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2016 Supreme(Guj) 1709

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B PARDIWALA, J.
Hema Ritesh Thakker & Others & Ors. - Petitioners
Vs.
State of Gujarat Through Registrar & Ors. - Respondents
Special Civil Application No. 586 of 2011 With Special Civil Application No. 1030 of 2010 With Special Civil Application No. 2541 of 2011 To Special Civil Application No. 2555 of 2011
Decided On : 31-08-2016

Advocates Appeared:
For the Appellant :Mr. Hardik C Rawal, Advocate
For the Respondent:Government Pleader, Mr. Dipak R Dave, Advocate

Headnote:

Constitution of India, Article 226 – Civil Procedure Code – Since the issues raised in all the captioned writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order. For the sake of convenience, the Special Civil Application No. 586 of 2011 is treated as the lead matter. By this writ application under Article 226 of the Constitution of India, the writ applicants, former employees of the State Transport (Employees) Co-operative Bank Limited, have prayed for the following relief be pleased to allow this petition be pleased to issue a writ of mandamus or any other appropriate writ, order or direction by quashing and setting aside the impugned action/order (Annexure-C) and Annexure C(1) of terminating the services of the petitioners and/or further be pleased to punish the respondents No. 1, 2, 4 and 5 by holding them guilty of contempt for will fully flouting the order passed by this Court at Annexure-A to this petition and/or further be pleased to direct the respondents to forthwith reinstate the petitioner with continuity of service and all consequential and incidental benefits pending admission, hearing and final disposal of this petition, be pleased to stay the further operation, implementation, execution and enforcement of the impugned action terminating the services of the petitioners and further be pleased to direct the respondents to forthwith reinstate the petitioners on their original post with continuity of service on the same terms and conditions and all consequential and incidental benefits be pleased to pass such other and further orders may be deemed just and proper looking to the facts and circumstances of the case and in the interest of the justice –Held, Termination may be made even during the subsistence of the term of appointment and without assigning any cause means without communicating any cause to the appointee whose appointment is terminated. However, without assigning any cause is not to be equated with without existence of any cause. It merely means that the reason for which the termination is made need not to be assigned or communicated to the appointee. It was held in Liberty Oil Mills v. Union of India, A.I.R 1984 S.C 1271 that the expression without assigning any reason implies that the decision has to be communicated, but reasons for the decision have not to be stated; but the reasons must exist, otherwise, the decision would be arbitrary. The non-assigning of reasons or the non-communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy. Clause 3 of para 7.06 must, therefore, be understood to mean that the appointment of a District Government Counsel is not to be equated with appointment to a post under the Government in the strict sense, which does not necessarily mean that it results in denuding the office of its public character and that the appointment may be terminated even during currency of the term by only communicating the decision of termination without communicating the reasons which led to the termination. It does not mean that the appointment is at the sweet will of the Government which can be terminated at any time, even without the existence of any cogent reasons during the subsistence of the term – Writ applications are disposed.

JUDGMENT :

J.B PARDIWALA, J.

Since the issues raised in all the captioned writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.

2. For the sake of convenience, the Special Civil Application No. 586 of 2011 is treated as the lead matter.

3. By this writ application under Article 226 of the Constitution of India, the writ applicants, former employees of the State Transport (Employees) Co-operative Bank Limited, have prayed for the following reliefs;

“(A) be pleased to allow this petition.

(B) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction by quashing and setting aside the impugned action/order dated 10.1.2011 (Annexure-C) and Annexure C(1) colly of terminating the services of the petitioners and/or further be pleased to punish the respondents No. 1, 2, 4 and 5 by holding them guilty of contempt for willfully flouting the order passed by this Hon'ble Court at Annexure-A to this petition and/or further be pleased to direct the respondents to forthwith reinstate the petitioner with continuity of service and all consequential and incidental benefits.

(C) pending admission, hearing and final disposal of this petition, be pleased to stay the further operation, implementation, execution and enforcement of the impugned action/order dated 10.1.2011 Annex.C and Annex.C(1) colly terminating the services of the petitioners and further be pleased to direct the respondents to forthwith reinstate the petitioners on their original post with continuity of service on the same terms and conditions and all consequential and incidental benefits.

(D) be pleased to pass such other and further orders may be deemed just and proper looking to the facts and circumstances of the case and in the interest of the justice.”

4. The case of the writ applicants may be summarized as under;

4.1 The writ applicants joined the services of the respondent No. 5-Bank as the clerks and peons in the decade of early 90's. to be precise, the details are elicited as under;

Sr. No. Name of petitioner Date of appointment Post

1 Hema Ritesh Thakkar 22.12.93 Clerk

2 Jignasha Sandip Raval 09/03/93 Clerk

3 Mahendrabhai Ramjibhai Patel 02/01/95 Clerk

4 Kanubhai Tribhovandas Ratnottar 02/01/95 Clerk

5 Yogesh Shanrkarlal Mehta 28.1.1992 Clerk

6 Sandip Piyushkumar Raval 02/01/95 Clerk

7 Ashvin Suryakant Parmar 09/03/93 Clerk

8 Ketan J. Patel 09/03/93 Clerk

9 Rakesh A. Parmar 09/03/93 Clerk

10 Kirti K. Parmar 09/03/93 Clerk

11 Ashok R. Zala 01/03/93 Clerk

12 Ishwar M. Desai 09/03/93 Peon

13 Dipak B. Dave 09/03/93 Clerk

14 Haresh R. Patel 09/03/93 Clerk

15 Natubhai B. Parmar 09/03/93 Peon

16 Rafiqali A. Saiyed 21.1.1995 Peon

4.2 It appears that their services were ordered to be terminated vide order dated 29th January, 2010 passed by the Registrar, Co-operative Societies, in the purported exercise of power under section 160 of the Gujarat Co-operative Societies Act, 1961. The writ applicants rushed to this Court by filing the Special Civil Application No. 1030 of 2010 and prayed that their services may be protected as the termination was arbitrary, illegal and in violation of the principles of natural justice.

4.3 On 10th February, 2010, a learned Single Judge of this Court passed the following order;

“1. Petitioners approached this Court on 03.02.2010 with a request to urgently circulate the petition for hearing and grant of mandatory relief so as to restrain the respondent concerned from discharging the petitioners from service. The Court, however, ordered to issue urgent notice as to admission and interim relief, pursuant to which learned A.G.P has appeared for respondent No. 1 and learned counsel Mr. N.A Pandya appears for respondent No. 2 and learned counsel on both sides are heard in extenso. At the end of arguments on both sides, learned counsel Mr. Pandya declared that respondent No. 2 has conveyed to him instructions to support the petitioners and hence he no longer wanted to represen



















































































































































































































































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