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2001 Supreme(Guj) 804
Gujarat High Court
Judgename :P.B.MAJMUDAR
Bhavnaben Rameshchandra Shah - Appellant
Versus
STATE - Respondent
SPECIAL CIVIL APPLICATION 5948 of 1987
Decided On : 12/07/2001
Headnote:Bombay Civil Services (Discipline & Appeal) Rules - Termination - Principles of natural justice - Applicability - Petitioner working as copying clerk vide appointment order dated 5.1.1978 being relieved from service vide Collectors order dated 5.5.1987 - On ground of misbehaving and slapping Circle Inspector - Show cause notice given - After going through reply, services terminated - Petitioner not a regular Govt. servant and being paid remuneration on basis of quantum of work done by her - Held, she is not entitled to benefit of Bombay Civil Services (Discipline & Appeal) Rules - But she ought to have been given opportunity to cross-examine witnesses to defend her - Regular enquiry ought to be conducted following principles of natural justice - While setting aside impugned order, respondent directed to absorve her on regular post, without backwages, as per rules and precedent.
The petitioner may not be entitled to have the benefit of the Bombay Civil Services (Discipline and Appeal) Rules, it would not mean that even though she has been appointed as back as in 1978 by the Mamlatdar, Nadiad, no enquiry should be held in connection with the incident in question. As stated earlier, looking to the issue involved, appropriate opportunity was required to be given to the petitioner before coming to the conclusion that she was guilty and she had slapped the Circle Inspector on the relevant date. Considering the materials on record, it cannot be said that principles of natural justice are adequately followed in the instant case. It is not in dispute that the impugned order is penal in nature as the petitioners services were terminated in view of the incident in question and on no other ground. In Courts view, therefore, in such slipshod enquiry, by giving her show cause notice, her services could not have been terminated without there being any appropriate departmental enquiry in this connection. In any case, she was required to be heard properly, her explanation was required to be taken into consideration and if necessary, she was allowed to cross-examine witnesses. These could have been done if regular enquiry was initiated to find out the correctness of the incident in question. Nobody could be condemned without giving appropriate opportunity to defend oneself. In this case, therefore, it cannot be said that the principles of natural justice are complied with by the Authority before passing the impugned order. It is submitted by advocate that the petitioner being a lady employee, the Department should have protected her by finding out the true facts about her case.
[Para 6]
Considering the nature of the work which the petitioner was performing, naturally, there is no question of granting any benefit of back wages during the intervening period. Since her services were terminated because of the incident in question and since, in Courts view, she was not given appropriate opportunity to defend her case, Court is setting aside the impugned order in question. However, if she is entitled to have any other consequential benefits of seniority or getting absorbed on any other regular post by virtue of continuing as a Copying Clerk, and if any similarly situated Copying Clerk has been appointed as a regular clerk, it is for the Department to pass order in this behalf as per the Rules and precedent in this behalf. Court is only setting aside the impugned order and by virtue of the same, the petitioner will be entitled to continue to serve as per the order at Annexure `A, page 11, as Copying Clerk and for that purpose, she will be entitled to have seniority, as if she had, all throughout, remained as a Copying Clerk in the Department. It is, however, clarified that without back wages, the petitioner will be treated to be in continuous service as Copying Clerk, i.e. the post which she was holding as if the impugned order of termination was not passed against her.
[Para 8]
( 1 ) THE petitioner has challenged the order passed by the Collector, kheda, dated 5. 5. 1987, which is at Annexure f in the compilation. By the aforesaid order, the petitioner has been relieved from service from the post of Unpaid Candidate on the ground that she had misbehaved with Mr. A. R. Malek and she slapped him on 5. 5. 1986 and that because of the same, she was subjected to show cause notice and, ultimately, after going through her reply, her services were terminated. The aforesaid order is impugned in the petition at the instance of the said employee on the ground that before passing the said order, no enquiry was held and that the petitioner was not given reasonable opportunity to defend her case. It is submitted that the impugned order is penal in nature and no such order can be passed without giving reasonable opportunity to the employee to defend such action. The petitioner was appointed as Unpaid copying Clerk in 1978. It is averred in the petition that on 5. 5. 1986, Circle Inspector one Mr. Malek misbehaved with her and that she requested him not to misbehave with her and that, instead of controlling himself, he was annoyed and slapped the petitioner and, thereafter, he filed a false complaint against the petitioner as if she had slapped him. It is further averred in the petition that before passing the impugned order, no departmental enquiry was initiated and without giving opportunity of being heard, her services were terminated. The appointment order of the petitioner dated 5. 1. 1978, is produced at page 11, Annexure a. By the said order, she was appointed as Paid copying Clerk. It seems that as a Paid Copying Clerk, an employee has to perform the work of copying certain documents as per the requirement of the office and on the basis of the quantum of work performed by such employee, remuneration is to be paid to such an employee. It is not in dispute that the petitioner was accordingly performing the aforesaid work of Paid Copying Clerk since 1978. According to Mr. Chauhan, there were some Copying Clerks, who were performing similar type of work,"but they were given appointments as Regular Clerks. One of such orders is produced at page 12, annexure b. It is submitted by Mr. Chauhan that if the impugned order was not passed against the petitioner, she would also have got the benefit of appointment as a regular Clerk on the basis of her long service as a Copying Clerk. Mr. Chauhan, further, submitted that, in any case, before passing the impugned order, adequate opportunity was required to be given to her and regular enquiry should have been initiated to find out the real truth. He submitted that, as a matter of fact, the petitioner herself was subjected to misbehaviour by Mr. Malek and instead of taking any action against the said employee, ultimately, the petitioner was subjected to the impugned order, by which her services were terminated. On the aforesaid ground, the impugned order is challenged in the present petition.
( 2 ) AT the time of admitting this matter, following order was passed by this Court (Coram: A. P. Ravani, J) on 16. 8. 1990 : rule. Mr. A. R. Dave appears for the respondents and requests for time for hearing as to interim relief. The impugned order at Annexure f itself shows that principles of natural justice have not been complied with while passing the order in as much as the documents on which the Collector relied upon and which have been made the basis of the order have not been furnished to the petitioner. The documents have not been furnished on the ground that the petitioner is not a Government employee. The impugned order proceeds on the wrong assumption that the principles of natural justice are required to be complied with only in cases where employer and employee relationship exists between the Government and the other side. This is not so. All the public officers who are charged with a duty to act fairly and impartially are bound to observe the principle
