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2025 DIGILAW 286 (GUJ)

Sanjay Karmanbhai Dodiya v. State of Gujarat

2025-03-18

A.S.SUPEHIA, NISHA M.THAKORE

body2025
JUDGMENT : (A.S. SUPEHIA, J.) 1. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing today. ADMIT. Learned AGP waives service of notice of admission. 2. The present appeal emanates from the judgement and order dated 20.09.2024 passed in the captioned writ petition, whereby the learned Single Judge has dismissed the writ petition filed by the appellants-original petitioners challenging their termination from the contractual appointment. BRIEF FACTS : 3. The facts, as recorded by the learned Single Judge, are not in dispute. The same are as under: 3.1. All the appellants-original petitioners were appointed on contractual basis under the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) floated under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 under the Rural Development Department, State of Gujarat. The details of their appointments are as under: (a) The appellant No.1 was appointed as Deputy District Programme Coordinator (DDPC) by order dated 05/06.03.2010; (b) The appellant No.2 was appointed as an Account Manager by order dated 26.03.2012; and (c) The appellant No.3 was appointed as a Technical Assistant by order dated 11.11.2009. 4. During course of their employment, a communication dated 07.06.2016 was issued by respondent No.3, under which all the appellants along with one Mr.U.J.Rao, were directed to make urgent inquiry for the work undertaken under the MGNREGA Scheme at Patan and Veraval Talukas of District Gir Somnath. In the communication of respondent No.3 dated 07.06.2016, Mr.U.J.Rao, Civil Supervisor (Additional Assistant Engineer), Rural Development Department, Gandhinagar, has been referred as a Team Leader and all three appellants as members. 5. Accordingly, all the appellants, including the Team Leader Mr.Rao carried out the inspection and prepared a report dated 24.06.2016 and submitted to the Respondent No.3. In the report dated 24.06.2016, a categorical finding was recorded relating to irregularities done in the construction work. 6. On the basis of the said report, The Director, District Rural Development Agency, District Gir Somnath and Veraval vide communication dated 15.09.2016, informed the Police Officer, Sutrapada Police Station to register an FIR against the employees mentioned therein, who were responsible for committing irregularities in construction. 7. Accordingly, an FIR being C.R.No. I-82 of 2016 dated 16.09.2016 was registered before Sutrapada Police Station for the offences punishable under sections 406, 420, 409 and 114 of the Indian Penal Code, 1860 (IPC) against 9 persons. 8. 7. Accordingly, an FIR being C.R.No. I-82 of 2016 dated 16.09.2016 was registered before Sutrapada Police Station for the offences punishable under sections 406, 420, 409 and 114 of the Indian Penal Code, 1860 (IPC) against 9 persons. 8. Pursuant to the registration of the FIR, the Investigating Officer recorded the statements of all the team members comprised of the present appellants and Mr.Rao. The police, after preliminary investigation, filed ‘C’ summary report under Section 173 of the Code of Criminal Procedure, 1973 dated 26.06.2017, before learned Judicial Magistrate, First Class, Sutrapada. Learned JMFC, vide order dated 06.03.2019, rejected “C” summary report. Learned JMFC, while rejecting the ‘Ç’ Summary Report, issued process against the accused, and also simultaneously directed the Director to undertake legal action against the team members and produce a report within 90 days. 9. Pursuant to the aforesaid directions issued by learned JMFC, show cause notices dated 09.07.2019 were issued to all three appellants by respondent No.4 seeking explanation in relation to their contradictory statements recorded in their inspection report dated 24.06.2016 and statements made before the Investigating Officer. In case of co-delinquent, Mr.U.J.Rao, who was a regular employee, a show- cause notice dated 21.06.2019 was issued by the respondent No.3. 10. The appellants filed their respective replies. Thereafter, the respondent No.2 passed an order dated 08.09.2021, discontinuing their contractual employment. 11. It is pertinent to note that the contractual employees, against whom, the aforesaid FIR was registered, and their services were terminated, approached this Court by filing writ petitions being Special Civil Application Nos.15053 of 2019 and 15054 of 2019, assailing their stigmatic termination, which were allowed with a liberty reserved in favour of the State to hold regular departmental inquiry. 12. Taking a cue from the orders passed by this Court in the case of other contractual employees, the respondent-authority reinstated the petitioners in service by the orders dated 29.01.2022 till 07.03.2022 for the purpose of holding a regular departmental inquiry. 13. Upon reinstatement, the appellants were issued a charge memo dated 21.01.2022, and an Inquiry Officer was appointed to hold the departmental inquiry. After holding the same, the appellants were terminated from service vide order dated 13.07.2022, whereas the regular employee - Mr.Rao was imposed a minor penalty. SUBMISSIONS ON BEHALF OF THE APPELLANTS : 14. 13. Upon reinstatement, the appellants were issued a charge memo dated 21.01.2022, and an Inquiry Officer was appointed to hold the departmental inquiry. After holding the same, the appellants were terminated from service vide order dated 13.07.2022, whereas the regular employee - Mr.Rao was imposed a minor penalty. SUBMISSIONS ON BEHALF OF THE APPELLANTS : 14. At the outset, learned advocate Mr.Kakadia appearing for the appellants, has pointed out the charge-sheet dated 29.01.2022, which has been issued to 4 (four) delinquents. It is submitted that one of the delinquents is Mr.U.J.Rao, who was the Team Leader and Civil Supervisor of the Rural Development Commissioner Office, Gandhinagar, has been imposed minor punishment of stoppage of one increment, whereas the present appellants have been discontinued from their employment. He has also referred to the findings of the Inquiry Officer and has submitted that the Inquiry Officer has found nothing against the appellants and despite the same, by the impugned order dated 13.07.2022 passed by the Additional Commissioner, their services are discontinued. Thus, it is submitted that the judgement and order passed by the learned Single Judge may be quashed and set aside as the learned Single Judge has failed to appreciate the undisputed facts in correct perspective. SUBMISSIONS ON BEHALF OF THE RESPONDENTS : 15. In response, learned AGP Ms.Dhruve appearing for the respondent authority has submitted that all the delinquents were subjected to departmental proceedings in view of the directions issued by learned JMFC, and they were issued charge-sheet, as they had made contrary statements in the inspection report and before the Investigating Officer, which led to filing of “C” Summary Report. Thus, she has submitted that all the delinquents mentioned therein were found guilty of misconduct. She has submitted that since the Team Leader was a regular employee, and his misconduct is governed by the provisions of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, he was imposed a minor penalty, whereas the appellants, who were the contractual employees, were terminated from their service. She has also referred to the findings of the learned Single Judge incorporating Condition No.12 of the appointment orders of the appellants and has submitted that since such condition stipulates that they can be discontinued from service, without issuance of notice in case their service is found unsatisfactory or on the ground of misconduct. She has also referred to the findings of the learned Single Judge incorporating Condition No.12 of the appointment orders of the appellants and has submitted that since such condition stipulates that they can be discontinued from service, without issuance of notice in case their service is found unsatisfactory or on the ground of misconduct. She has thus, urged that the present appeal may not be entertained. ANALYSIS AND OPINION : 16. The genesis of the entire episode is the inspection report dated 24.06.2016 prepared by the team comprising of the present appellants and Mr.U.J.Rao, who was the Team Leader and Civil Supervisor, which was entrusted to carry out spot inspection of the construction of a wall at Sutrapada Gram Panchayat of District Gir Somnath, and Sundarpara and Hasnavadar Gram Panchayats of Veraval Talukas. In view of the report of the appellants, an FIR was registered against the accused-employees on 16.09.2016 being C.R.No. I- 82 of 2016 before Sutrapada Police Station for the offences punishable under sections 406, 420, 409 and 114 of the IPC. Thereafter, the Investigating officer recorded the statements of all the team members. In the statement recorded by the Investigating Officer on 26.04.2017, the appellants have categorically stated that though in their inspection report dated 24.06.2016, they have mentioned the irregularity in construction relating to labour work, they have not alleged any corruption or financial fraud. On the basis of the said statement, the Investigating officer filed ‘C’ Summary report, which was rejected by learned JMFC. 17. The disciplinary proceeding against the team members was initiated in view of the direction issued by the learned JMFC in the order dated 06.03.2019, whereby learned JMFC, while rejecting the “C” Summary Report filed under Section 173 of Code of Criminal Procedure, 1973 (Cr.P.C.) dated 26.06.2017, directed for registration of criminal case against the persons involved in the offence and simultaneously directed the Director to hold legal proceedings against the team members (the appellants & Mr.Rao, Team Leader), and submit a report within a period of 90 days. Accordingly, the show-cause notices dated 09.07.2019 were issued to the appellants and the Team Leader, Mr.U.J.Rao and ultimately, the disciplinary proceedings were held. As narrated hereinabove, during the intervening period, they were terminated and also reinstated, and thereafter subjected to the disciplinary proceedings. 18. Accordingly, the show-cause notices dated 09.07.2019 were issued to the appellants and the Team Leader, Mr.U.J.Rao and ultimately, the disciplinary proceedings were held. As narrated hereinabove, during the intervening period, they were terminated and also reinstated, and thereafter subjected to the disciplinary proceedings. 18. The charge memo dated 29.01.2022 has been issued to the appellants inter alia alleging that by making contrary statements in the inspection report and criminal investigation, the appellants have tied to mislead the police investigation, and thus, they have been negligent in their duties. At this stage, we may incorporate the findings of the Inquiry Officer Report, wherein the Inquiry Officer has categorically held that no financial irregularity has been found and there is no evidence with regard to any corruption committed by the accused of the criminal case. The relevant part of the report is translated and incorporated hereinbelow: “… … ...Perusing the Inquiry Report, it is not stated therein that the delinquents have abetted someone or caused any loss to the State during the inquiry. The report produced appears to be the same as was observed at the site and the police complaint was registered on that basis only. xxx xxx xxx Perusing the case-brief of the prosecution as produced before me, i.e. the Departmental Inquiry Office, by the Representing Officer and the evidence corroborating their defense produced by the delinquents, the delinquents have not made any statement, either in the inquiry report or in their statements before the police, that any corruption has been committed. However, in their statement before the police, it has been stated that no embezzlement or corruption has been committed in the work of flood-resistance wall and not any direct or indirect involvement of any employee is, prima facie, found during our site inspection. Considering these two statements, contradiction is clearly evident. Not other contradiction is established from the records. In view of the evidence produced by the delinquents, the inquiry does not appear to have been misled on the basis of the inquiry conducted by them and statements given by them. It is established from the records that, even in the inquiry, the term ‘district’ has been used instead of ‘Taluka’ while recording the complaint. There is no mention, about corruption having been committed, either in the statement given by the Delinquent before the police or in the inquiry. It is established from the records that, even in the inquiry, the term ‘district’ has been used instead of ‘Taluka’ while recording the complaint. There is no mention, about corruption having been committed, either in the statement given by the Delinquent before the police or in the inquiry. There is no mention, about financial irregularities committed by the delinquents, either in the Inquiry Report or in the statement before the police. xxx xxx xxx “ 19. Thus, the Inquiry Officer has not found the appellants guilty of making contradictory statement relating to the financial irregularity or corruption in the construction. The Inquiry officer in his final conclusion has found contradiction, (which in fact is not a contradiction) to the effect that in the Inspection Report, the appellants did not mention about the corruption or financial fraud, however, before the Police, they have denied the factum of corruption. However, concurrently it is opined that the appellants have not mentioned about the financial irregularities in their Inquiry/ Inspection Report or in the statement before the Police. 20. At this stage, we may refer to the impugned order dated 13.07.2022 passed by the Additional Commissioner, whereby on the basis of the findings of the Inquiry Officer Report dated 09.06.2022, it is recorded that the charge against the delinquents has been found to be partly proved and hence, they are required to be terminated from service, after office hours. The impugned order dated 13.07.2022 does not in any manner, suggests that the Additional Commissioner has discussed the findings and recorded the facts as well as contentions raised by the appellants in their defence. The Additional Commissioner in a cryptic manner has only recorded that the Inquiry Officer had found the charges partly proved against the delinquents and hence, the appellants, who were working on contractual basis, are required to be terminated from service, whereas the Team Leader, who was leading the appellants, has been imposed minor punishment and hence, by the impugned action of the respondent authorities, the Team Leader, who was a regular employee, was retained in service by imposing minor punishment, whereas the appellants, who were the contractual employees, were terminated from service. 21. It is also essential to mention that the appellants and similarly situated contractual employees, who are engaged in MGNREGA Scheme had filed various writ petitions being Special Civil Application no.13145 of 2014 and allied matters seeking regularization. 21. It is also essential to mention that the appellants and similarly situated contractual employees, who are engaged in MGNREGA Scheme had filed various writ petitions being Special Civil Application no.13145 of 2014 and allied matters seeking regularization. By the judgement and order dated 01.07.2016, the writ petitions were partly allowed by directing the State to continue such contractual employees till continuation of the Scheme. Letters Patent Appeal No.983 of 2017 was dismissed by the Coordinate Bench. Thus, this is a very vital aspect which cannot be ignored while deciding the case of the appellants. They are ordered to be continued till the existence of the Scheme, hence their contractual appointment is coterminous with the Scheme. Thus, though they may not have acquired the status at par with the co-delinquent - Mr.Rao (a regular employee), who has been imposed a minor penalty, the appellants have acquired the right to be continued till the existence of scheme. The misconduct of the co- delinquent, Mr.Rao is governed by the provisions of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971, hence he is imposed minor punishment of withholding of increment. Curiously, in case of all four delinquents (the team), the disciplinary proceedings are held in the same manner under the aforesaid Rules. It is true that in case of the appellants, the State cannot impose punishment of stoppage of increments or any punishment specified under Rule 6 of the Rules, since the appellants are contractual employees, but the loss of monetary benefit in comparison to the appellants will be negligible. We are also conscious of the fact, that the service of the appellants is governed by the terms and conditions of the contract, and in case any misconduct is proved, they can be discontinued from service. They can also be discontinued in case their work performance is found unsatisfactory. But, in cases of misconduct, where regular disciplinary proceedings are held, then the disciplinary authority is required to examine the defence of the contractual employee, the findings of the Inquiry Officer, the gravity of misconduct or lapses before terminating service of those contractual employees whose contract period is extended beyond the initial contract, and the department is in need of employees for implementation or execution of its Scheme or work requirement. 22. The learned Single Judge has failed to evaluate the overall facts of the case in correct perspective. 23. 22. The learned Single Judge has failed to evaluate the overall facts of the case in correct perspective. 23. We may also refer to the contents of the affidavit dated 10.03.2025 filed by respondent Nos.2 and 3, wherein it is mentioned that the post, on which the appellant No.2 was serving, is already abolished and it is also noticed by us that he has reached the age of superannuation on 14.07.2022. Thus, there is no question of reinstating him in wake of the fact that the post has been abolished, on which the appellant No.2 was serving and he has reached the age of superannuation. We have also noticed that the appellant No.2 was terminated on 13.07.2022 and he has reached the age of superannuation on next day i.e, 14.07.2022, hence no further direction can be issued in his case. 24. Under the circumstances, the respondents are directed to reinstate the appellant Nos.1 and 3 in service on the same terms and conditions of their contractual employment within a period of 06 (six) weeks from the date of receipt of writ of this order. 25. The impugned judgement and order passed by the learned Single Judge and the orders of termination of the appellants are hereby quashed and set aside. 26. The present appeal stands allowed. Since the main matter is allowed, the connected civil application for stay stands disposed of.