Darshana Bachubhai Vaghela vs State Of Gujarat

Biren Vaishnav, J

RULE returnable forthwith. Mr.Kurven Desai learned AGP waives service of notice of Rule on behalf of the respondent State.

With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.

By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 20.04.2019.

It is the case of the petitioner that she was appointed as a Junior Clerk on a five year term with effect from 07.08.2013. The tenure would therefore end on 06.08.2018. On account of her absence, invoking the Gujarat Civil Services (Leave) Rules, the authorities on 31.01.2018 treated the petitioner to have deemed resigned. That order was a subject matter of challenge in appeal before the competent authority.

The State by its order of 12.03.2019, opined that principle of ‘deemed resignation’ under Gujarat Civil Services (Leave) Rules 2002, would not apply to the fixed pay employees. It was their case that condition no.14 of the resolution dated 28.03.2016 would operate. Reading condition no.14 of the resolution dated 28.03.2016 indicates that for terminating the services of such a fixed pay employee on account of misconduct, it has to be so done after the misconduct is proved and an inquiry is held from the competent authority.

Condition No.14 of the resolution of 28.03.2016 reads as under:

“14(A) Due to lack of vacancy of misconduct proved after inquiry from competent authority by following principles of natural justice or due to lack of fitness/ability for the post of

………………………., classIII (which is proved on the basis of annual evaluation reports), his/her service can be terminated by serving one month’s notice or paying one month’s fixed pay. The employee can make representation before Secretary of the concerned Department if his/her service is terminated without proper reasons. This matter shall be applicable also to the fixed pay employees appointed before 1/10/2015.”

In light of this, the impugned order was passed.

Mr.Bhatt learned counsel for the petitioner would submit that this termination therefore is contrary to the judgements of this Court, especially the one in the case of State of Gujarat v. Chetan Jayantilal Rajgor rendered in Letters Patent Appeal No.1596 of 2019 and allied matters. He would rely on the decision of this Court rendered in Special Civil Application No.6124 of 2020, which reads as under:

“1 Heard Mr.Vaibhav Vyas, learned advocate for the petitioner and Mr.Kurven Desai, learned Assistant Government Pleader for the respondent – State.

2 Rule returnable forthwith. Mr.Kurven Desai, learned AGP, waives service of rule on behalf of the respondent – State. With consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.

3 By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order of termination dated 14.05.2012, by which, the services of the petitioner was terminated on the ground of an FIR being registered against the petitioner on 09.05.2012 for commission of offences punishable under Sections 420, 465, 467, 468 and 471 of the Indian Penal Code with Nakhatrana Police Station.

4 Mr.Vaibhav Vyas, learned counsel for the petitioner, would submit that the petitioner was appointed as a Non Secretariat Clerk, Class-III. His termination was stigmatic and without notice. Aggrieved by the order, he approached the Gujarat Civil Services Tribunal by filing an appeal, being Appeal No. 125 of 2012. Realizing that the Tribunal will not be in a position to entertain the appeal, the appeal was withdrawn on 20.01.2016. He, therefore, preferred an appeal to the State which was not entertained on 04.08.2016. The competent Court, i.e. the Additional Chief Judicial Magistrate, Nakhatrana, acquitted the petitioner by a judgement and order of 22.08.2019 relying on the observations of the order of the Appellate Authority of 04.08.2016 observing that since the proceedings were pending before the Competent Court, the appeal was not entertained.

4.1 Mr.Vaibhav Vyas, learned counsel, would submit that it was reasonable for the petitioner to have waited for the outcome of the criminal case. After the outcome of the criminal case, legal notice was addressed to the respondents on 26.12.2019. Failing to elicit any response, the petition is filed challenging the order of termination.

4.2 Mr.Vyas, learned advocate, would submit that, therefore, the petition has been filed without any delay as it was reasonable for the petitioner to wait for the outcome of the criminal case.

5 Mr.Kurven Desai, learned AGP, for the State would submit that the order under challenge of termination is of 14.05.2012. Even if the Court were to agree with the statement of Mr.Vyas, learned counsel for the petitioner, even after dismissal of the appeal on 04.08.2016, the petitioner has not approached the Court immediately thereafter and if not eight years, the delay is of four years which cannot be condoned and the petition should only be dismissed on the ground of it being time barred. The issue that is raised in the petition, the delay part, is on account of the respondents in terminating the services of the petitioner based on an FIR without notice. Similar orders passed by the respondents were a subject matter of challenge before this Court.

6 In Special Civil Application No. 4439 of 2017, the petitioner who faced termination on similar grounds approached this Court, ofcourse within stipulated time frame and the Court by a reasoned judgement set aside the orders of termination referring to several decisions of the Hon’ble Supreme Court holding that such terminations were bad in law. The decision of the Co-ordinate Bench of this Court was confirmed in Letters Patent Appeal No. 1596 of 2019 in the case of State of Gujarat vs. Chetan Rajgor, wherein, the Division Bench confirmed the view of the learned Single Judge holding that irrespective of whether an employee was a contractual employee or a fixed term employee, termination without notice was bad in law. Such petitioners succeeded in their litigations and the orders of terminations were set aside.

7 In the case of Vipulkumar Atmaram

Parekh & Ors., vs. State of Gujarat Through Secretary & Ors., rendered in Special Civil Application No. 1314 of 2009, dated 24.03.2009, reported in (2009) 5 GLR 3914, the Court has expressed a view that in case where the petitioners are similarly situated, the benefit of the decision must be given to such person. In the event, the petitioner approaches the respondents for reconsideration of the position and review the order of termination based on the decision in the case of Chetan Rajgor (supra), it is expected that the respondent shall extend the similar benefits to the petitioner notwithstanding the fact that he has approached this Court only in the year 2020 as he waited for the outcome of the criminal case in which he was acquitted on 22.08.2019.

With the aforesaid observation, the petition is disposed of. It is clarified that in the event the petitioner is given favourable response, reinstatement shall be without the benefits of backwages or consequential benefits. The entire exercise shall be completed within a period of eight weeks from the date of receipt of copy of this order. Rule is made absolute to the above extent. Direct service is permitted.”

Mr.Kurven Desai learned AGP would submit that there was no purpose of holding an inquiry, inasmuch as, a contractual fixed pay employee had unauthorisedly remained absent from 07.09.2013 to 31.03.2018 for reasons not even explained. He would rely on paragraph no.8 of the reply which reads as under:

“8. The office of the District Inspector Land Records has intimated the present petitioner on several time with a letter dated 10-11-2017, 21-11-2017 and 11-12-2017 regarding the present petitioner being unauthorised absence from her duty. The competent officers also gave her the opportunity to remain present on 17-11-2017, despite various intimation made by the concerned office, the present petitioner fails to remain present on her duty. In view of her long continued unauthorized absence, the impugned order has been passed. In this regard, the provision of the Government Resolution dated 1- 12-2006 issued by the Finance Department would be applicable to the present petitioner. In view of the said GR, the impugned order to release her from the Government service is passed. The rules of the Gujarat Civil Service (leave) Rules, 2002 is not applicable to the present petitioner as these rules describes about the “resignation” (deemed resignation) should not be allowed and should not be dismissed from Government Service. As the said rules, 2002 is not applicable to the fixed pay salary employees and therefore, the impugned order to bring the “end of service” is passed by the concerned authority as per the provisions of condition no. 14(a) of the Government Resolution dated 28-03-2016.”

In light of the decisions referred to herein above, the order dated 27.04.2019 is quashed and set aside. The petitioner shall be reinstated for the remaining tenure of 7 months without consequential benefits. The respondents are however not precluded from holding an inquiry against the petitioner in accordance with law. The respondents shall see to it that the inquiry be concluded within the remaining period of the services of the petitioner and the petitioner shall cooperate with the inquiry.

The petition is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Direct service is permitted.