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2024 DIGILAW 703 (GUJ)

Shamim Ilyas Vohra v. State Of Gujarat

2024-04-02

BIREN VAISHNAV, PRANAV TRIVEDI

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JUDGMENT : BIREN VAISHNAV, J. 1. This appeal under Clause 15 of the Letters Patent has been filed by the original petitioner challenging the judgment and order dated 07.01.2016 passed in Special Civil Application No.22763 of 2006. By the CAV Judgment dated 07.01.2016, the learned Single Judge dismissed the petition of the appellant herein. 2. Brief narration of facts which have been set out by the learned Single Judge and which would suffice for the purposes of this judgment read as under: “1. By preferring this petition under Article 226 of the Constitution of India, the petitioner has, inter alia, challenged the order dated 05.09.2006, passed by respondent No.1-State of Gujarat, whereby, the services of the petitioner have been put to an end during her period of probation, on the ground that they were not found to be satisfactory. The petitioner has further prayed for a direction to the respondents to re-employ her on the original post by protecting her inter-se seniority and to pay her full back-wages/ salary with interest at the prevailing Bank rate. 2. A brief factual narration of the facts, as stated in the petition, would be necessary. In response to the public advertisement issued by the Gujarat Public Service Commission (“GPSC”) for the post of Assistant Charity Commissioner (Class-I), the petitioner, being qualified, applied for the post and was selected through the competitive written examination and oral interview. The GPSC recommended the name of the petitioner by letter dated 16.10.2001, for the said post, to respondent No.1. The petitioner was appointed as Assistant Charity Commissioner on probation, for a period of two years from joining the service, vide order dated 23.04.2002, passed by respondent No.1. She joined her duties on 30.04.2002, at the Regional Office, Valsad. The petitioner was, thereafter, transferred and posted at the Regional Office, Junagadh and subsequently, at the Regional Office, Amreli. During her posting at the Regional Office Valsad, the petitioner was also given additional charge of Regional Offices, Godhara, Navsari and Dahod. While she was serving at the Regional Office, Junagadh, the petitioner was given the additional charge of Regional Office, Porbandar. It is the case of the petitioner that during her entire period of service, she has not received any communication with regard to the extension of her probation period and nor has she received any show cause notice contemplating the initiation of any disciplinary action against her. It is the case of the petitioner that during her entire period of service, she has not received any communication with regard to the extension of her probation period and nor has she received any show cause notice contemplating the initiation of any disciplinary action against her. During her posting at Junagadh, a written explanation from the petitioner was called for by respondent No.2, with regard to an episode involving the “Dharna” and fast by a local political leader and Member of the Legislative Assembly (“MLA”) regarding a Change Report of a Trust, of which the said MLA was the President. The petitioner submitted her explanation vide letters dated 06.04.2005 and 15.04.2005. Thereafter, the petitioner was transferred from the Regional Office, Junagadh, to the Regional Office, Amreli. 3. It appears that the petitioner was also implicated in a criminal case filed by the Deputy Charity Commissioner and an FIR dated 20.06.2005, was filed against the then Deputy Charity Commissioner. In this matter as well, the petitioner did not receive any intimation regarding departmental action being initiated against her. While the petitioner was working as Assistant Charity Commissioner at the Regional Office, Amreli, her services were terminated by the impugned order. Aggrieved thereby, the petitioner has approached this Court, by way of the present petition.” 3. Mr.Shalin Mehta learned Senior Advocate appearing with Mr.Manan Paneri learned advocate for the appellant would submit as under: 3.1 That the learned Single Judge dismissed the petition on two grounds. It was the case of the petitioner-appellant herein before the learned Single Judge that on account of extended period of probation, the appellant ought to have been treated as deemed to have been confirmed in service even though no formal order has been passed in this regard. He would submit fairly stating that in light of the position of law enunciated by the several judgments of the Supreme Court, the question of he assailing the order of the learned Single Judge on that count may not be open. 3.2 That however from the reading of the order of termination that though the order on the face of it suggests no stigma, when the affidavit in reply filed by the respondents is read, it is apparent that the order of termination is stigmatic as the respondents found the service of the appellant unsatisfactory. 3.2 That however from the reading of the order of termination that though the order on the face of it suggests no stigma, when the affidavit in reply filed by the respondents is read, it is apparent that the order of termination is stigmatic as the respondents found the service of the appellant unsatisfactory. Mr.Mehta learned counsel for the appellant would submit that the order of termination whether termination simplicitor or punitive, can be decided on lifting the veil and when it is so done in the facts of the present case, it becomes apparent that the order of termination is founded on misconduct and in light of the several decisions of the Hon’ble Supreme Court, the order of termination has to be held to be punitive or stigmatic. Mr.Mehta learned counsel for the appellant would invite the Court’s attention to the averments in the affidavit in reply to submit that if the averments in the reply are read, it indicates that the confidential report for the period from 30.04.2002 to 15.10.2002 could not be written. For the period from 16.10.2002 to 31.03.2003 the confidential report of the applicant was average. The affidavit further goes on to read that there are many adverse entries in the confidential reports of the appellant to the effect that she was discharging her duties below the norms which have been prescribed by the Government. For the period from 01.04.2004 to 30.06.2004, adverse remarks have been mentioned in her confidential report to the effect that her attitude is not good, she is dishonest and during a preliminary inquiry made by the Government with regard to change reports, it has been found that the appellant was involved in the same in the capacity of a practicing advocate at the relevant point of time. The affidavit further indicates that pursuant to the inquiry report in this regard, an FIR has been lodged by the appellant by the Deputy Charity Commissioner, Ahmedabad. The Vigilance Commissioner had also given report on 09.06.2005, wherein, it has been stated that the appellant has been involved in the matter of change report. It is on this count that having found her work as not satisfactory, services of the appellant had been terminated. The Vigilance Commissioner had also given report on 09.06.2005, wherein, it has been stated that the appellant has been involved in the matter of change report. It is on this count that having found her work as not satisfactory, services of the appellant had been terminated. 3.3 Mr.Mehta would therefore submit that obviously when the veil is lifted, it is apparent that the order of termination was founded on an inquiry and a vigilance report held behind the back of the appellant and in line of the judgments of the Supreme Court since the order of termination during probation was founded on these facts, the order had to be held to be punitive. 3.4 Mr.Shalin Mehta would place reliance on the following decisions of the Supreme Court: (I) In case of Anoop Jaiswal v. Government of India and Another reported in (1984) 2 SCC 369 . (II) In case of the Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and others reported in (2015) 15 SCC 151 . (III) In case of A.P.State Federation of Coop. Spinning Mills Ltd. and Ors. v. P.V.Swaminathan reported in (2001) 10 SCC 83 . (IV) In case of Nehru Yuva Kendra Sangathan v. Mehbub Alam Laskar reported in (2008) 2 SCC 479 . 3.5 Referring to the case of Anoop Jaiswal (supra), Mr.Mehta, referring to paras 12 and 13 thereof, would submit that it is now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct, it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in form is merely a determination of employment but is in reality a cloak for an order of punishment, it can be held that the order is punitive. 3.6 In the decision in the case of Ratnesh Kumar Choudhary (supra) Mr.Mehta would submit that the facts revealed that the order of termination was founded on misconduct, the same ought to be held to be punitive. 3.6 In the decision in the case of Ratnesh Kumar Choudhary (supra) Mr.Mehta would submit that the facts revealed that the order of termination was founded on misconduct, the same ought to be held to be punitive. Reading the aforesaid judgment which set out the case law, the submission of Mr.Mehta would be that if there are allegations of misconduct and if an inquiry is held to find out the truth of that misconduct, and an order of termination of service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post but to find out the truth of allegation of misconduct and in such a situation the order would be founded on misconduct and therefore held to be punitive. Reliance was also placed on a decision in the case of A.P.State Federation of Coop. Spinning Mills Ltd. and Ors. (supra). Relying on para 2, he would submit that the Court is not debarred from looking to the attendant circumstances i.e. the circumstances prior to the issuance of the order as is in the present case and the Court therefore on reading the affidavit in reply ought to come to the conclusion that the so called inefficiency was the real foundation of passing of the order and the order ought to be held to be punitive. 3.7 Relying on the decision in case of Nehru Yuva Kendra Sangathan (supra), Mr.Mehta would submit that referring to the case law on the question of whether the order of termination was the ‘motive’ or the ‘foundation’, though it is difficult to categorize or to classify strictly these orders, but where orders are based on misconduct as foundation, the orders ought to be held to be punitive and stigmatic. 3.8 Relying on a decision in the case of Pradip Kumar v. Union of India and others reported in (2012) 13 SCC 182 , Mr.Mehta would submit that the Supreme Court held that non communication of deficiencies in work render such an order of termination as one on the ground of unsuitability and therefore, such an order would therefore amount to termination founded on these deficiencies and the order of discharge ought to be held to be stigmatic. 4. 4. Ms.Shruti Dhruve learned AGP would support the order of the learned Single Judge and submit that reading the order of termination itself would indicate that it was not an order which can be termed as a punishment but an order where the probation was not confirmed on the ground of satisfactory service not being rendered which was a prerequisite for confirmation in a post. She would submit that it cannot be held that the order of termination was stigmatic. In support of her submission, Ms.Shruti Dhruve learned AGP would rely on the following decisions: I. In case of The State of Punjab and others v. Jaswant Singh reported in 2023 LiveLaw (SC) 761 II. In case of Director Aryabhatta Research Institute of Observational Sciences (Aries) v. Devendra Joshi reported in 2018 (15) SCC 73 III. In case of Rajesh Kumar Srivastava v. State of Jharkhand reported in 2023 2011 (0) AIJEL-SC 49534 IV. In case of Jai Singh v. Union of India reported in 2006 (0) AIJEL-SC 37669 V. In case of State of Uttar Pradesh v. Ashok Kumar reported in 2005 (0) AIJEL-SC 36094 VI. In case of State of Haryana v. Satyender Singh Rathore reported in 2005 (0) AIJEL-SC 35519 4.1 Relying on the decision of Jaswant Singh (supra), Ms.Dhruve would submit that when the order of termination of the case is read, it is apparent that the constable there before the Supreme Court was discharged from service as he was not likely to become an efficient police officer. This fact was stated in the order of termination. She would submit that looking to the nature of the order in the facts of the present case, it is clear that the test to be applied is to ask the question as to what was the object of the inquiry. If an inquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. On the other hand if such an inquiry or assessment is aimed at determining the suitability of the employee, such termination would be a termination simplicitor. On the other hand if such an inquiry or assessment is aimed at determining the suitability of the employee, such termination would be a termination simplicitor. She would therefore submit that in the facts of the present case merely because of an averment in the affidavit in reply, it cannot be inferred that the inquiry was held for finding out a misconduct but only for the purposes of considering her suitability to be retained in service when she was on probation. 4.2 Learned AGP would also rely on the decision in case of Director Aryabhatta Research Institute of Observational Sciences (Aries) (supra). The decision would be relied upon to submit that though a prima-facie finding was recorded on the basis of a preliminary inquiry when the employer does not proceed further to hold a detailed inquiry to prove the misconduct and a decision is taken not to retain an employee, the termination of services on the basis of such adverse entries or an assessment of work will not be punitive, as these facts are merely a motive. Reliance was also placed on the decision in case of Rajesh Kumar Srivastava (supra). She would rely on para 4 of the decision to reiterate her submission that the order was not stigmatic. Learned AGP also relied on the decision in case of Jai Singh (supra) to submit that whether an order of termination is simplicitor or punitive has ultimately to be decided giving due regard to the facts of the case and sometimes the line is either thin or overlapping. Reliance was also placed on the decision in case of State of Uttar Pradesh (supra). 4.3 Ms.Dhruve relying on the decision in case of Satyender Singh Rathore (supra), would submit that the order of termination cannot be said to be founded, on the question of holding an inquiry and therefore it cannot be held to be punitive. 5. Perusal of the order of the learned Single Judge would indicate that the learned Single Judge considering the judgment of the Supreme Court in paragraphs 32 and 33 has held as under: “32. 5. Perusal of the order of the learned Single Judge would indicate that the learned Single Judge considering the judgment of the Supreme Court in paragraphs 32 and 33 has held as under: “32. Relying upon the observations of the Supreme Court quoted hereinabove, it is submitted on behalf of the petitioner that in the present case as well, the background and circumstances in which the order of termination was passed is reflected from the averments made in the affidavit-in-reply, showing that though, on the face of it, the impugned order may seem to be an order of termination, simpliciter, however, in reality, it is stigmatic and punitive. An extract of the Confidential Report has been annexed to the afiidavit-in-reply. The petitioner has annexed the full document. A perusal of documents obtained by the petitioner under the RTI Act reveals that they contain certain file notings, in which the performance of the petitioner has been referred to, in the context of the completion of the probationary period. 33. The Confidential Report refers to certain specific periods of the petitioner’s service in the context of her suitability for the post of Assistant Charity Commissioner. The Report indicates that the services of the petitioner have not been found to be satisfactory. No allegations have been levelled against the petitioner in the impugned order and no departmental inquiry has been initiated. There was, therefore, no requirement of issuing a show cause notice or calling for an explanation from the petitioner. The incident regarding the MLA was a specific one for which an explanation of the petitioner was called. However, this was not done in the context of her confirmation on the post or the extension of the probationary period. What has been done in the Confidential Report is an evaluation of the work of the petitioner, which has been found to be unsatisfactory. It is the prerogative of the employer not to confirm on a post any probationer whose services are not satisfactory. Just because the maximum period of probation has elapsed, does not mean that an employee whose services are unsatisfactory should be foisted upon the employer, merely because no order extending the probationary period, or confirming the employee on the post, has been passed. In the present case, the impugned order terminating the services of the petitioner on the ground of unsatisfactory work is corroborated by the material on record. In the present case, the impugned order terminating the services of the petitioner on the ground of unsatisfactory work is corroborated by the material on record. This Court is unable to agree with the submissions advanced on behalf of the petitioner that the background and circumstances that led to the passing of the impugned order are punitive and stigmatic in nature, therefore, these aspects be read into the impugned order. On the face of it, the impugned order is that of termination, simpliciter, and cannot be termed as punitive or stigmatic. The existence of the Confidential Report evaluating the performance of the petitioner for the purpose of confirmation, and the reference to it in the affidavit-in-reply, cannot convert the order into a stigmatic one. It is not mandatory for the employer to reveal each and every reason to the probationer regarding why his, or her, work has not been found to be satisfactory. However, the period of probation can be extended to give the probationer a chance to improve. Mere dissatisfaction with the services of a probationer, on the part of the employer, does not amount to a punishment or stigma. No allegation of misconduct has been levelled against the petitioner in the impugned order. Hence, this Court cannot but conclude that the said order is neither punitive nor stigmatic in nature.” 5.1 What is evident is that the learned Senior Advocate based on the affidavit in reply, would want us to hold that the findings of the learned Single Judge that though the order impugned before the learned Single Judge may seem to be an order of termination simplicitor but was, in reality, a stigmatic and a punitive one, was a finding that was contrary to law. True it is that if the averments and affidavits are seen, they indicate that the confidential report of the appellant for a certain period was not upto the mark. Terms as ‘dishonest’ attitude is not good, etc. has been set out in the reply. Reference is also made to her involvement in the case of changed reports by making false signatures when she was an advocate and practicing in the Charity Commissioner’s office and the recommendation of the Vigilance Commissioner that her services be terminated. The question is whether such averments in the affidavit in reply could at all be termed as the termination being founded on misconduct. The question is whether such averments in the affidavit in reply could at all be termed as the termination being founded on misconduct. 5.2 When the case of Anoop Jaiswal (supra) is referred to, what is evident is that the appellant herein was undergoing training as a probationer. He had reached the place of the parade late. The appellant was discharged from service on the ground that he is unsuitable for being a member of the said service. What was found was that the authority terminating the services of the probationer, passed such an order without holding an inquiry into the alleged misconduct. Reference was made to the counter affidavit which referred to the grounds of indiscipline. The Supreme Court based on such facts, found that before a probationer is confirmed, the authority is under an obligation to consider whether the work is satisfactory and whether the incumbent is suitable to be retained in the post ? Answering the question as to when can the order be founded on motive or foundation, the Supreme Court held that in the facts of the case an explanation was sought from the appellant and based on such explanation, his services were terminated. It was in these facts that the Supreme Court held that the order was a cloak for an order of punishment. If the facts of the present case is appreciated, the only averments in the reply are that the confidential reports of the appellant were not good and the Vigilance Commissioner had opined that her services be terminated. On the concept of ‘motive’ and ‘foundation’, it is not a case where ex-parte inquiry was held behind the back of the employee so as to constitute such remarks as foundation. It was not a case where the report of the Vigilance Commissioner was carried forward and an inquiry was held and therefore by no stretch of imagination can it be held that the termination was founded on such facts to hold it to be punitive. 5.3 A lot of emphasis has been made by the learned counsel for the appellant relying on the case of Ratnesh Kumar Choudhary (supra) where on the basis of a report of the Vigilance Department, the Court had held that the termination was punitive. However, we do not see any reason to agree with the submission of the learned counsel. 5.3 A lot of emphasis has been made by the learned counsel for the appellant relying on the case of Ratnesh Kumar Choudhary (supra) where on the basis of a report of the Vigilance Department, the Court had held that the termination was punitive. However, we do not see any reason to agree with the submission of the learned counsel. Reading of the affidavit in reply and the averments made therein with regard to confidential report, the FIR that was lodged, and in light of the order passed terminating the services which clearly mentions that it is thought fit not to retain the appellant as her services are not satisfactory, the attendant circumstances indicate that there was a mere prima-facie finding recorded that the confidential report was not good and therefore in light of the circumstances, it was not decided to proceed further and therefore not having held a detailed inquiry preceding termination during the course of probation cannot be said to be punitive. The purpose of the preliminary inquiry or the vigilance report was not to find out any misconduct on her part and therefore, such averments in the affidavit in reply cannot be termed to be averments which would entail an order to be founded on such allegations of misconduct so as to brand the order to be punitive. 5.4 As is evident from the decision of the Supreme Court in case of Jai Singh (supra), whether an order of termination is simplicitor or punitive has ultimately to be decided in due regard to the facts and circumstances of the case and many a times a distinction between a foundation and a motive is either thin or overlaping, we have no difficulty in holding in the facts of the present case that the termination is ‘termination simplicitor’, as the same is only a motive in relation to the order and cannot be said to be founded on allegations of misconduct and therefore, we do not find any reason to substitute our view from the view taken by the learned Single Judge. We affirm the CAV judgment dated 07.01.2016 passed by the learned Single Judge and accordingly, dismiss the appeal. 6. Before parting with the order, it will be in the fitness of things for this Court to reproduce paragraph 13 in the case of Jaswant Singh (supra) and the same reads as under: “13. We affirm the CAV judgment dated 07.01.2016 passed by the learned Single Judge and accordingly, dismiss the appeal. 6. Before parting with the order, it will be in the fitness of things for this Court to reproduce paragraph 13 in the case of Jaswant Singh (supra) and the same reads as under: “13. In the case of “State of Punjab and Others Vs. Balbir Singh, (2004) 11 SCC 743 ”, this Court had an occasion to consider Rule 12.21 of PPR and in paragraphs 5, 7 and 11, this Court observed as thus – “5. Thus, the order of discharge simpliciter, prima facie, is not punitive, it being in terms of Punjab Police Rule 12.21, but the question still is whether the incident which led to the passing of that order was motive or inducing factor or was the foundation of order of discharge. 7. Thus the principle that in order to determine whether the misconduct is motive or foundation of order of termination, the test to be applied is to ask the question as to what was the “object of the enquiry”. If an enquiry or an assessment is done with the object of finding out any misconduct on the part of the employee and for that reason his services are terminated, then it would be punitive in nature. On the other hand, if such an enquiry or an assessment is aimed at determining the suitability of an employee for a particular job, such termination would be termination simpliciter and not punitive in nature. This principle was laid down by Shah, J. (as he then was) as early as 1961 in the case of State of Orissa v. Ram Narayan Das, (1961) 1 SCR 606 : AIR 1961 SC 177 : (1961) 1 LLJ 552 . It was held that one should look into “object or purpose of the enquiry” and not merely hold the termination to be punitive merely because of an antecedent enquiry. Whether it (order of termination) amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry. On the facts of that case, the termination of a probationer was upheld inasmuch as the purpose of the enquiry was held to be to find out if the employee could be confirmed. On the facts of that case, the termination of a probationer was upheld inasmuch as the purpose of the enquiry was held to be to find out if the employee could be confirmed. The purpose of the enquiry was not to find out if he was guilty of any misconduct, negligence, inefiiciency or other disqualification. 11. In the light of the above legal position, we will now determine whether, in substance, the order of discharge in the present case is punitive in nature. For this purpose it would be necessary to ascertain, firstly, the “nature of enquiry” i.e. whether the termination is preceded by a fullscale formal enquiry into allegations involving misconduct on the part of the respondent, which culminated in the finding of guilt, and, secondly, the “purpose of the enquiry” i.e. whether the purpose of the enquiry is to find out any misconduct on the part of the employee or it is aimed at finding out as to the respondent being unlikely to prove as an efficient police officer.” 7. The appeal is accordingly dismissed.