Ashutosh J. Shastri, J. - We have heard Ms.Manisha Lavkumar Shah, learned Government Pleader assisted by Shri D.M.Devnani, learned Assistant Government Pleader for the State appellant in both the appeals, Shri Yatin Oza, learned Senior Counsel assisted by Shri Gaurav Mehta, learned counsel for respondent No.1 in Letters Patent Appeal No.1596 of 2019 and Shri Shalin Mehta, learned Senior Counsel assisted by Shri Jit Patel, learned counsel for respondent No.1 in Letters Patent Appeal No.1597 of 2019.
2. Both these Letters Patent Appeals under Clause 15 of the Letters Patent arise out of the judgment dated 8.5.2019 and 7.5.2019 delivered by the learned Single Judge in respective petitions. But, since common question of law and facts, in substance, has arisen, upon request of learned counsels appearing for the respective parties, both the appeals are taken up for hearing and disposed off by the present common order.
3. So far as Letters Patent Appeal No.1596 of 2019 is concerned, it arises out of a judgment of the learned Single Judge dated 8.5.2019 in Special Civil Application No.4439 of 2017. Background facts are that the original petitioner, who is the respondent No.1 herein, was appointed on 22.4.2015 as Assistant Motor Vehicle Inspector (Class-III), on a sanctioned post through Gujarat Public Service Commission. However, the appointment was made for a period of 5 years on contract basis vide appointment letter dated 17.5.2013 at a monthly fixed salary of Rs.10,000/-. The appointment was subject to the outcome of a litigation pending before the Hon'ble Apex Court as mentioned in the appointment order itself dated 17.5.2013. While the respondent No.1- original petitioner was on duty on 10.6.2014 from 8.00 to 10.30 p.m. at Amirgadh Check Post, a First Information Report, being C.R. No.3/2014 came to be lodged against respondent No.1 of this appeal alleging that when he went for a small nap for about two hours in the restroom, which is about 200 meters away from the check-post by assigning his work to others, Anti Corruption Bureau (ACB) executed a decoy trap on the weigh-bridge of Amirgadh check post. In the said trap, the officer of ACB recovered Rs.39,460/- from one file lying on the Computer Operator's table, whereas an amount of Rs.5,56,105/- came to be recovered from one Mensi Muljibhai Ahir. According to original petitioner, by presuming that this cash amount was related to the alleged corrupt practice, a case is falsely made out which resulted into initiation of proceedings against the respondent No.1 by issuing show cause notice dated 22.7.2014. The case of the respondent No.1- original petitioner is that as he was sleeping in the rest room, which is about 200 meters away from the check post, he was not responsible for the alleged recovery of amount. Respondent No.1 was originally served with the show cause notice and having not been satisfied with the explanation, the Commissioner of Transport concluded that the respondent No.1 has committed misconduct and accordingly, an order of termination came to be passed against him on 22.4.2015 as stipulated in the letter of appointment dated 17.5.2013, after granting an opportunity of hearing as per the terms of the appointment. The respondent No.1 was therefore constrained to challenge the said order by way of an appeal before the Appellate Authority but the appeal came to be dismissed, vide order dated 4.6.2016. Aggrieved by the same, the respondent No.1 approached this Court by way of the aforesaid writ petition, which was allowed. Aggrieved by the same, present Letters Patent Appeals have been filed by the State of Gujarat.
4. So far as Letters Patent Appeal No.1597 of 2019 is concerned, the respondent- original petitioner was also appointed as Assistant Motor Vehicle Inspector (Class-III) on 17.5.2013 through competitive examination conducted by Gujarat Public Service Commission (GPSC) and was initially posted at RTO, Vadodara from 27.5.2013. Subsequently, the respondent was transferred to RTO, Shamlaji, District Aravalli w.e.f. 8.8.2014 and since then, the respondent was performing his duties on the said check post. On 18.9.2015, when the respondent was on duty at RTO check post, Shamlaji from 00 to 8.00 hrs. on the route from Rajasthan to Gujarat, 3 Data Entry Operators of GTPL Company and 4 out of 5 Security Guards of GISFS were present. Security Guards - Parmar Jasubhai and Damor Babubhai were allotted the work of collecting the documents of vehicles which are liable to pay fine. Security Guard - Zala Arjunbhai was alloted the work of traffic handling whereas Security Guard - Mesariya Dineshbhai was asked to stand on National Highway to see that no truck passes through highway without checking. It is the case of the respondent that two Operators, namely Chauhan Dharmendrabhai and Chauhan Kalusinh were handed over the charge to undertake data entry of the vehicles and other operator Mr. Gopalsinh was kept as Reliever. On the same day, at 2.30 hrs., as there was an accident, traffic was jammed on the highway and hence the traffic became very low. At around 3.45 hrs., when there was no traffic and as the respondent was having stomach problem, he went to toilet by conveying to the security guard that if any vehicle is liable to pay fine, then only collect the documents and the vehicle shall be stopped in the parking. On that day, ACB raid was carried out, in which Dineshbhai Mesariya is said to have taken an amount of Rs.2,000/- as illegal gratification, for which the complaint was registered with ACB Police Station, Modasa, Aravalli against him and other persons. On account of this incident, the respondent had to remain in judicial custody in Modasa sub-jail, Aravalli from 21.9.2015 to 29.9.2015. On 29.9.2015, the respondent was released on bail and as such, on 1.10.2015, he made an application to In-charge RTO check post, Shamlaji to allow him to resume the duty. Simultaneously, representation was also sent on 5.10.2015 to the original respondent No.2. The case of the respondent herein in this appeal further indicates that the original respondent No.3 authority has sought an information from the original respondent No.2 as to whether the respondent- petitioner should be allowed to resume the duty, but the original respondent No.1 was of the opinion that the original petitioner may not be allowed to resume the duty since the issue about his continuance was pending before the Authority. On 19.11.2015, a detailed representation was made by the respondent herein which was served on 26.11.2015. But, the present respondent received a show cause notice from the original respondent No.2 asking the present respondent to tender written clarification within 30 days from the date of receipt of the notice. According to the respondent, he received the notice on 19.1.2016 at about 8.00 p.m. The respondent gave a detailed reply pursuant to the show cause notice dated 5.1.2016 and tendered explanation. Thereafter, another show cause notice dated 23.3.2016 was received by the respondent on 1.4.2016, asking him to remain present for personal hearing on 6.4.2016. The respondent sought 15 days time and remained present on 25.4.2016. On the date given by the authority, hearing was conducted, written reply was tendered, but charge-sheet in the criminal complaint was filed against the respondent on 30.3.2017. It is only when the charge-sheet came to be filed against the respondent in criminal case that the respondent came to know about the fact of termination letter dated 29.7.2016. Against the said order of termination, an appeal was filed before the Appellate Authority, which is stated to have been pending as on 25.5.2017. Since no decision is taken, the original petitioner - respondent herein approached this Court by way of a petition under Article 226 of the Constitution of India, challenging the validity of the order dated 29.7.2016. After hearing at length, this petition has been allowed vide order dated 7.5.2019 which is made the subject matter of present appeal.
8. During the course of hearing of both these appeals, on behalf of the State Authority, Ms.Manisha Lavkumar Shah, learned Government Pleader, has vehemently contended that these respective respondents were undisputedly appointed purely on a contractual basis for a period of 5 years on a fixed salary and, therefore, cannot be equated with the employees, who are regularly appointed on the post. It has been submitted that in a trap which was carried out at Amirgadh Check Post, it has been categorically found that these respondents have aided and abetted the commission of crime which has resulted into filing of First Information Report before the Palanpur Police Station under the provisions of the Prevention of Corruption Act. Since there is ample material found against the respondents with regard to their involvement, the authority had to initiate appropriate step against the respondent as the said episode took place within a very brief period of their contractual service.
5.
5.1 Ms.Manisha Lavkumar Shah, learned Government Pleader, has further vehemently contended that while discontinuing their employment, adequate opportunities have been extended to them and hence, the action cannot be said to be in violation of principles of natural justice. It has been contended further that in a criminal case, after thorough investigation, even the chargesheet has also been submitted prima facie finding out a case against the respondents and the said case is pending. It has been submitted that the employment on which the respondents were engaged, was purely on contractual basis and the terms of appointment were clearly indicating the manner in which the respondents are to be discontinued. Apart from this, even these respondents have assigned their duties to their subordinate staff and have not acted with full responsibility.
5.2 To substantiate the above contention, learned Government Pleader has invited the attention to the office order dated 17.5.2013 with respect to one employee, namely, Shri Chetan Jayantilal Rajgor and similar order with respect to another respondent and has pointed out that the terms of employment explicitly make it clear that contract employees are not subjected to any regular departmental inquiry contemplated under the separate Rules meant for the regularly appointed confirmed employee. It has been submitted that in the office order it has been specifically observed in Paras.3 and 4 reflecting on Page-30 in compliance of Letter Patent Appeal No.1596 of 2019 that their appointment is purely on contractual basis at a fixed monthly salary for a period of 5 years and also subject to pending SLP before the Apex Court. With open eyes, these employees have accepted terms of their appointment and as such, now they cannot ask for compliance of the Rules which are otherwise meant for regular confirmed employees.
5.3 It has further been pointed out that in Para.9 of the appointment order, it has been specifically observed that the terms of the appointment would be applicable to them which are specifically observed in the Government Resolution dated 4.6.2009 which is already attached with respective appointment letters. It has been further contended that while abiding by the terms of the appointment, a specific undertaking was also given by these respondents and as such, their services are bound by the terms of the resolution. It has been pointed out that Condition Nos.2, 5, 7, 9 and 10 are also to be taken note of and these terms are specifically acknowledged by these respondents to be abided by and are undisputedly applicable to them. Condition Nos.12 and 13 also sufficiently make it clear about the status of their employment.
5.4 Learned Government Pleader has pinpointed specifically the Condition No.13(3) which clarifies that the Rules which are applicable to Government employees will be made applicable to them only after they are given regular appointment on completion of the tenure. Condition No.14 also clearly spells out that in case of misconduct as well, as a part of principles of natural justice, one month's notice or the pay in lieu thereof would suffice to put an end to the contractual appointment.
5.5 Ms.Manisha Lavkumar Shah, learned Government Pleader, then submitted that the show cause notice was given by the Commissioner of Transport, State of Gujarat on 22.7.2014 in case of one Chetan Jayantilal Rajgor, one of the respondents and in similar way, it was issued in respect of other employee. The show cause notice has specifically pointed out. as to why their services shall not be discontinued in terms of Government Resolution dated 4.6.2009 which is applicable to their case. The show cause notice has been served upon both the employees and in response thereto, the replies have been submitted by these two employees and after considering their detailed replies, the Authority has even thought it fit to give personal hearing and complied with principles of natural justice. It is only after such detailed compliance, a decision is taken by the Authority to put an end to the contractual employment and as such, the action cannot be said to be de-hors the principles of natural justice. In terms of their appointment, according to learned Government Pleader, they are estopped from contending that they are required to be dealt with as if they are confirmed Government employees.
5.6 Ms.Manisha Lavkumar Shah, learned Government Pleader, has further contended vehemently that full-fledged departmental inquiry is not to be conducted in a contractual employment where the terms are governed by the different resolution. According to learned Government Pleader, the terms of the employment cannot be substituted or tinkered with in extraordinary jurisdiction of this Court. The learned Single Judge has committed a gross error in construing the contractual employment in a different manner and equated with the regular employment and thus, has observed that since full-fledged inquiry has not been conducted, the action is not just and proper.
5.7 To strengthen the submission, learned Government Pleader has drawn our attention to several documents in addition to the show cause notices and the relevant statements of the persons connected with the incident in question and after referring to those statements and the material, ultimately it has been suggested that this is not a fit case in which full scale departmental inquiry will have to be conducted when they are under the contract of employment on a fixed salary. It has been submitted that even the appointment itself is made subject to outcome of the SLP before the Apex Court and so long as that decision is not taken, these respondents cannot claim anything beyond their terms of employment which have been accepted with open eyes. When there is sufficient compliance of principles of natural justice, the termination reflects no perversity or arbitrariness in exercise of power in dealing with the respondents and when there is sufficient material about the involvement of the respondents, there is hardly any case made out by the respondents to seek the relief which is otherwise not permissible. The relevant Rules have been observed clearly by the Authority and as such, no case is made out by the original petitioners. As a result of this, the error which has been committed by the learned Single Judge deserves to be corrected by quashing and setting aside the impugned orders. It has further been submitted that the judgments which have been relied upon are on a different contextual background of facts and hence, cannot be applied as a straitjacket formula. These employees i.e. respondents cannot be equated with the regular Government employees so long as they are employed on contract basis and, therefore, there is hardly any necessity of conducting a regular full scale departmental inquiry. Resultantly, the appeals are requested to be allowed by quashing and setting aside impugned orders passed by the learned Single Judge and dismiss the writ petitions.
6. To meet with the stand taken by State - Appellant, initially Shri Yatin Oza, learned Senior Counsel, assisted by Shri Gaurav Mehta, learned counsel for respondent No.1, has vehemently contended that there is no error committed by the learned Single Judge in passing the orders. On the contrary, it has been submitted that whenever any action is based upon a misconduct, a detailed full scale inquiry will have to be undertaken while taking action even if an employee is on a contractual basis. Learned Senior Counsel has reiterated that this is nothing but a free hand and a licence is given to the Authority to sack the contractual appointment at any point of time at the sweet will of the Authority, if such powers are allowed to be executed. According to Shri Oza, this contractual employment itself is an exploitation on the part of State Authority and as such, no error is committed by the learned Single Judge.
6.1 Shri Yatin Oza, learned Senior Counsel has further submitted that these respondents are appointed by way of regular recruitment mode on the posts which were vacant and sanctioned and as such, simply because they are appointed on a fixed salary on the contract basis, they cannot be branded as mere contractual employees. On the contrary, this contractual appointment itself is de-hors the public policy and no public employment can be given by way of contract and this is nothing but a sheer act on the part of Authority to exploit the respondents. According to Shri Oza, if the recruitment is made under the policy and if that policy is contrary to the relevant Recruitment Rules then, such employment itself is nothing but a dishonest exercise of power by the Authority and as such, simply because these respondents have been employed on contractual basis, they cannot be deprived of the benefit of relevant Rules which are usually made applicable to the Government employees. It has been submitted that it is not the case of the Authority that the respondents are not appointed through the regular mode of employment. Their selection is through the Public Service Commission and regular process. As a result of this, when the Recruitment Rules do not provide such kind of contractual appointment, there is hardly any case made out by the appellant - State Authority to assail the orders.
6.2 Shri Yatin Oza, learned Senior Counsel, has further submitted that here is a case in which there is a clear instance of misconduct serious in nature alleged against the respondents and as such, they cannot be summarily dealt with without conducting any full scale departmental inquiry. On the contrary, there is a mechanism provided under the Gujarat State Civil Services Classification and Recruitment (General) Rules, 1967 to deal with an employee whenever any misconduct is alleged. Here, the action taken is de-hors the Rules. As a result of this, the appeals lack merits and the same deserve to be dismissed.
6.3 According to Shri Yatin Oza, Article 311 of the Constitution of India requires to be appropriately interpreted while dealing with the present issue. As a result of this, since summary inquiry is foreign to constitutional mandate, the discontinuance of the respondents has rightly been dealt with by the learned Single Judge. The reliance which has been placed by the learned Single Judge on the decision delivered by the Apex Court has a clear applicability, which has rightly been appreciated. Several decisions have been relied upon by learned Senior Counsel to strengthen the submissions and has vehemently contended that this is a clear case in which the Authority has arbitrarily dealt with and merely on the basis of inferences, the service tenure has been curtailed as it is violative of Articles 14 and 16 of the Constitution of India. Simply issuance of show cause notice and the examination of explanation in summary form is not recognized in law. Hence, since the foundation of the action is alleged misconduct, full scale departmental inquiry ought to have been conducted. Simply because in the ACB case, a charge-sheet has been submitted, the same would not be a ground for the Authority to deviate from the regular mode of departmental inquiry. According to Shri Oza, there is no distinguishing feature in regular Government employee and the respondents. Noncompliance of the Rules and the procedure related to departmental inquiry are the basis on which the impugned action is not sustainable in the eye of law. The learned Single Judge has rightly appreciated the overall view of the matter and upon thorough examination, has found that the action is not sustainable in the eye of law. Accordingly, there is no error committed which calls for any interference.
6.4 Shri Oza, learned Senior Counsel, in support of his case, has placed reliance upon following decisions:
(1) A decision rendered in Special Civil Application No.10928 of 2014, decided on 29.9.2014.
(2) A decision rendered in Civil Appeal No.18510 of 2017, decided on 13.11.2017.
(3) A decision rendered in Letters Patent Appeal No.1349 of 2015, decided on 22.3.2016.
(4) A decision rendered in Civil Appeal No.10956 of 2016, decided on 14.11.2018.
(5) A decision rendered in Letters Patent Appeal No.189 of 2018, decided on 20.2.2018.
(6) A decision rendered in Letters Patent Appeal No.841 of 2019, decided on 15.4.2019.
7. In addition to this, Shri Shalin Mehta, learned Senior Counsel, assisted by Shri Jit Patel, learned counsel for respondent No.1 in Letters Patent Appeal No.1597 of 2019, has reiterated that these respondents have been recruited through the public advertisement and the process is conducted by Public Service Commission and their selection is based on similar line in which any other regular employee is selected. The only distinguishing feature is that their terms of appointment are sightly different. But that would not deprive these respondents from being treated equally from those regular employees and as such, the Authority was under an obligation to comply with Discipline Rules framed by the Government. Shri Shalin Mehta has further submitted that looking to the regular nature of appointment of these respondents, since the procedure is similar, though they are appointed on a contractual basis, they will have to be treated either as probationers or regular employees, especially while dealing with them on the issue of misconduct. By citing some of the decisions of the Apex Court, a contention is tried to be substantiated. It has been submitted that whenever employees are to be dealt with on account of their alleged misconduct, there is no difference whether they are recruited either under the contractual basis or on the regular recruitment. The scheme of recruitment is framed under the Government Resolution and as such, so long as the final verdict is not delivered by the Apex Court, these employees cannot be singled out. By drawing attention to relevant provisions of the Gujarat Civil Services (Discipline and Appeals) Rules, 1971, Shri Mehta has submitted that Section 1(c) does not make any difference in clarifying the status of employees either as probationer, temporary or other kind of employee. So long as these Rules are operative by way of Government Resolution, no different mode of recruitment can be found out and no Government Resolution can have the effect of truncating the statutory provision. That being so, depriving the respondents from full scale departmental inquiry itself is an arbitrary act on the part of Authority which has been rightly dealt with by the learned Single Judge. As a result of this, the appeals lack merits and deserve to be dismissed.
7.1 Shri Shalin Mehta, has reiterated and substantially adopted the submissions made by Shri Yatin Oza, learned Senior Counsel and submitted that since action is de-hors the Rules, not on the touchstone of Articles 14 and 16 of the Constitution of India and also not in close conformity with the principles of natural justice, there is hardly any scope for State Authority to agitate against the order passed by the learned Single Judge.
5. Having heard the learned counsels appearing for the respective parties and having gone through the submissions made by them and in view of analysis of relevant record, we have found that the order passed by the learned Single Judge appears to be exhaustive dealing with not only the status of the present respondents and whether the order passed against them is a stigmatic or not. The reasons reflecting from Para.5 onwards are based upon analysis of the relevant decisions in the context of present background of facts. Hence, we deem it proper to reproduce the same hereby :
"5. The question arises is whether the order was punitive and amounted to stigma which ought to have preceded by a regular inquiry against the petitioner in respect of the allegations levelled against the petitioner employee eventhough petitioner was appointed for a fixed term of five years.
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. 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 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." (Emphasis supplied)(Para 9)
5.4 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 thetrue 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)
5.8 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 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 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.
5.6 In Manishbhai Nayanbhai Mod v. Vadodara Municipal Corporation, (2018) 2 GLR 1636 the petitioner was Assistant Station Officer and was appointed for a fixed term. It was alleged against him that while serving in the Fire Brigade Branch of the Vadodara Municipal Corporation on the post of Assistant Station Officer, petitioner misbehaved with the Telephone Operator and tried to injured Telephone Operator physically. In the impugned order it was mentioned that while being on the sensitive post petitioner acted with negligency and carelessness in discharge of duties. Show-cause notice was issued against the petitioner and his reply was solicited. Thereafter his services put to an end, this Court referred all the aforesaid decisions to come to the conclusion that the order was founded on the allegations of misconduct and that it was punitive in nature casting stigma. It was held that, "Such an action could not have been taken, eventhough 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.".
5.7 Decision in Manishbhai Nayanbhai Mod (supra) was challenged by way of Letters Patent Appeal No.189 of 2018, which came to be dismissed. The Division Bench, confirming the decision in Manishbhai Nayanbhai Mod (supra), observed as under.
"4.1 ... ... ...The above act on part of the competent authority of appellant - Corporation was not only stigmatic, but contrary to law laid down by the Apex Court to which reference is made by learned Single Judge and distinguishing the facts of the present case it was found that termination was punitive. As a necessary corollary, when there is a breach of procedure of instituting full-fledged departmental inquiry, particularly, when termination order referred to following of Gujarat Civil Services [Discipline & Appeal] Rules, 1971, the issuance of show cause notice, receiving reply and then to take final decision to terminate services of an employee was unjust, unreasonable, arbitrary, in breach of the Rules, 1971, violative of principles of natural justice and Article 14 of the Constitution as it would not make any difference whether the employee was appointed temporarily for a fixed term on a fixed salary incorporating various conditions."
1.In another decision in Sandip Ajitsinh Vaghela v. State of Gujarat being Special Civil Application No.12071 of 2018 decided on 26th February, 2019 the same question had arisen where also the petitioner was Junior Clerk employed on temporary basis. In Rahul Aydanbhai Vank v. State of Gujarat being Special Civil Application No.889 of 2018 decided on 05th September, 2018, the petitioner was a contractual employee who was dismissed on the ground of insubordination. The order was found to have been passed on the allegation of misconduct. Same principles were applied and held that services could not have been terminated without undergoing the inquiry.
5.9 The aforesaid decision in Rahul Aydanbhai Vank (supra) was also confirmed in Letters Patent Appeal No.841 of 2019. In the following paragraph, the Letters Patent Bench referred to Manishbhai Nayanbhai Mod (supra) and other decisions to come to the following conclusion to clearly observe that full-scale formal inquiry was requirement of law before the services could have been terminated.
"8. Even decision relied by learned Assistant Government Pleader in the case of Chaitanya Prakash and Another v. H. Omlarappa, (2010) 2 SCC 623 quotes decision in the case of Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 where three tests are enumerated to determine whether in substance an order of termination is punitive or not. We find in the present case all above tests namely a full scale formal inquiry, allegation involving moral turpitude or misconduct and culminating into guilt stands satisfied and therefore we have no hesitation to hold that the learned Single Judge committed no error of fact or law or jurisdiction warranting interference in this appeal under Clause 15 of the Letters Patent."
When the impugned order is considered in light of the above principles and the position of law, it could be well discerned that the the event of filing of F.I.R. against the petitioner was treated as base and it was concluded readily by the respondents that the petitioner had committed misconduct for accepting the bribe. Upon this foundation, the termination was effected. It was on the ground of misconduct and therefore the stigmatic order, which could not have been passed without a full scale inquiry.
6.1 An attempt was made in vain by learned advocate for the respondents that there was compliance of natural justice as the notice was issued to the petitioner. A mere notice would not suffice. No inquiry was held, no charge was framed against the petitioner. Without issuing the charge and without putting the petitioner to knowledge of the allegation which he was to precisely answer, the principles of natural justice could not be said to be followed when the order was founded on misconduct. As held by the Division Bench of this Court in the judgment above, it necessitated a full scale inquiry against the petitioner after issuing show-cause notice and by framing appropriate charge, conducting it in accordance with the natural justice.
6.2 The petitioner was a fixed term employee who was appointed as Assistant Motor Vehicle Inspector, Class-III as per appointment order dated 17th May, 2013 for a period of five years. The impugned order came to be passed on 22nd April, 2015. Therefore, the relief which would ensue for the petitioner shall be upto making up good the total period of five years of employment.
7. As a consequence of above discussion and reasons, the impugned order dated 30th March, 2015 passed by respondent No.2 - Commissioner of Transport is hereby set aside. Respondents are further directed to reinstate the petitioner on original post of Assistant Motor Vehicle Inspector, Class-III with continuity of service and with payment of salary/wages for the interregnum as well as the consequential benefits which may arise, as if the order of termination was never passed. The reinstatement of the petitioner directed as above shall be for the period upto making of the total original period fixed for his employment as per order of appointment. The resultant monetary benefits to be paid to the petitioner within a period of eight weeks from the date of receipt of the present order."
6. In the cognate matter also, almost similar observations are visible and as such, we do not propose to over burden the present order. These observations if to be examined in the background of present fact situation, the same are found to be just and proper. It appears here that the original petitioners were dealt with by issuance of show cause notice with respect to serious charges levelled against them and the notice was given stating as to why in terms of their appointment, they may not be dismissed from the services. Now, this show cause notice appears to have been replied at length by the original petitioners and subsequently, by giving a brief opportunity, without conducting full-scale departmental inquiry, an order of dismissal came to be passed. This procedure which has been adopted by the department against both the original petitioners and undisputedly, no departmental inquiry having been conducted against them, the learned Single Judge, on the basis of relevant proposition of law laid down by the Apex Court, was justified in his view that in the absence of full-scale departmental inquiry, the services of the writ petitioners cannot be terminated in the manner in which it has been put to an end. We see no infirmity in the order passed by the learned Single Judge, particularly having gone through the relevant record made available to us.
7. This view which has been taken by the learned Single Judge, to which we are also in agreement, stands fortified by few decisions by the Division Bench of this Court which have already been relied upon by the learned Single Judge.
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. 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.
10. Yet in further decision which is brought to our notice rendered in Special Civil Application No.10928 of 2014, decided on 29.9.2014, in which also the Division Bench has examined even the status of contractual employment. But since we are not called upon nor concerned with the said issue to be dealt with in the present case, we refrain ourselves from commenting anything and leaving the said issue as it is.
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. Having perused these material, we are not satisfied with the submissions made by learned counsel for the appellants in both these appeals.
15. Additionally, we are also of the opinion that these Letters Patent Appeals have arisen out of the learned Single Judge's decision. The scope of Letters Patent Appeal is well defined by the Apex Court in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company, (2016) LawSuit(SC) 94 . Relevant Para.5 of the said decision is reproduced hereinafter :
"Once the learned Single Judge having seen the records and come to the conclusion that the industry was not functioning after January, 1995, there is no justification in entering a different finding without any further material before the Division Bench. The appellate bench ought to have noticed that the statement of MW-3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief."
Hence, we see no other distinguishing circumstance pointed out by the learned counsel for the appellants and as such, we are in complete agreement with the view taken by the learned Single Judge.
16. However, we make it clear that since the learned Single Judge has clearly observed that present appellants are not precluded from proceeding against the respondents in accordance with law, without disturbing said observations, we dismiss both these Letters Patent Appeals.
18. Consequently, connected Civil Applications also stand dismissed.
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