ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE)

1. The present Letters Patent Appeal is filed against the judgment and order dated 02.08.2021 passed in Special Civil Application No. 10592 of 2021.

2. The facts leading to filing of the present appeal are as follows:-

2.1 The respondent was appointed as Social Welfare Inspector (Class-III) after passing the requisite exam and undergoing the regular selection procedure undertaken by the Gujarat Subordinate Service Selection Board. The respondent joined his duties on 11.12.2014.

2.2 It is further the case of the appellants that on 20.04.2021, an FIR came to be filed against the respondent under the Prevention of Corruption Act and he came to be arrested. Vide order dated 23.06.2021, the appellants herein passed an order terminating the services of the respondent. Aggrieved, the respondent preferred Special Civil Application No.10592 of 2021 which came to be allowed by the impugned order.

2.3 Aggrieved by the impugned order, the appellants herein have preferred the present Letters Patent Appeal.

3. Learned Assistant Government Pleader Ms. Urmila Desai appearing for the appellants submitted that the respondent was initially appointed for a period of five years on probation and hence, there was no need for conducting the departmental inquiry as per the appointment order itself. It was submitted that the respondent was found to be involved in the corruption case which amounts to moral turpitude and such a person cannot be allowed to hold the post which is in direct public interaction. It was also submitted that a bare reading of the appointment order explicitly makes it clear that such employees are not subjected to undergo any departmental inquiry as contemplated under the relevant rules which are meant for the regularly appointed employees. Hence, it was prayed that the Letters Patent Appeal be allowed and the impugned order be set aside.

4. It is not disputed that the respondent was not given any show cause notice nor any departmental inquiry was held by the appellants before terminating the services of the respondent on the ground of his involvement in the corruption case.

5. The Hon’ble Apex Court in its decision in the case of Anoop Jaiswal v/s. Government of India reported in (1984) 2 SCC 369 has held that it is permissible for the Court to go behind the formal order of discharge so as to find out real cause of action. If the order is punitive and stigmatic in nature, even if the employee concerned is temporary employee or holding the post as on probation, his dismissal or removal would warrant a regular inquiry and full fledged compliance of natural justice. The Hon’ble Apex Court has held thus :-

“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).”

6. In the case of Chandra Prakash Shahi v/s. Stae of U.P. reported in (2000) 5 SCC 152, the Hon’ble Apex Court has held 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 t