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Amitkumar Virambhai Parmar v/s State of Gujarat

    R/S.C.A. No. 5129 of 2020
    Decided On, 28 March 2022
    At, High Court of Gujarat At Ahmedabad
    By, THE HONOURABLE MR. JUSTICE BIREN VAISHNAV
    For the Petitioner: Gunvant R. Thakar (3801) & Bhargavi G. Thakar (5015), Advocates. For the Respondent: R1 & R2, Meet Thakkar, Asst. Government Pleader/PP.


Judgment Text
1. Rule returnable forthwith. Mr. Meet Thakkar, learned AGP waives service of notice of Rule on behalf of Respondents State.

2. By way of this Petition, the Petitioner has challenged the Order of Termination, dated 21.8.2017 passed by Respondent No.2.

3. Facts in brief would indicate that the Petitioner was appointed as Supervisor Instructor, Class-III vide Order, dated 21.11.2011 on a fixed pay of Rs. 9400 per month. By an Order, dated 25.11.2011 issued by Respondent No.2 the Petitioner was appointed as Supervisor Instructor, Class-III in Industrial Training Institute, Chandkheda on the conditions mentioned in the order of appointment. The Petitioner had remained absent on certain occasions and thereafter he was terminated from service by Respondent No.2 vide the impugned Order. Hence the Petition.

4. Mr. G.R. Thakar, learned Advocate appearing for the Petitioner would submit that the Order of Termination, dated 21.8.2017 is stigmatic inasmuch as it enlists three to four allegations based on which the Order of Termination is passed. Reading the order, Mr. Thakar would submit that the case of the Respondents is that the Petitioner without prior approval went on leave for a period of six months for the periods recorded in the Order of Termination. The second allegation is that the Petitioner showed gross negligence in maintaining records of trainees and while the training was in progress, the Petitioner eloped with one Ms. Shivani Ravat for which the father of the girl had filed a Complaint with Chandkheda Police Station. Accordingly the Order of Termination enlists certain misconducts for which departmental inquiry ought to be held.

4.1. Mr. Thakar would further submit that the appointment was made on 25.11.2011 and was for a period of 5 years. Drawing the attention of the Court to the conditions on which the Petitioner was appointed he would submit that the appointment was on a fixed pay of 5 years. Though the appointment was on fixed pay, the termination based on such grounds amounted to stigmatic termination for which inquiry was necessary. In support of his submissions, he would rely on a decision of the Division Bench of this Court rendered in Letters Patent Appeal No.841 of 2019 on 15.4.2019, which was considered extensively by a coordinate Bench of this Court in Special Civil Application No.9142 of 2011 on 8.5.2019. He would draw the Court's attention to the relevant Paragraphs of the Judgment where the Court after discussing the Judgment of the Division Bench held that even if the Employees were fixed term Employees and the termination was on the ground of misconduct, departmental proceedings ought to have been held.

5. Mr. Meet Thakkar, learned AGP would submit that the appointment of the Petitioner initially was for a period of five years on terms and conditions as mentioned in the appointment Order, dated 25.11.2011. A show-cause notice was issued on 23.2.2015 asking the Petitioner to explain certain allegations of irregularity. Reply was filed on 19.5.2015, wherein the Petitioner while admitting lapse had assured the Employer that in future such allegations will not happen. An order of warning was issued on 21.1.2016. Reading the order, Mr. Thakkar would submit that the order also indicates that the period of fixed tenure appointment was extended for a period further six months upto 25.5.2017. What is evident from the conditions of the show-cause notice is that the Petitioner had remained absent without prior approval. Looking to the absence of the Petitioner for over a period of six months, the contractual appointment on fixed pay, which was coming to an end on 25.5.2017 was extended upto 19.10.2017 adding the period of unauthorised absence.

5.1. Mr. Thakkar further submitted that based on a Complaint that the Petitioner had eloped with one Ms. Shivani Ravat and the allegations as stated in the termination order, the services of the Petitioner were put to an end. Reliance was placed on the terms and conditions of the appointment order placed at Page 107 of the reply by Mr. Thakkar, learned AGP, particularly drawing the Court's attention to Clause 13 of the conditions, which obliged the Employer to give one month's notice or pay, when termination has to be brought about on the basis of misconduct of a fixed pay Employee. This was followed as would be shown by learned AGP from the Order of Termination.

6. Considering the facts on hand what is evident is that the Petitioner was initially appointed as a fixed term Employee vide Order, dated 25.11.2011. His term would have otherwise ended in the year 2006. As a result of certain misconducts including that of unauthorised absence, a show-cause notice was issued to the Petitioner on 23.2.2015 to which the Petitioner responded and also gave an undertaking that such lapses would not occur in future. He was let off by passing an order of 21.1.2016 by which the Petitioner was warned. The period of fixed term was extended upto 25.5.2017. Taking into account the absence from service for over six months further extension was granted and the Petitioner's tenure of fixed term appointment was extended upto 19.10.2017. The submission of learned AGP is that since the tenure of fixed term appointment was extended till 19.10.2017, the Order of Termination prior thereto of 21.8.2017 was just and proper, as being in accordance with the terms and conditions of the appointment specifically Clause 13 thereof.

7. The issue whether a fixed term Employee can be terminated in the manner that the present Petitioner was, has been extensively considered by this Court in Special Civil Application No.9142 of 2011 wherein the Court after considering the decisions of the Division Bench held as under:

“7. The kernel of the issue raised in the instant Writ Petition is whether the service of the Petitioner, who was appointed on the fixed pay for a fixed term, can be terminated without holding a departmental inquiry on the ground of misconduct.

8. The Division Bench of this court, while considering the issue of termination of a fixed tenure/salaried Employee on stigmatic ground by issuing a notice, has held that termination of such an Employee, who is appointed even on fixed tenure and on fixed Salary cannot be effected without holding a full-fledged departmental inquiry under the discipline and Appeal rules, if the termination is premised on a misconduct. The Division Bench has held thus:

”Learned Single Judge has discussed the law on the subject viz. 'motive' or foundation of termination of service of an Employee. The above act on the 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."

9. Similarly, in the Judgment, dated 15.4.2019, passed in Letters Patent Appeal No.841 of 2019, while examining the case of termination of the contractual Employee, who was also similarly employed on the same terms and conditions to that of the Petitioner, this Court has observed thus:

"In the above context, the learned Single Judge relied on the decision of this Court in the case of Manishbhai Nayanbhai Mod v. Vadodara Municipal Corporation, dated 30.11.2017 wherein this Court relied on the cases of Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha, 1980 (2) SCC 593, Anoop Jaiswal v. Government of India, 1984 (2) SCC 369, Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd., 1999 (2) SCC 21 and for ready reference we reproduce Paragraph No.5.2 of the Order passed by the learned Single Judge as under:

"5.2. In Manishbhai Nayanbhai Mod (supra), the position of law was discussed, which is highlighted and reproduced as under:

"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.“(Para 9) (Emphasis supplied)

5.3. Having delineated the aforesaid principles, the Apex Court held that the order in the case before it could not be treated as a simple order of retrenchment and that it was an Order passed by way of punishment. It was held that such Order of Dismissal, which was passed without holding a regular departmental inquiry cannot be allowed to be sustained.

5.4. The above statement of law that if the order is punitive and stigmatic in nature, even if the Employee concerned is a temporary Employee or holding the post as on probation, his dismissal or removal would warrant a regular inquiry and full-fledge compliance of Natural Justice, emanaged from the early decision of the Apex Court in Anoop Jaiswal v. Government of India 1984 (2) SCC 369. In that case, the Apex Court held that it is permissible for the Court to go behind the formal Order of Discharge so as to find out the real Cause of Action. In that case, the Appellant was an IPS Officer, undergoing training as a probationer, arrived late by about 22 minutes at the place, even though prior intimation was sent about the time on which, the candidates were required to reach the venue. The incident of delayed reporting was considered to be one by the authorities calling for an inquiry and an explanation was sought for from the Petitioner and all other probationer-trainees, who had arrived late. On the basis of explanation, the Director recommended the Government for discharge of the Appellant from service. The Government passed Order of Discharge on the basis of recommendation of the Director with whom, the only ground prevailing was that the Appellant did not show any sign of repentance. The High Court dismissed the Writ Petition. However, the Supreme Court allowed the Appeal and held that the order was punitive. The Appellant was directed to be reinstated with full benefits.

5.5. 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 &13)

5.6. 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.

5.7. 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 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."

8. Even decision relied by learned Assistant Government Pleader in the case of Chaitanya Prakash and Another (supra) quotes decision in the case of Pavanendra Narayan Verma (supra) 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.

9. When the appointment of the Petitioner had genesis in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967, incorporation of certain terms and conditions contractual in nature pale into insignificance when the termination order is expressly stigmatic as rightly concluded by the learned Single Judge, which required no lifting of veil and therefore the Appeal is bereft of merit."

Thus, the contention raised on behalf of the Respondent No.2, that no detail inquiry as contemplated under the discipline and Appeal rules is required to be held since a show cause notice was issued to the Petitioner, entails negation in light of the law enunciated in the foregoing Judgments.

10. The appointment Order, dated 28.9.2007 reveals that the Petitioner was appointed by exercising the powers under sub-section (5) of Section 227 & Section 274 of the Gujarat Panchayats Act, 1993 after following the regular selection procedure. The appointment of the Petitioner neither can be termed as purely incidental, nor can be compared with those Employees, who are engaged on Contract for completion of a scheme/project or whose appointments are coterminous with the work or duties for which they are employed. After undergoing the regular selection process, the Petitioner has acquired the status of "Government Servant" whose service is governed by the rules framed under Article 309 of the Constitution of India and not by the terms of the Contract. Thus, even if the impugned Order is silent with regard to the provision of the Discipline and Appeal Rules, it has to be construed that the service of the Petitioner is governed by the Gujarat Panchayat (Discipline and Appeal) Rules, 1997, which prescribes a detailed procedure for holding a departmental inquiry for imposing a major penalty on a panchayat Employee. Reliance placed by the learned Advocate Mr. Munshaw on the Judgments of the Supreme Court in the cases of Krishna Kumar Sharma (supra) and Kaushal Kishore Shukla (supra) cannot come to the rescue of the Respondent No.2, since in the cases before the Supreme Court, the termination was premised on the unsatisfactory work of the Employee and not on the misconduct. In the case of Devendra Kumar Jain (supra), the Employee was appointed without approval, and the appointment was not affected because of any misconduct. Reliance placed on the Division Bench Judgment, dated 25.2.2004 is also misconceived and will not apply to the facts of the case, as the service of the Employee was terminated due to registration of a Criminal Complaint.

11. Furthermore, regular departmental inquiry is also necessitated since the Petitioner is entitled to the protection under Article 311(2) of the Constitution of India. The Constitution Bench of the Supreme Court in the case of Champaklal Chimanlal Shah (supra) has held that in cases of temporary Employees and quasi-permanent Employees, who are sought to be terminated on the ground of misconduct, they are entitled to the protection under Article 311(2) of the Constitution of India. The Petitioner, having being appointed, after a regular selection was conferred with a right of being confirmed after a period of completion of five years. Condition no. 19 of the appointment order states that after five years of completion of service, the Petitioner shall be placed in the regular Pay Scale, and she is not required to be further appointed on probation. Mentioning of such condition postulates that the period of probation, which is meant for regular Employees is purged in case of the Petitioner as she is required to undergo satisfactory five years period as a fixed pay Employee. Thus, the Petitioner, who was appointed after a regular selection is entitled to protection under Article 311(2) of the Constitution of India, hence she could not have been terminated without holding a departmental inquiry. The Supreme Court in the case of Champaklal Chimanlal Shah (supra) has prescribed the procedure under Article 311(2), the same is incorporated as under:

"11. Before however we consider the facts of this case, we should like to make certain general observations in connection with Disciplinary proceedings taken against Public Servants. It is well known that Government does not terminate the services of a Public Servant, be he even a temporary Servant, without reason; nor is it usual for Government to reduce a Public Servant in rank without reason even though he may be holding the higher Rank only temporarily. One reason for terminating the services of a temporary Servant may be that the post that he is holding comes to an end. In that case there is nothing further to be said and his services terminate when the post comes to an end. Similarly a Government Servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end. But besides the above, the Government may find it necessary to terminate the services of a temporary Servant if it is not satisfied with his conduct or his suitability for the job and/or his work. The same may apply to the reversion of a Public Servant from a higher post to a lower post where the post is held as a temporary measure. This dissatisfaction with the work and/or conduct of a temporary Servant may arise on Complaint against him. In such cases two courses are open to Government. It may decide to dispense with the services of the servant or revert him to substantive post without any action being taken to punish him for his bad work and/or conduct. Or the government may decide to punish such a Servant for his bad work or misconduct, in which case even though the Servant may be temporary he will have the protection of Article 311(2). But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work. In this preliminary enquiry the explanation of the Government Servant may be taken and documentary and even oral evidence may be considered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why Disciplinary action be not taken against him. An Enquiry Officer (who may be himself in the case where the Appointing Authority is other than the Government) is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and this enquiry is held in accordance with the Principles of Natural Justice. This is what is known as a formal departmental enquiry into the conduct of a Public Servant. In this enquiry evidence both documentary and oral may be led against the public servant concerned and he has a right to cross-examine the Witnesses tendered against him. He has also the right to give documentary and oral evidence in his defence, if he thinks necessary to do so. After the enquiry is over, the Enquiry Officer makes a Report to the Government or the authority having power to take action against the Servant concerned. The government or the authority makes up its mind on the Enquiry Report as to whether the charges have been proved or not and if it holds that some or all the charges have been proved, it determines tentatively the punishment to be inflicted on the Public Servant concerned. It then communicates a copy of the Enquiry Officer's Report and its own conclusion thereon and asks him to show cause why the tentative punishment decided upon be not inflicted upon him. This procedure is required by Article 311(2) of the Constitution in the case of the three major punishments, i.e., dismissal, or removal or reduction in rank. The servant concerned has then an opportunity of showing cause by making representation that the conclusions arrived at the departmental enquiry are incorrect and in any case he punishment proposed to be inflicted is too harsh."

Thus, the Respondent No.2 was required to hold a full-fledged departmental inquiry as envisaged by the Supreme Court before terminating the service of the Petitioner on the ground of alleged misconduct.

12. The Constitution Bench in the case of Moti Ram Deka (supra), has observed thus:

“......There is thus no doubt that Article 309 has to be read subject to Articles 310 & 311 and Article 310 has to be read subject to Article 311. It is significant that the provisions contained in Article 311 are not subject to any other provision of the Constitution. Within the field covered by them they are absolute and paramount. What then is the effect of the provisions contained in Article 311(2)? Article 311(2) reads thus:”No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.“We are not concerned with the cases covered by the Proviso to this article in the present Appeals. It may be taken to be settled by the decisions of this Court that since Article 311 makes no distinction between permanent and temporary posts, its protection must be held to extend to all Government Servants holding permanent or temporary posts or officiating in any of them. The protection afforded by Article 311(2) is limited to the imposition of three major penalties contemplated by the service Rules, viz., Dismissal, removal or reduction in rank. It is true that the consequences of Dismissal are more serious than those of removal and in that sense, there is a technical distinction between the two; but in the context, dismissal, removal and reduction in Rank, which are specified by Article 311(2) represent actions taken by way of penalty. In regard to temporary Servants, or servants on probation, every case of termination of service may not amount to removal. In cases falling under these categories, the terms of Contract or service rules may provide for the termination of the services on notice of a specified period, or on payment of Salary for the said period, and if in exercise of the power thus conferred on the Employer, the services of a temporary or probationary Servant are terminated, it may not necessarily amount to removal. In every such case, Courts examine the substance of the matter, and if it is shown that the termination of services is no more than discharge simpliciter effected by virtue of the Contract or the relevant rules, Article 311(2) may not be applicable to such a case. If, however, the termination of a temporary Servant's services in substance represents a penalty imposed on him or punitive action taken against him, then such termination would amount to removal and Article 311(2) would be attracted. Similar would be the position in regard to the reduction in rank of an officiating Servant. This aspect of the matter has been considered by this Court in several recent decisions. This branch of the law must, therefore, be taken to be well settled.”

The Constitution Bench has specifically held that the Article 309 of the Constitution of India have to be read subject to Articles 310 & 311 of the Constitution of India. It is further held that the termination in terms of Contract of service may not amount to removal. In cases falling under the category of temporary or probation, the terms of Contract or service Rules may provide for the termination of the services on notice of a specified period, or on payment of salary for the said period, and if in exercise of the power thus conferred on the Employer, the services of a temporary or probationary Servant are terminated, it may not necessarily amount to removal, and if it is shown that the termination of services is no more than discharge simpliciter effected by virtue of the Contract or the relevant Rules, Article 311(2) of the Constitution of India may not be applicable to such a case. If, however, the termination of a temporary Servant's services in substance represents a penalty imposed on him or punitive action taken against him, then such termination would amount to removal and Article 311(2) of the Constitution of India would be attracted. Thus, though the service of the Petitioner can be said to have been governed by the terms of Contract, if by a punitive action she has been terminated, then such termination would amount to removal and Article 311(2) of the Constitution of India would be attracted. As a sequel, the procedure prescribed under the disciplinary Rules framed under Article 309 of the Constitution of India is mandatory for imposing any punishment on an Employee.

13. In the present case, indubitably, the Petitioner is terminated from service on the ground of the alleged misconducts. In the affidavit-in-reply, the Respondent No.3 has stated that since various Complaints were received against the Petitioner, the Programme Officer, ICDS Branch, Kheda has examined the matter, and the Anganwadi Workers gave their Written Statements confirming her several irregularities, and the then Programme Officer had put up a detailed note on the file and submitted the same to the District Development Officer, Kheda District Panchayat for appropriate action and on the basis of which, the Respondent No.3 issued a show cause Notice, dated 10/11.6.2010. The Respondent No.3 has placed reliance on such Report, dated 27.4.2010 inquiring into the misconducts of the Petitioner. The same finds reference at serial No.3, in the impugned Order. The Respondent has placed reliance on the same and has observed in the impugned Order that vide Report, dated 27.4.2010 at Reference No.3, the Child Development Officer has found the Petitioner guilty of the misconducts. Admittedly, such Report is not supplied to the Petitioner, and the same is relied upon by the Respondent No.2 for terminating the service of the Petitioner. Thus, issuance of the subsequent show cause Notice, dated 8.7.2010 to the Petitioner becomes a futile exercise, since vide Report, dated 27.4.2010, it has been predetermined that the Petitioner is guilty of the misconduct. Such approach of the Respondent authority is in violation of the Principles of Natural Justice since the Report is prepared behind the back of the Petitioner, wherein several statements of Anganwadi Workers have been recorded, who have deposed against the Petitioner.

14. In both the aforementioned Judgment, the Division Bench has confirmed the Judgment and order of the learned Single Judge setting aside the termination conferring the relief of reinstatement with all consequential benefits and continuity of service as if the Order of Termination was never passed. Thus, the Petitioner is required to be reinstated in service with all consequential benefits. However, a vital issue, which is raised in the present Writ Petition apropos holding of a regular departmental inquiry after the reinstatemen

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t was neither raised before the learned Single Judge nor before the Division Bench. 15. In this context, I may with profit incorporate the observations of the Supreme Court in the case of Punjab Water Supply Sewerage Board v. Ram Sajivan, 2007 (9) SCC 86. The same are thus: "8. When the Order of Termination passed by the Appellant on the ground of misconduct was set aside by the Labour Court, the only course open to it was to initiate a regular departmental proceedings. Once they had terminated the services of the Respondent, during pendency of the Criminal case, which as noticed hereinbefore was set aside resulting in their re-instatement in services, which although did not preclude the Appellant from taking further action against the Respondents, the same was required to be done only in terms of the extant rules i.e. by initiation of a regular departmental proceedings." 16. Similarly, in the case of Kamal Nayan Mishra v. State of Madhya Pradesh, 2010 (2) SCC 169, the Apex Court has held thus: "13. The termination of Appellant without an inquiry or hearing was illegal and invalid. In the normal course, we would have set aside the termination and directed reinstatement with consequential benefits" reserving liberty to the Employer to initiate disciplinary proceedings. But the peculiar facts of this case require us to adopt a slightly difference approach to do complete justice between the parties. We have already pointed out that there are clear indications that the Appellant was bonafide under the impression that he was required to give the particulars sought in column (12) of the form with reference to the date of his appointment. Further, the entire matter relates to an attestation form given in 1994 and Appellant has already been out of service for more than seven years on account of the illegal termination from service without inquiry on 7.3.2002. We are therefore of the view that interests of justice would be served if the Appellant is reinstated with continuity of service and other consequential benefits, dispensing with any further Disciplinary action. The Appellant will not entitled to any Salary for the period 7.3.2002 till today." 17. Thus, as per settled proposition of law, if the punishment Order has the foundation of misconduct, and the same is set aside, and the Employee is ordered to be reinstated, then the Employer can initiate a regular departmental proceedings for examining such misconduct. In the instant case the Respondents have alleged serious irregularities, which require a detailed investigation and analysis. Hence, the Petitioner cannot be allowed to enjoy the imperviousness from the departmental inquiry after reinstatement." 8. Based on the legal position enunciated hereinabove the Order of Termination, dated 21.8.2017 is quashed and set aside. The Petitioner is directed to be reinstated with all consequential benefits for the remaining term of his tenure, which will be two months from the date of his reinstatement. Necessary orders reinstating the Petitioner and conferring the consequential benefits shall be passed within a period of two months from the date of receipt of the Writ of the order of this Court. It will be open for the Respondents to hold a regular departmental inquiry under the provisions of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 on his reinstatement and the Petitioner shall fully cooperate with the inquiry if held. Petition is accordingly allowed. Rule is made absolute.
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