Gujarat High Court
Bariya Pravinbhai Shanabhai vs State Of Gujarat on 30 January, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/4111/2024 JUDGMENT DATED: 30/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4111 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 12694 of 2022
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 12694 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
=====================================================
Approved for Reporting Yes No
Yes
=====================================================
BARIYA PRAVINBHAI SHANABHAI
Versus
STATE OF GUJARAT & ORS.
=====================================================
Appearance:
JAYDEEP H SINDHI(9585) for the Petitioner(s) No. 1
MR ADITYA DAVDA ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
=====================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 30/01/2025
COMMON ORAL JUDGMENT
1. Heard learned advocate Mr. Jaydeep H. Sindhi
appearing for the petitioners, learned Assistant
Government Pleader Mr. Aditya Davda appearing
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for the respondent No. 1 – State and learned
advocate Mr. H. S. Munshaw appearing for the
respondents No.2 and 3 i.e. District Program
Coordinator and Director.
2. With the consent of learned advocates appearing
for the respective parties, the matter was taken
up finally. Hence, RULE. Learned Assistant
Government Pleader Mr. Aditya Davda and learned
advocate Mr. H. S. Munshaw waives the service of
rule on behalf of the respective respondents.
3. The issue pertains to stigmatic termination as
canvassed by learned advocate Mr. Jaydeep Sindhi
appearing for the petitioners. Learned advocate
Mr. Jaydeep Sindhi drew attention of this Court
that the present petitioner is identically
situated to one Jamal Daudbhai S/o. Iqbalbhai
whose services also was terminated pursuant to
the registration of FIR on the basis of which
the present petitioners’ services were
terminated and as the said Jamal Daudbhai S/o.
Iqbalbhai challenged the order of stigmatic
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termination dated 29.12.2020 by filing Special
Civil Application No. 8606 of 2022 which was
allowed by the Co-ordinate Bench of this Court
vide judgment dated 17.8.2022, the petition is
covered by the above decision. Accordingly, all
these matters were taken up together.
4. The brief fact is that the present petitioners
were employed on contractual employment on
different dates with the District Program Co-
Coordinator Lunawada, Mahisagar and on account
of a financial scam an FIR was registered being
C.R. No. 11187008200903 of 2020 dated 21.12.2020
with Virpur Police Station, District : Mahisagar
and pursuant to the registration of aforesaid
FIR under Sections 408, 409, 420, 120B, 114 of
Indian Penal Code and under Section 66-C, 66-D
of the Information Technology (Amendment) Act,
2008, the petitioner’s contractual appointment
was abruptly terminated and therefore according
to the petitioners, the order of termination
would cast stigma on them and hence, the
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impugned order is bad and deserves to be quashed
and set aside. Learned advocate Mr. Jaydeep
Sindhi drew attention of this Court to the order
passed in respect of co-employee viz. Jamal
Daudbhai S/o. Iqbalbhai.
5. Learned advocate Mr. Jaydeep Sindhi submitted
that the facts of the termination of the present
petitioner and the petitioner of Special Civil
Application No. 8606 of 2022 viz. Jamal Daudbhai
S/o. Iqbalbhai are identical and as the Co-
ordinate Bench has vide judgment dated 17.8.2022
held the termination order in respect of that
petitioner illegal, the issue is covered by that
petition. He, therefore, submitted that the
impugned order is required to be quashed and set
aside.
6. Learned advocate Mr. H. S. Munshaw appearing for
the respondents vehemently opposed the petition
however, he could not point anything from the
material on record to indicate that the said
termination can be said to be non-stigmatic or
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that the present petitioner’s case is not
covered by the decision in case of Jamal
Daudbhai S/o. Iqbalbhai in Special Civil
Application NO. 8606 of 2022. He, therefore,
prayed for dismissal of the petition.
7. I have heard learned advocates appearing for the
respective parties and perused the record. On
perusal of record and more particularly, in view
of the averments made in paragraph No. 2.7
indicates that the case of the present
petitioner is in respect of the same FIR which
was registered against co-employee viz. Jamal
Daudbhai S/o. Iqbalbhai.
8. Further on perusal of order of termination also,
the Court finds that the petitioners’ services
are terminated on the ground of registration of
FIR on account of some financial irregularities
alleged against the accused persons named in the
FIR and as the petitioners are one of the
accused persons named in the FIR, their services
were also terminated.
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9. Now in view of that I have considered the
decision of the Co-ordinate Bench in case of
Jamal Daudbhai S/o. Iqbalbhai passed in Special
Civil Application No.8606 of 2022 wherein the
Co-ordinate Bench of this Court has observed in
paragraph Nos. 8 to 10 which reads thus :-
“8. As rightly submitted by the learned
counsel for the petitioner, the issue
whether a contractual employee can be
terminated without holding a full scale
departmental inquiry has been concluded by
a judgment dated 24.7.2020 passed in LPA
No.1596 of 2019. Relevant paragraph Nos.5
to 18 are reproduced hereunder:
“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 thePage 6 of 21
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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
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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
coverups 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,Page 8 of 21
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even if full benefits as on simple
termination, are given and non-
injurious terminology is used.”
(Emphasis supplied)
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 the true 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
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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
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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
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(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
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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 fullscale 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 reported in
(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 thePage 13 of 21
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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
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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
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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
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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
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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
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& Company, reported in 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 MW3 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
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NEUTRAL CITATION
C/SCA/4111/2024 JUDGMENT DATED: 30/01/2025
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Appeals.
18. Consequently, connected Civil
Applications also stand dismissed.”
9. Keeping the question of law decided by
this Court as aforesaid, the order of
termination dated 29.12.2020 is hereby
quashed and set aside. The petitioner is
directed to be reinstated to the original
post and position on the same terms and
conditions that he was originally
appointed. Since he was a contractual
appointee, he will not be entitled to
arrears for intervening period. However,
it is made clear that the respondents are
not precluded from initiating action
against the petitioner qua the incident in
question and / or termination in
accordance with law.
10. The petition is allowed in above
terms. The petitioner is directed
reinstated within a period of four weeks
from the date of receipt of copy of this
order. Rule is made absolute to that
extent. Direct Service is permitted.””
10. In view of above clear observations made
made by Co-ordinate Bench of this Court and as
the said decision is also in respect of the co-
employee of the present petitioners in respect
of identical same offence/similar offence and
as the Co-ordinate Bench has held that the order
of termination is stigmatic, this order also can
be said to be a stigmatic order and therefore,
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NEUTRAL CITATIONC/SCA/4111/2024 JUDGMENT DATED: 30/01/2025
undefined
the same is required to be quashed and set aside
and is quashed and set aside accordingly.
11. In view of above, the respondents are
directed to reinstate the petitioners on their
original post and position on the same terms and
conditions that they are originally appointed.
Since the petitioners were on a contractual
appointment, they will not be entitled to
arrears for intervening period and the
respondents are not precluded from initiating
action against the petitioners qua the incident
in question on termination in accordance with
law. Further, the petitioner’s reinstatement is
only limited to the remaining period of the
contract and with the aforesaid clarification,
the petition is allowed. Rule made absolute. No
order as to costs.
12. In view of order passed in the main matter
connected civil application also stands disposed
of.
(NIRZAR S. DESAI,J)
PallaviPage 21 of 21
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