The Court allowed the petition in an administrative law case to set aside orders passed by the Deputy Collector whereby the services of the petitioner came to be terminated against the principles of natural justice, and without giving the petitioner an opportunity to defend himself.
Background to the Case
The petitioner’s appointment was on a contractual basis for five years. An F.I.R. was registered against him at the Anti-Corruption Bureau Police Station, Anand; on whose basis, the termination order came to be passed against the petitioner under Rule 3 of the Gujarat State Service (Conduct) Rules, 1971. It was concluded that he had shown a lack of commitment to his duty and had acted in a wrong manner, which was unbecoming of a Government servant. Considering that it won’t be advisable to continue the petitioner in service, it was ordered that the appointee could be driven out from the service after paying one month’s salary.
It was clear from the said order, that it was passed based on the factum of filing an F.I.R., that the petitioner had committed misconduct. The order was found on the incident of taking bribes. It showed that the order was stigmatic and punitive in nature.
Learned Advocate for the petitioner had submitted that the above order was passed without giving any opportunity to the petitioner to defend himself. He contended that when the order was passed on the basis of misconduct, a regular departmental inquiry must have been conducted. Hence, the authority didn’t act in compliance with the principles of natural justice.
He prayed to reinstate the petitioner on his previous post of Clerk at Collector Office, Criminal Branch, Anand, with continuity of his service and consequential benefits.
Learned Assistant Government Pleader was at his receiving end when confronted with the said aspect. He submitted the case of Sanjay Bhanubhai Makwana v. State of Gujarat, to be considered in this regard.
The Court observed similar issues being adjudicated before which could be referred to, like the case of Sanjay Bhanubhai Makwana. In this case, the bribe was accepted by the petitioner, hence the respondent authority had concluded that the petitioner committed misconduct in view of filing of the F.I.R. The petitioner couldn’t prove his innocence, like in the present case. Consequently, his services were terminated.
A question that arose was whether such an order was punitive. In judging whether the termination was simpliciter or punitive, a distinction was made between the motive of the order and its foundation. In Chandra Prakash Shahi v. State of U. P., the Supreme Court had explained the said concept. If it was the general unsuitability of the employee for the post, the act could be upheld in law. But if there were allegations against an employee of serious misconduct and a termination order had been passed after a preliminary inquiry, then the order would be found on the allegations of his misconduct.
The Supreme Court had further considered its own decisions on a similar aspect, like in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. observed the proposition of law operating in two different ways. In a few cases of temporary servants, if the inquiry undertaken about the very conduct had formed the motive of the termination order, then the termination could not be said to be punitive just because the principles of natural justice had not been complied with. Another case was when the Supreme Court had ruled that if the facts revealed that the allegations of misconduct against the employee became the foundation of termination of his service, such action would become punitive and would thus, the order would become legally unsound.
In Manishbhai Nayanbhai Mod v. Vadodara Municipal Corporation, it was held that an action couldn’t be taken, without giving the petitioner-employee a full-fledged opportunity to defend himself.
When the order was considered in light of the above principles and also the position of law, it could be seen that the event of filing an F.I.R. against the petitioner-employee was treated as the foundation and it was concluded by the respondent authority that he had committed misconduct for accepting a bribe. It was upon this foundation; that his termination was effected.
Considering the above position of law as obtained, the impugned order being stigmatic, having been passed without compliance of principles of natural justice and without holding any preliminary inquiry, was liable to be set aside. Hence, the petition deserved to be allowed.
It was further directed that as the petitioner was a fixed-term employee who joined duties on 19.04.2010, hence his five years term had already expired on 19.04.2015. Therefore, while the impugned order was liable to be set aside, the petitioner won’t be entitled to reinstatement.
As a consequence of the above discussion, the impugned order dated 24.10.20180 passed by Deputy Collector, Anand was hereby set aside and the petition was allowed.
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