Excerpt
The writ petition was filed under Article 226 of the Constitution of India for issuing a writ of mandamus or certiorari or any other writ, direction, order for quashing and setting aside the order dated 17.12.2016 passed by Respondent no.2 with respect to termination of the service of the Petitioner. The termination order was passed without instituting full-scale departmental enquiry and instead followed a brief procedure of providing show-cause notice to the Petitioner in the case of Jitendrakumar Rameshbhai Patel v. State of Gujarat (C/SCA/ 13282/2019).
Facts
The Petitioner was appointed on 29.09.2012 via the regular selection process conducted by Gujarat Public Service Commission in the post of Revenue Clerk. He was appointed on an ad hoc basis for a fixed payment for 5 years. Later on, an FIR was registered at Mehsana ACB Police Station against the Petitioner dated 22.12.2015 for the commission of an offence punishable under Section 7, 12, 13 of Prevention of Corruption Act, 1988 and thereafter the Petitioner was terminated from the services on 17.12.2016 by the Respondent authority.
Petitioner’s Arguments
The counsel submitted before the Court that the Petitioner was issued show-cause notice dated 19.03.2016 for presenting his case as to why he must not be terminated from the service for breach conditions in Gujarat Civil Service Rules, 1971 and Resolution of 2009. The respondent authority conducted no inquiry, no investigation for framing of charges and also provided no intimidation of allegation sought to be framed against him for which he could answer them as per his knowledge. Therefore such cavalier behaviour of Respondent authority can also be clearly proved as a way of not conducting a full-scale departmental inquiry against the Petitioner which advertently violated the principle of natural justice besides the order was passed.
Respondent’s Arguments
The counsel submitted before the Court that the Petitioner resorted to the resolution 2009 with particular condition of the order of appointment nos. 9-13, he was issued a show-cause notice on 19.03.2016 to which he responded on 04.04.2016. The Petitioner was appointed on contractual basis for the period of 5 years and not as a regular employee, thus the Gujarat State Service Rule (Conduct) 1971 is not applicable to the Petitioner but otherwise Resolution 2009 is applicable. Therefore, there was no requirement for respondent authority to hold a departmental inquiry against the Petitioner for the offence. The authority had rightly taken its decision of passing such termination order dated 17.12.2016 on the ground of misconduct under section 7, 12 and 13 of POCA and as such deserved to be upheld in this Court without exercising power under Article 226 of Constitution.
Court’s Observation
The Court observed the status quo of the present case on the bone of contention of termination order of service of an employee even if on the fixed day passed the impugned order violating the principle of natural justice as was discussed in the case of Chetan Rajgor v. State of Gujarat rendered in SCA No.4439 of 2017 in which the Single Judge Bench questioned whether the termination was simpliciter or punitive depended upon the distinction between the motive of the order and foundation of the order which further referred the case of Chandra.
Prakash Shahi v. State of U.P. [(2000) 5 SCC 152], it was held that the Motive was incitement and instigating power which compelled a person to do or not to do something. The act of termination of employee services rested upon the hands of the employer and if the reasons for employee termination was general unsuitability then the act would be upheld in law. If there were serious allegations of misconduct against the employee and thereafter preliminary inquiry was held unknown to his knowledge for diving the truth of the allegation and on such ground, termination was passed. The order regarding other circumstances would be founded on the allegations of misconduct which were to be true in preliminary inquiry.
The Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, it was held that the “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. If the order is punitive in nature then in such cases it is dismissal”.
In the case of Chetan (supra), the Apex Court stated that it is always permitted to the Court before the order was challenged to look beyond the form and ascertain the true character of the order. If the court ascertains that the alleged misconduct was the cause of the order and thereafter such order was not passed then it is not appropriate to say that order of discharge should not afford reasonable opportunity to defend him as provided under Article 311(2). Further, it was a wrong presumption to state that there was only when there is departmental inquiry and termination made thereafter would fall under Article 311(2) of the Constitution.
The real foundation for the order of discharge was the misconduct of the Petitioner, order mentioning the termination of the service by way of punishment and in the absence of which inquiry was held under Article 311(2) such order was liable to be struck down.
Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. [(1999) 2 SCC 21] held that “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. The order itself stated that the inquiry into the conduct was not the motive but was merely a foundation and the allegation of misconduct considered against the employee becomes the foundation of termination of service of temporary servant or probationer, such action would become punitive and it would make the order legally unsound.”
In Rahul Aydanbhai Vank v. State of Gujarat being Special Civil Application No.889 of 2018, in this case, the Petitioner was a contractual employee who was dismissed on the ground of insubordination. Thereafter, an order was passed on the allegation of misconduct. It was held that termination of service cannot be upheld without conducting an inquiry.
Manishbhai Nayanbhai Mod v. Vadodara Municipal Corporation [2018(2) GLR 1636], the Court observed that full-scale departmental inquiry was a requirement of law before the service of an employee could be terminated. Further, in the case of Pavanendra Narayan Verma v.Sanjay Gandhi PGI of Medical Sciences [(2002) 1 SCC 520], three tests were conducted to determine whether termination order is punitive or not, mainly full-scale inquiry, the allegation of moral turpitude or misconduct culminated into satisfying guilt.
The Court in the present case observed that serving notice would not suffice the purpose of termination even without conducting the inquiry, framing charges against the petitioner and no knowledge about the allegation being made against him. Therefore, it can be clearly proven that no principle of natural justice was followed when the termination order was instituted.
Court’s Decision
The Court held that the foundation of allegation rests upon the misconduct of demanding and accepting a bribe of Rs.1000 for which FIR was lodged under section 7, 12, 13 of POCA Act, 1988. The violation of natural justice was derived from not holding any full-scale departmental inquiry. Therefore an impugned order of termination must be set aside and quashed while the Petitioner would be liable for reinstatement for the remaining period of time within four weeks from the date of receipt. Provided that the Petitioner shall not be entitled for any monetary benefit or salary for the intervening period and the Respondent was not restricted from proceeding against the Petitioner for misconduct in accordance with the law.
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