incident of delayed reporting was considered to be one by the authorities calling for an inquiry and an explanation was sought for from the petitioner and all other probationer-trainees who had arrived late. On the basis of explanation, the Director recommended the Government for discharge of the appellant from service. The Government passed order of discharge on the basis of recommendation of the Director with whom, the only ground prevailing was that the appellant did not show any sign of repentance. The High Court dismissed the Writ Petition. However, the Supreme Court allowed the Appeal and held that the order was punitive. The appellant was directed to be reinstated with full benefits. 5.3. 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. In such circumstances, the Apex Court stated, 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. The Supreme Court held, "If …. …. …. the court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground where the aggrieved officer is not afforded a reasonable opportunity to defend himself as provided in Article 311(2). It is wrong to assume that it is only when there is a full scale departmental enquiry any termination made thereafter will attract the operation of Article 311(2)." (Paras 11 and 13) 5.4. It is the foundation of the order which really matters. The Supreme Court in Anoop Jaiswal (supra) stated that if from the record and the attendant circumstances of the present case it becomes clear that the real foundation for the order of discharge of the appellant-probationer was the alleged act of misconduct, the impugned order would amount to termination of service by way of punishment and in absence of any enquiry held in accordance with Article 311(2), it was liable to be struck down. The Supreme Court thereafter directed reinstatement of the appellant of the said case in service with the same rank of seniority he was entitled to before the impugned order passed as if it had not been passed at all. 5.5. The Supreme Court thereafter directed reinstatement of the appellant of the said case in service with the same rank of seniority he was entitled to before the impugned order passed as if it had not been passed at all. 5.5. The Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha [ (1980) 2 SCC 593 ] stated and 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." (Emphasis supplied) (Para 9) 5.5.1. Having delineated the aforesaid principles, the Apex Court held that the order in the case before it could not be treated as a simple order of retrenchment and that it was an order passed by way of punishment. It was held that such order of dismissal which was passed without holding a regular departmental inquiry cannot be allowed to be sustained. 5.6. In Ratnesh Kumar Choudhary (supra) also the Supreme Court considered its own various decisions on the aspect and after referring to the decision in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. It was held that such order of dismissal which was passed without holding a regular departmental inquiry cannot be allowed to be sustained. 5.6. In Ratnesh Kumar Choudhary (supra) also the Supreme Court considered its own various decisions on the aspect and after referring to the decision in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [ (1999) 2 SCC 21 ] observed that the proposition of law operating two ways. In certain cases of temporary servants and probationers if the inquiry undertaken about the very conduct 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, without becoming stigmatic, the employer can exercise its right to terminate service of the employee concerned. In the other line of decisions, the Supreme Court has ruled that if the facts revealed in the inquiry or from the narration of the order itself that the inquiry into the conduct was not the motive but it was a foundation and the allegation of misconduct considered against employee becomes foundation of termination of service of temporary servant or probationer, such action would become punitive and it would make the order legally unsound. The Supreme Court in Ratnesh Kumar Choudhary (supra) thereafter referred to the above quoted observations from Gujarat Still Tubes Limited (supra) terming them as instructive. 5.7. In Imranbhai Anwarbhai Majothi (supra), it was thereafter observed and held, "6. When the impugned order is assessed, evaluated and considered in light of the aforesaid principles, it is even not necessary to adopt the process of lifting of veil. It is not necessary to remove the facade even, for, the order in these very recitals could be manifestly said to be based on allegations of misconduct. The plain reading of order castes stigma. It is a stigmatic action of termination of petitioner's service. Such an action could not have been taken, eventhough the petitioner was a fixed period employee, without giving the petitioner a full-fledge opportunity to defend and thus by holding a regular departmental inquiry. The employer is not allowed to hire and fire employee. The plain reading of order castes stigma. It is a stigmatic action of termination of petitioner's service. Such an action could not have been taken, eventhough the petitioner was a fixed period employee, without giving the petitioner a full-fledge opportunity to defend and thus by holding a regular departmental inquiry. The employer is not allowed to hire and fire employee. Even if the temporary, ad-hoc or probationer employee is driven out of service on the ground of misconduct without holding inquiry and stigma is caste on his career by the punitive order, it is also a facet of behaving with hire and fire attitude by the employer." 5.8. Also stand to support the petitioner another decision of this Court in Special Civil Application No. 1095 of 2016 decided on 21st September, 2016 in which, it was observed in paragraph 8 of the judgment that the order ex facie indicated that the basis of the order of termination was criminal complaint lodged against the petitioner. As the order was passed without compliance of natural justice, it was required indulgence of the Court, stated the Court, after discussing the position of law in that regard. 6. In light of the aforesaid principles and the position of law on the aspect, if the facts of the present petition are re-visited, the petitioner joined his duties pursuant to his selection on 17.11.2014 as a Surveyor in the Surat District for a fixed period of five years as stated in the appointment order. His tenure was to come to an end as per appointment order, on 16th November, 2019. However, in view of the aforementioned impugned termination order dated 21.5.2019, it was put to an end in the middle of the five years. 6.1. Looking at the contents and the recitals mentioned in the impugned order about filling of the F.I.R., it was stated in the impugned order that since the petitioner was involved in the criminal act and thereby since committed misconduct, his services were liable to be terminated. 6.2. Thus, it was clear from the bare reading of the recitals in the impugned order that the foundation of the impugned order was the alleged involvement of the petitioner in the crime mentioned in the FIR. By very nature of the contents of the impugned order, the order could be treated as stigmatic. The order was passed without compliance of principles of natural justice. By very nature of the contents of the impugned order, the order could be treated as stigmatic. The order was passed without compliance of principles of natural justice. Since the allegation of misconduct was the foundation for the penal action taken against the petitioner, above discussed position of law would operate to grant relief to the petitioner. 6.3. While the impugned order will be liable to be quashed and petitioner will be liable to be reinstated, it is clarified that his reinstatement would be for the remainder period which would make up the total fixed period of five years, for which he was appointed. 7. As a result of the above, the impugned order dated 21.5.2019 passed by the respondent No. 2 would be liable to be set aside since it was founded on the allegations of misconduct and is stigmatic in nature but passed without compliance of natural justice and without holding any full-scale department inquiry. Furthermore, the petitioner's appointment being on fixed period of five years, it is clarified that the reinstatement would be for the remainder period which would make up the total period of five years fixed period, for which he was appointed. 8. As a consequence of above discussion and reasons, the impugned order dated 21.5.2019 passed by the respondent-2 terminating services of the petitioner, is hereby set aside. The respondents are directed to reinstate the petitioner within a period of eight weeks from the date of receipt of this order on the original post with continuity of service and with payment of salary/wages for the interregnum as well as the consequential benefits which may arise, as if the order of termination was never passed. The reinstatement of the petitioner directed as above shall be for the period upto making of the total original period fixed for his employment as per order of appointment. The resultant monetary benefits to be paid to the petitioner within a period of eight weeks from the date of receipt of the present order. 8.1. The respondents are not precluded from proceeding against the petitioner in accordance with law. 9. Petition is allowed accordingly. Rule is made absolute in the aforesaid terms. Direct service is permitted.