JUDGMENT : 1. In the present petition, the petitioner is challenging the termination order dated 06.04.2005 passed by respondent no.4. The petitioner is also claiming unpaid salaries from March, 2004 onwards. 2. It is the case of the petitioner that he has passed SSC / HSC and D.Ed. Examinations and, therefore, he is eligible and qualified to be appointed as Vidyasahayak/Primary Teacher. The respondent No.4 issued an advertisement dated 25.07.2003 for the recruitment of the Vidyasahayaks. The petitioner applied for the same with all his original certificates and mark-sheets by a Registered Post. By the call-letter dated 19.08.2003, the petitioner was called for oral interview on 28.08.2003. The petitioner accordingly remained present. He was duly selected for the post and on the same day, by the letter dated 28.08.2003, the petitioner was asked to attend the camp for the selection of place of posting on 30.08.2003. The petitioner accordingly remained present and he was issued the appointment order dated 30.08.2003 and authorization letter dated 30.08.2003. 2.1 Thereafter, the respondent No.4 issued a show-cause notice dated 27.09.2004 alleging that the petitioner had obtained the service by fabricating bogus mark sheet of D.Ed. qualification for the recruitment of Vidyasahayak in primary schools of Surendranagar District and had cheated District Education Committee, Surendranagar and Government of Gujarat, and therefore, the petitioner was liable to be terminated from service as Vidyasahayak and, hence, he should remain present on 11.10.2004 with documents in support of the genuineness of the said mark sheet. It is asserted by the petitioner that accordingly he remained present and denied the allegations made against him and satisfied the respondent No.4 about the genuineness of his qualification. The petitioner continued to discharge his duties regularly but he has not been paid salaries from March, 2004 onwards. 2.2 Thereafter, the Director of Primary Education also made some correspondence with the Maharashtra State Council of Examinations, Pune for verification of D.Ed. Mark-sheets and certificates of some candidates including the present petitioner, pursuant to which the said Council addressed the letter dated 24.12.2004 with a copy to the petitioner. It is stated in the said letter that the petitioner had passed D.Ed. Examination in 2002 as per the Council's record and that the mark-sheet was verified and found to be correct. Mark-sheets and certificates of some candidates including the present petitioner, pursuant to which the said Council addressed the letter dated 24.12.2004 with a copy to the petitioner. It is stated in the said letter that the petitioner had passed D.Ed. Examination in 2002 as per the Council's record and that the mark-sheet was verified and found to be correct. 2.3 Thereafter, the police arrested the petitioner on 02.03.2005 in connection with Rajkot Zone, CID Crime I-C.R. No.: 1/ 2004 for the offences punishable under Sections 406, 420, 465, 467, 468, 471 of the Indian Penal Code. The petitioner was remanded to police custody for two days and, thereafter, he was released on bail on 11.03.2005 by the Sessions Judge, Surendranagar. 3. Learned advocate Mr.Pujara appearing for the petitioner has submitted that the impugned order is required to be set aside since the same was passed without holding any departmental inquiry. He has further submitted that in fact by the communication dated 24.12.2004, the Commissioner, Maharashtra State Council Examinations, Pune had informed the Director of Primary Education that the mark-sheet of the petitioner was verified and the same is found to be genuine. He has submitted that the impugned order dated 06.04.2005 does not even refer to the aforesaid communication dated 24.12.2004 and hence, the impugned order is required to be set aside. He has placed reliance in support of his submissions on the judgment of the Division Bench dated 15.04.2019 passed in Letters Patent Appeal No.841 of 2019. 3.1 Learned advocate Mr.Pujara has further submitted that the impugned order terminating the petitioner was premised on incorrect facts as the petitioner had actually appeared pursuant to the show-cause notice dated 11.10.2004, whereas in the impugned order, a contrary statement about his non-appearance is recorded. It is submitted by Mr.Pujara that in the affidavit-in-reply filed by respondent No.4 dated 02.07.2005, a statement is made that the impugned order has been passed after hearing the petitioner. 3.2 Learned advocate Mr.Pujara has further submitted that the affidavit dated 02.07.2005 does not deal with the contentions raised in the present petition, more particularly, the communication dated 24.12.2004 is also not referred. 3.3 Learned advocate Mr.Pujara, while inviting the attention of this Court to the interim order dated 13.09.2005, has submitted that the petitioner is also entitled to the full salaries from March, 2004 till he was terminated in service. 3.3 Learned advocate Mr.Pujara, while inviting the attention of this Court to the interim order dated 13.09.2005, has submitted that the petitioner is also entitled to the full salaries from March, 2004 till he was terminated in service. It is fairly considered by him that the aforesaid interim order was the subject matter of challenge before the Division Bench in Letters Patent Appeal No.184 of 2006 and by the order dated 10.11.2011, the interim order was modified to the effect that the appointment of the respondent – original petitioner shall be subject to final outcome of the petition. Thus, he has submitted that the petitioner is also entitled to salary from March, 2004 till he was terminated. 4. Per contra, learned advocate Mr.Munshaw appearing for the respondent No.4 has submitted that the impugned order does not require any interference since it was found that the ten candidates (Vidyasahayaks) were found to have produced forged documents and after holding the necessary inquiry, it was decided to terminate their services. Further reference is made by him to the letter dated 21.07.2004 received from the office of Commissioner, Maharashtra State Council of Examinations, Pune providing the list of such candidates, who did not appear in the examination. He has submitted that the name of the petitioner stands at serial No.139. It is further submitted that a criminal compliant was lodged on 23.09.2004 before the CID (Crime) Rajkot with regard to such production of forged certificate and accordingly, looking to the act of the petitioner, the impugned order was passed. 5. Learned Assistant Government Pleader Mr.Shah has adopted the arguments advanced by the learned advocate Mr.Munshaw and has submitted that the impugned order may not be set aside. 6. This Court has perused the relevant documents as pointed out by the learned advocates appearing for the respective parties. They are also heard at length. 7. It is not in dispute that the petitioner was appointed at Vidyasahayak vide order dated 30.08.2003 and he joined his service on 04.09.2003. The petitioner was paid salaries till February, 2004 and the same was stopped in March, 2004. Hence, he challenged the aforesaid action by filing the captioned writ petition. 8. During the pendency of this petition, the petitioner was terminated by the order dated 06.04.2005, which is also challenged by way of an amendment. The petitioner was paid salaries till February, 2004 and the same was stopped in March, 2004. Hence, he challenged the aforesaid action by filing the captioned writ petition. 8. During the pendency of this petition, the petitioner was terminated by the order dated 06.04.2005, which is also challenged by way of an amendment. By the interim order dated 13.09.2005, this Court directed the respondents to reinstate the petitioner in service and also to pay unpaid wages for the period upto 06.04.2005. The said order was challenged by the respondent authority before the Division Bench by filing Letters Patent Appeal No.184 of 2006. By the judgment dated 10.11.2011, the impugned order was set aside and the appointment of the petitioner was made subject to final outcome of the captioned writ petition. 9. A perusal of the impugned order dated 06.04.2005 reveals that the petitioner was terminated from service for the reason that he had produced forged mark-sheet of D.Ed. qualification of the Maharashtra State. Thus, the impugned order has been premised on the allegation of serious misconduct of producing the forged mark-sheet. The impugned order also reflects that a show-cause notice dated 27.09.2004 was issued to the petitioner calling upon him to remain present on 11.10.2004. The impugned order also reflects that despite the aforesaid issuance of notice and asking the petitioner to remain present on 11.10.2004, he did not remain present, hence, it is presumed that no defence or explanation is tendered by the petitioner to the show cause notice and hence, his services are terminated. 10. At this stage, it would be pertinent to note the averments made by the respondent No.4 in the affidavit-in-reply dated 02.07.2005, wherein paragraph No.2, a categorically statement is made that the petitioner was heard on 11.10.2004 and since he has failed to prove any genuine and original documents with regard to his qualification of D.Ed., therefore, an appropriate decision was taken to discharge him from the service. Thus, the contents of the affidavit and the impugned order are self-contrary. The impugned order refers that the petitioner never appeared on 11.10.2004 despite the issuance of notice, whereas the affidavit-in-reply reveals that the petitioner was heard on 11.10.2004. It has also come on record that neither with the show cause notice dated 27.09.2004 nor with the impugned order dated 06.04.2005, any documents were supplied to the petitioner with regard to the allegations made therein. It has also come on record that neither with the show cause notice dated 27.09.2004 nor with the impugned order dated 06.04.2005, any documents were supplied to the petitioner with regard to the allegations made therein. Thus, the impugned order, which is premised on allegations of serious misconduct of producing forged mark sheet, could not have been based without holding a proper departmental inquiry. 11. In the judgment dated 15.04.2019, passed in Letters Patent Appeal No.841 of 2019, while examining the case of termination of the contractual employee, the Division Bench has observed thus: “7. In the above context, the learned Single Judge relied on the decision of this Court in the case of Manishbhai Nayanbhai Mod vs. Vadodara Municipal Corporation dated 30.11.2017 wherein this Court relied on the cases of Gujarat Steel Tubes Limited vs. Gujarat Steel Tubes Mazdoor Sabha [ (1980) 2 SCC 593 ], Anoop Jaiswal vs. Government of India [ (1984) 2 SCC 369 , Radhey Shyam Gupta vs. U.P. State Agro Industries Corpn. Ltd [ (1999) 2 SCC 21 and for ready reference we reproduce paragraph no. 5.2 of the order passed by the learned Single Judge as under: “5.2 In Manishbhai Nayanbhai Mod (supra), the position of law was discussed, which is highlighted and reproduced as under. “5.1 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. 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 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 thelaw 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. 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) 5.3 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. 5.4 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-fledge 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. 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. 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. 5.5 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) 5.6 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. 5.7 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. 5.7 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 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.” 12. Thus, the proposition of law on the issue is well settled, and it is no more res integra that the real foundation for the order of discharge of an employee even if he is a probationer or ad hoc or temporary has to be seen and if the order of discharge or termination is premised on a misconduct, the same would amount to termination of service by way of punishment and in absence of any inquiry held in accordance with Article 311(2), it is liable to be struck down. In the present case, the alleged misconduct of producing the forged mark sheet at the time of appointment is the foundation of the termination or discharge of the petitioner, hence the same should not have been passed without holding an inquiry. Thus, the termination / discharge is liable to be struck down. 13. In the present case, the alleged misconduct of producing the forged mark sheet at the time of appointment is the foundation of the termination or discharge of the petitioner, hence the same should not have been passed without holding an inquiry. Thus, the termination / discharge is liable to be struck down. 13. There is another aspect which needs to be addressed is that prior to passing of the impugned order, vide communication dated 24.12.2004, the Commissioner, Maharashtra State Council Examinations, Pune informed the Director of Family Education that four students including the present petitioner had in fact appeared in the examination and passed the D.Ed. exam in 2002 as per their record and the mark-sheets were found to be correct. The communication dated 24.10.2004 is incorporated herein: No. MSCE/04/Verification/D.ED/8697/2004 Maharashtra State, Council of Examinations, 17. Dr. Ambedkar Road, Pune-1 Date :- 24th Dec. 2004 To, The Director of Primary Education. Jivraj Mehta Bhavan, Block No. 12 Dr. Gandhinagar. Gujrat State. Sub :- Verification of D.ED Mark sheet and Certificate Ref :- Your Letter No. PSN-04/K/Dt.Dec.2004. Respected Sir, Reference to the above mentioned subject, I inform you that, :- 1. Your office need not to send any demand draft for this matter. 2. The following four student has passed D.ED Exam in 2002 as per our record the mark sheet are verified and found to be correct. 3. In past the verification letter for these four student from this office was with mistake because of any technical problem. Now verifying the mark sheet are correct as per record. Thanking You ! Copy to :- 1. Patel Anjalkumar Chimanlal Commissioner At post Vijapur Tq.&Dist. Mehsana. Maharashtra State Council 2. Patel Shaileshkumar Bhikhabhai. Examinations, Pune. At post Rajpur Tq. Himmatnagar Dist. Sabarkantha 3. Patel Veenaben Amichandbhai. At post Rajpur Tq. Himmatnagar Dist. Sabarkantha 4. Patel Heenaben Jayantibhai. At post Hadiyol Tq. Himmatnagar Dist. Sabarkantha 14. The most vital document dated 24.12.2004 stating about the correctness of the marksheet produced by the petitioner and appearing in the examination of D.Ed. in 2002 has been absolutely ignored by the respondent authorities before passing the order dated 06.04.2005. Surprisingly, the respondents have also not dealt with the aforesaid communication in the affidavit-in-reply dated 02.07.2005. Himmatnagar Dist. Sabarkantha 14. The most vital document dated 24.12.2004 stating about the correctness of the marksheet produced by the petitioner and appearing in the examination of D.Ed. in 2002 has been absolutely ignored by the respondent authorities before passing the order dated 06.04.2005. Surprisingly, the respondents have also not dealt with the aforesaid communication in the affidavit-in-reply dated 02.07.2005. Thus, the communication dated 24.12.2004, which was issued after the letter dated 21.07.2004, on which reliance is placed by the respondent authorities alongwith a list of 143 candidates are produced, is treated as uncontroverted. 15. It was incumbent upon the respondent authorities to consider the communication dated 24.12.2004 before passing the impugned order. By ignoring the same in the affidavit-in-reply also will be a factor which is to be considered in favour of the petitioner. 16. Under the circumstances, the impugned order dated 06.04.2005 does not require to be sustained and the same is hereby set aside. The respondents are directed to reinstate the petitioner to his original post. The respondents are hereby directed to hold a necessary departmental inquiry. Before holding the inquiry, the respondents are directed to verify the communication dated 24.12.2004 and if it is found that the same is genuine and the assertion made therein about passing the D.Ed. exam in 2002 by the petitioner is found to be correct, then the respondents shall not hold any departmental inquiry and reinstate the petitioner with continuity of service and 50% back wages. 17. Since it is found that the impugned order dated 06.04.2005 is tainted with aforesaid defects and non-application of mind, the respondents are directed to pay full salary to the petitioner from March, 2004 till the termination order dated 06.04.2005. 18. Necessary orders in terms of the direction of this Court shall be passed within a period of two months from the date of receipt of order of this Court. Rule made absolute. Direct service is permitted.