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Gujarat High Court · body

2020 DIGILAW 879 (GUJ)

Devatbhai Ramsibhai Bhoda v. State of Gujarat

2020-10-22

ASHUTOSH J.SHASTRI

body2020
ORDER : 1. The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs: “(A) Be pleased to admit/allow this petition. (B) Be pleased to issue appropriate writ, order or direction and be pleased to quash and set aside the order dated 19.7.2019, as the same is illegal, illogical, discriminatory, violative of Articles 14 and 311 of the Constitution of India and violative of Gujarat Civil Services (Discipline and Appeal) Rules, 1971 and the same is passed without conducting full-fledged inquiry and as the same is passed in breach of principles of natural justice and respondents may kindly be directed to reinstate the petitioner on his original post of Talati-cum-Mantri and further be pleased to direct to pay all back-wages for the intervening period. (C) Be pleased to grant interim relief and by way of interim order, be pleased to reinstate the petitioner on his original post of Talati-cum-Mantri, pending admission, hearing and final disposal of the present petition. (D) Be pleased to pass such order as thought fit in the interest of justice.” 2. The case of the petitioner is that the petitioner came to be appointed as Talati-cum-Mantri vide order dated 5.9.2015. According to the petitioner, after following regular process of recruitment, the petitioner was appointed and also against regular sanctioned post and thereto, after undergoing the regular selection process undertaken by the Gujarat Public Service Selection Board. However, in view of the policy of the respondent-Government authority, the appointments are to be made on fixed salary basis for a period of 5 years and upon completion of 5 years’ tenure on the contractual basis in the fixed salary, all such incumbents would be given regular salary and would be conferred the status of regular employee and in view of such policy, the petitioner was also selected by competent Selection Board of the respondent authority and was appointed on regular permanent post of Talati-cum-Mantri on a fixed salary for a period of 5 years. 2.1 The case of the petitioner was that pursuant to the appointment on 12.9.2015, the petitioner was also sent for training and whose name was also figuring in the list at Serial No. 35 which he successfully completed and was serving continuously and uninterruptedly as Talati-cum-Mantri. 2.1 The case of the petitioner was that pursuant to the appointment on 12.9.2015, the petitioner was also sent for training and whose name was also figuring in the list at Serial No. 35 which he successfully completed and was serving continuously and uninterruptedly as Talati-cum-Mantri. It is submitted that one First Information Report came to be lodged on 11.12.2018 before the Jamnagar ACB Police Station being I-CR No. 7 of 2018 under the provision of Section 7 of the Prevention of Corruption Act and on the basis of such allegations which are levelled in the First Information Report, the action was sought to be initiated. According to the petitioner, the petitioner has never demanded illegal gratification and the charges which are levelled are absolutely false. Even the trap was also not remained successful as nothing was recovered from the petitioner but, has been arraigned falsely in the First Information Report. On the contrary, the petitioner came to be released on regular bail vide order dated 15.12.2018 by the learned Special Judge and Additional Sessions Judge, Jamnagar in Criminal Misc. Application No. 2046 of 2017. But, simultaneously, surprisingly, the respondent authority issued notice on 9.4.2019 and directed the petitioner as to why his services should not be put to an end. 2.2. The reason given in the show cause notice was that petitioner has exhibited dereliction in duty and committed breach of terms of the appointment, hence, was met with issuance of notice. 2.3 The petitioner has further averred in the petition that though the detailed reply was submitted and has also requested to grant an opportunity to cross-examine the witnesses and has also reiterated that he has not committed any breach of prevailing rules and has stated categorically that except filing of false First Information Report, there is no clot in entire service. But, somehow, the authority bent upon and without granting any opportunity of hearing, without holding full-fledged departmental inquiry as required under the provision of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971 (for short ‘the Rules of 1971’) and without issuance of charge-sheet, straightway, an order of termination came to be passed on 19.7.2019 putting an end to the sincere services of the petitioner and that being absolutely impermissible, discriminatory and violative of constitutional protection, the petitioner left with no other alternate has approached this Court by way of present petition under Article 226 read with Article 311 of the Constitution of India. 2.4 This petition appears to have been entertained vide order dated 22.8.2019, wherein Rule was made returnable on 28.8.2019. But, then, from time to time, the matter was adjourned. But, by that time, the present petitioner has moved Civil Application No. 1 of 2020, inter-alia, asking for substantive relief of the petition for seeking quashment of the order of dismissal dated 19.7.2019 with consequential request to reinstate the petitioner. The said Civil Application was heard by the Court and upon request of learned advocates appearing for the respective parties, the said Civil Application was ordered to be heard along with main petition and the main petition was agreed upon by the learned advocates to be taken up by the Court since, according to the petitioner, the issue has been now covered by several decisions delivered by not only the learned Single Judge but also by the Division Bench of this Court and accordingly, the main matter was taken up for hearing. 2.5 This Court, with the aforesaid background, has heard both the learned advocates for the respective parties and upon their request and consent, the matter was taken up for final disposal. 3. Mr. 2.5 This Court, with the aforesaid background, has heard both the learned advocates for the respective parties and upon their request and consent, the matter was taken up for final disposal. 3. Mr. N.K. Majmudar, learned advocate for the petitioner, has vehemently contended that the petitioner was quite qualified and eligible to be appointed as Talati-cum-Mantri and pursuant to the advertisement issued by the respondent authority, he was scanned by Selection Board constituted by the authority and it is only after the regular selection process being undertaken by the authority under the relevant Rules, against the regular sanctioned post, the petitioner came to be appointed and it is only on account of the policy of the respondent authority itself, initial employment was offered on a fixed salary basis on a contractual base for a period of 5 years and after completion of 5 years, the regular status was to be offered to the petitioner. So, according to Mr. N.K. Majmudar, learned advocate, by full-fledged recruitment process lawfully undertaken by the Selection Board of the respondent authority, the petitioner came to be appointed on a substantive post. 3.1 Mr. N.K. Majmudar, learned advocate has further submitted that throughout the tenure of service from the beginning, there is no circumstance adverse to the petitioner but, only on account of some ill-will against the petitioner, he was arraigned falsely by lodging First Information Report, in which also he was granted the regular bail. But, then, instead of complying the principles of natural justice, instead of conducting a regular departmental inquiry and instead of observing the Rules of 1971, the petitioner’s services came to be terminated in an absolutely arbitrary manner which is impermissible. Hence, the petitioner was constrained to approach this Court. It has been contended that this very issue of compliance of principles of natural justice and compliance of regular departmental inquiry is already examined in a series of decisions by the learned Single Judge as well as by the Division Bench of this Court and as such, the issue no longer requires any further elaboration and hence, Mr. N.K. Majmudar, learned advocate, has relied upon following decisions to substantiate his contentions: (1) Special Civil Application No. 12071 of 2018, decided on 26.2.2019. (2) Special Civil Application No. 15773 of 2018, decided on 07.05.2019. (3) Letters Patent Appeal No. 1596 of 2019, decided on 24.7.2020. (4) Misc. N.K. Majmudar, learned advocate, has relied upon following decisions to substantiate his contentions: (1) Special Civil Application No. 12071 of 2018, decided on 26.2.2019. (2) Special Civil Application No. 15773 of 2018, decided on 07.05.2019. (3) Letters Patent Appeal No. 1596 of 2019, decided on 24.7.2020. (4) Misc. Civil Application No. 902 of 2019, decided on 1.10.2020. (5) Special Civil Application No. 11880 of 2020, decided on 22.10.2020. 3.2 By referring to aforesaid decisions delivered by the High Court and relying upon the observations contained therein, a contention is raised that the case is squarely covered. Accordingly, the learned advocate has reiterated that the petition deserves to be allowed by granting the relief as prayed for in the petition. 4. As against this, Mr. H.S. Munshaw, learned advocate appearing on behalf of respondent Nos. 3, 4 and 5, has vehemently opposed the grant of relief to the petitioner mainly on the ground that the petitioner was in the contractual appointment and his employment was subject to certain conditions which are engrafted in the order of employment which is a fixed tenure and fixed monthly salarised employment and as such, the petitioner cannot equate himself to the status of the regular employee and hence, the petitioner is not supposed to be dealt with as if the regular employee is to be dealt with by the department. Learned advocate has submitted that in view of the nature of employment of the petitioner, it is not possible to extend any benefit as the petitioner himself has indulged in such kind of activity which tantamounts to be a breach of his contractual employment. By filing affidavit-in-reply reflecting on page-80 of the petition compilation, an attempt is made to oppose the petitioner substantially on aforesaid stand and has submitted that no regular departmental inquiry nor any opportunity of hearing is to be afforded to him. Multiple contentions appear to have been raised in the affidavit-in-reply but, in substance, the stand was taken as stated above. By referring to the petitioner’s involvement in serious offence, the petitioner himself has become ineligible to be continued in the employment and his appointment and continuance is always subject to the terms of the contract, it is not proper for the petitioner to seek any equality. By referring to affidavit-in-reply, a request is reiterated to dismiss the petition. 5. By referring to the petitioner’s involvement in serious offence, the petitioner himself has become ineligible to be continued in the employment and his appointment and continuance is always subject to the terms of the contract, it is not proper for the petitioner to seek any equality. By referring to affidavit-in-reply, a request is reiterated to dismiss the petition. 5. Having heard the learned advocates appearing for the respective parties and having gone through the contents of the affidavit filed by the authority as well as the petition and the judgments which are tried to be pressed into service, it appears, prima facie, that undisputedly, the petitioner was appointed on a substantive regular sanctioned post of Talati-cum-Mantri and has been recruited through regular selection process which was undertaken by the Gujarat Public Service Selection Board and it is also not in dispute that in view of policy, instead of granting substantive post for a initial period of 5 years, the petitioner was placed in a fixed salary on a contractual basis. A fact is also not in dispute that except lodgment of FIR against the petitioner, there is no other material to indicate that the petitioner has committed any misdeed and in the FIR also, the petitioner was released on regular bail and the case is pending. So, in view of aforesaid undisputed background of fact, the question posed before the Court as to whether the petitioner is subjected to compliance of principles of natural justice or before taking action against him, the department is required to undergo the regular process of departmental inquiry or compliance of the provisions of the Rules of 1971. This question undisputedly appears to have been in controversy in series of decisions before this Court, time and again. But, then, in the recent time, this very issue has been extensively dealt with by the Coordinate Bench of this Court and the same is also confirmed by the Division Bench, whereby the issue is clearly answered and, therefore, this Court is of the considered opinion that case is made out by the petitioner to grant relief. However, since the Court is considering the observations made in various decisions, relying upon the decision of the Apex Court, the Court would like to reproduce some of the relevant observations which are contained in the order passed by the Coordinate Bench in one of the petitions. However, since the Court is considering the observations made in various decisions, relying upon the decision of the Apex Court, the Court would like to reproduce some of the relevant observations which are contained in the order passed by the Coordinate Bench in one of the petitions. Following are the observations which deserve to be reproduced hereunder: “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 passbooks, 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 passbook 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. In Chandra Prakash Shahi vs. 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 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, e-managed from the early decision of the Apex Court in Anoop Jaiswal vs. 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. 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. 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 in Gujarat Steel Tubes Limited vs. 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. 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) 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 vs. U.P. State Agro Industries Corporation 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 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, even though 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 petitioner are re-visited, the petitioner was appointed on 28th September, 2012 as Junior Clerk for a fixed period of five years. His tenure was to come to an end as per appointment order on 28th September, 2017. Pursuant to F.I.R. being C.R. No. I-09 of 2016 registered on 19th December, 2016, the petitioner was supplied to the impugned order of termination is dated 21st August, 2017. 6.1 Looking at the contents and the recitals in the impugned order mentions about filing of F.I.R. against the petitioner at Vadodara (Rural) Anti Corruption Bureau Police Station, Vadodara. It was stated that the petitioner was a Clerk appointed. The complainant stated that he received a phone call from the petitioner to meet him in connection with the work of getting the land of the complainant converted into non-agriculture, that the petitioner asked the gratification of Rs. 60,000/- which was ultimately agreed for Rs. 50,000/- and Rs. 30,000/- was given to the petitioner. The impugned order thereafter narrated the details of the charges applied against the petitioner under the Prevention of Corruption Act, 1988, the factum of his suspension and the extension of suspension from time-to-time. It was thereafter stated that since the offence was registered under the Prevention of Corruption Act and since the petitioner had committed a misconduct of asking illegal gratification, his services were liable to be terminated. Thus, it was clear from the bare reading of the recitals in the impugned order that the foundation in the impugned order was alleged misconduct of taking bribe for which F.I.R. was registered. By very nature of the contents of the 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 foundation for the penal action taken against the petitioner, above discussed position of law would operate to grant relief to the petitioner. By very nature of the contents of the 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 foundation for the penal action taken against the petitioner, above discussed position of law would operate to grant relief to the petitioner. 6.2 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 period which would make up the total period of the fixed period for which he was appointed. 7. As a consequence of above discussion and reasons, the impugned order dated 21st August, 2017 passed by the Collector, Vadodara, is hereby set aside. The respondents are further directed to reinstate the petitioner on the original post of Junior Clerk with continuity of service and salary/wages for the interregnum as well as all consequential benefits as if order of termination was never passed. Reinstatement of the petitioner directed by this order shall be upto making up of the total original period of his employment as per the order of petitioner's appointment. The resultant monetary benefits shall be paid to the petitioner within a period of eight weeks from the date of receipt of this order. Petition is allowed accordingly. Rule is made absolute in the aforesaid terms. Direct service is permitted.” 5.1 In view of the aforesaid observations which have been made on the basis of the decisions delivered by the Apex Court, this Court is of the opinion that the issue is squarely answered, it need not further to be elaborated. 6. Additionally, this Court has also considered one of the decisions delivered by the Division Bench to which this Court is a party being LPA No. 1596 of 2019 and allied matters, decided on 24.7.2020 and the said principles having been laid down and even accepted by the State authority by indicating an inclination not to challenge the same before the higher forum and that being the position, this Court is of the considered opinion that the case is made out by the petitioner. 7. 7. The aforesaid proposition laid down by the Division Bench in aforesaid LPA was the subject matter of implementation of the order contained in MCA No. 902 of 2019, wherein while disposing of the said contempt petition on 1.10.2020, the Court recorded clearly that Ms. Vrunda Shah, learned AGP, admits that the State is not going to file any further challenge to the said order and finally, is inclined to comply with the same. Even after this disposal of the contempt petition, yet another decision on the very same issue, has come up for consideration before the Coordinate Bench in the petition being SCA No. 11880 of 2020 in which also, said proposition is reiterated by the Coordinate Bench while allowing the petition vide order dated 21.10.2020. 8. Hence, in view of this position and the proposition of law, this Court is of the opinion that the petition deserves to be allowed. The order dated 19.7.2019 passed by respondent authority is hereby quashed and set aside and the petitioner will be eligible to be reinstated with a clarification that the reinstatement would be for the period which would make up the total period of fixed period for which he was appointed. The respondents are further directed to reinstate the petitioner on his original post with continuity of service and salary/wages for the interregnum as well as consequential benefits as if the order of termination was never passed. The reinstatement of the petitioner directed by this order shall be upto making up of the total original period of his employment as per the appointment order of the petitioner and the resultant consequential mandatory benefits shall be paid to the petitioner, within a period of 8 weeks from the date of receipt of writ of this Court. 9. This Court, while parting with the present order, is also making it clear that this will not preclude the authority from proceeding against the petitioner strictly in accordance with law. 10. With these observations, the present petition stands allowed. Rule is made absolute. CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020 In view of the order passed in main matter, the present Civil Application (For Director) No. 1 of 2020 does not survive and is disposed of accordingly.