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2022 DIGILAW 897 (GUJ)

Hiren Parbatsinh Chauhan v. State Of Gujarat

2022-07-22

BIREN VAISHNAV

body2022
JUDGMENT : (1.) RULE returnable forthwith. Mr.Kurven Desai learned AGP waives service of notice of Rule on behalf of the respondent Nos.1 to 3, Mr.H.S.Munshaw learned advocate waives service of notice of Rule on behalf of the respondent No.4. Though served, nobody appears for respondent nos.3 and 5. (2.) Challenge in this petition is to be order dated 29.05.2021 passed by the respondent no.4. (3.) Mr.Shalin Mehta learned Senior Advocate appearing with Ms.Aditi Raol would submit that the issue is covered by the decision rendered in case of State of Gujarat v. Chetan Jayantilal Rajgor decided on 24.07.2020 in Letters Patent Appeal No.1596 of 2019. (4.) Mr.H.S.Munshaw learned counsel appearing for respondent no.4 submits that based on a report and irregularities, the authorities decided to terminate his services on 29.05.2021 and relieved the petitioner from the post of Technical Assistant w.e.f. 31.05.2021 through order dated 29.05.2021. Since the contract was already over non-extension would not involve termination being stigmatic. (5.) Having heard learned counsel for the respective parties, what is evident is that petitioner was appointed on contract basis which appointment was made on 31.03.2011 continued till his services were discontinued from 31.05.2021 based on order passed by respondent no.4 on 29.05.2021 which attributed certain lapses on behalf of the petitioner. (6.) The Division Bench while in Letters Patent Appeal No.983 of 2017 in Special Civil Application No.13621 of 2014 dated 24.04.2018 was considering the contractual appointments and regularization of MNREGA Scheme appointees. Paragraph nos.52.1 and 52.2 of the order of the learned Single Judge were quoted by the Division Bench which read as under: "52.1. The prayer of the petitioners to regularise their contractual services and make them permanent on the establishment is rejected. Limited immunity that is made available to the petitioners is by allowing them to continue on their contractual employment and not to be replaced by other set of contractual employees on ad-hocism. The petitioners shall be continued in the existing cadre as long as the said Scheme continues, but purely on contractual basis and such employment shall be co-terminus with the scheme, subject to evaluation of their performance, service and disciplinary rules as may be made applicable to them. The respondent-State shall insist on periodical upgradation of knowledge, improvisation of technical skill and overall preparedness on the subject, so also on computerisation. 52.2. The respondent-State shall insist on periodical upgradation of knowledge, improvisation of technical skill and overall preparedness on the subject, so also on computerisation. 52.2. The challenge to the Government Resolutions dated December 23, 2013 and August 28, 2014 and the consequential process of recruitment undertaken in the year 2014 pursuant to the public advertisement dated August 28, 2014, succeeds qua the petitioners only. Those petitioner who have qualified in the last examination of the year 2014 shall be continued on contractual employment without insistence on their fresh appointment by the respondent-State." (7.) While deciding the aforesaid case of Chetan Jayantilal Rajgor (supra), the Division Bench of this Court on 24.07.2020 in paras 8 and 9 held as under: "8. The bone of contention of appellants - State authorities is that since the original petitioners are employed on a contract basis and fixed pay, the Department is not under an obligation to conduct a detailed full-scale departmental inquiry. Now, this contention has been the subject matter of scrutiny on earlier occasion before a Coordinate Bench in Letters Patent Appeal No.189 of 2018 between Vadodara Municipal Corporation v. Manishbhai Nayanbhai Modh, decided on 20.2.2018. The relevant observations contained in the said decision are reflecting in Para.4.1 which are also based upon the decision of the Apex Court and in consonance with the provision of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The said observations have also been considered at length by the learned Single Judge which are reflecting in Para. 5.7 of the impugned order. 9. Yet in another decision again by the Division Bench of this Court rendered in Letters Patent Appeal No.841 of 2019 between Rahul Aydanbhai Vak v. State of Gujarat, decided on 15.4.2019, in which the same issue has been considered. 5.7 of the impugned order. 9. Yet in another decision again by the Division Bench of this Court rendered in Letters Patent Appeal No.841 of 2019 between Rahul Aydanbhai Vak v. State of Gujarat, decided on 15.4.2019, in which the same issue has been considered. The relevant discussion of the Division Bench in the said case is contained in Para.7, 8 and 9, in which in no uncertain terms, almost in similar set of circumstance, the Division Bench has clearly opined that full-scale departmental inquiry will have to be undertaken, if initiation of action on the basis of unsatisfactory work, gross negligence or indiscipline or any act which may tantamount to be stigmatic and as such, consistently this view has been clearly opined by the Division Bench." (8.) What is evident from reading the contents of the decision is that if initiation of action is based on an unsatisfactory work, gross negligence or indiscipline, it tantamounts to being stigmatic and unless and until a full scale departmental inquiry is held, irrespective of whether the employee is a regular employee or a contractual employee, the result has to be the same. It has to be noted that before the Division Bench it was the stand of the State that an employee who is appointed on contractual basis need not be terminated after holding a full fledged inquiry. It was in the background of this objection of the government that the Division Bench held thus. "11. From the overall material on record and in consideration of aforesaid observations, we see no distinguishable material to take a different view or deviate from the same. Since almost in similar issue, the proposition is to the effect that whenever any charge is levelled and action is found to be stigmatic, a full-scale departmental inquiry deserves to be undertaken irrespective of whether the delinquent was a regular employee or contractual employee on a fixed salary. As a result of this, we are of the considered opinion that since undisputedly by a brief procedure, an action is initiated against the respondents herein while dismissing their services, said action itself is found to be not on the touchstone of aforesaid proposition of law. As a result of this, no error is committed by the learned Single Judge. As a result of this, we are of the considered opinion that since undisputedly by a brief procedure, an action is initiated against the respondents herein while dismissing their services, said action itself is found to be not on the touchstone of aforesaid proposition of law. As a result of this, no error is committed by the learned Single Judge. Having perused these material, we are not satisfied with the submissions made by learned counsel for the appellants in both these appeals." (9.) Having considered the decisions and the question of law that the courts have decided, there is no reason therefore not to agree with the submissions of learned counsel for the petitioners inasmuch as the order that has been passed terminating the services of the petitioners could not have been so passed on the allegation of misconduct without holding full scale inquiry as laid down by the decisions referred to herein above. (10.) Accordingly, the order impugned dated 29.05.2021 passed by the respondent no.4 is quashed and set aside. The petitioner is ordered to be reinstated on the same terms and conditions on which they were initially appointed. In other words, since the order of termination is set aside, the respondents are directed to take back the petitioner in service on their original post as if the order of termination was not passed. There shall be no consequential benefits available. The respondents are however not precluded from proceeding against the petitioner in accordance with law. Petition is accordingly allowed. Rule is made absolute. No costs.