Employee Can't Be Terminated From Service Despite Conviction By Court In Absence Of Show Cause Notice & Opportunity To Reply: Gujarat High Court
The Gujarat High Court has recently quashed and set aside the order of termination of an employee, who was convicted for corruption, on the ground that he was neither given a show cause notice before such termination nor an opportunity to explain his case.The Bench comprising Justice Biren Vaishnav directed the employer to reinstate the employee to his original post along with...
The Gujarat High Court has recently quashed and set aside the order of termination of an employee, who was convicted for corruption, on the ground that he was neither given a show cause notice before such termination nor an opportunity to explain his case.
The Bench comprising Justice Biren Vaishnav directed the employer to reinstate the employee to his original post along with consequential benefits and backwages. However, liberty is granted to pass appropriate order afresh in accordance with law after giving opportunity of hearing to the petitioner and considering the reply which may be filed.
The Court was hearing a challenge to the order passed by Respondent No. 3 terminating the services of the Petitioner for conviction under Sections 7,12, 13(1)(d) and 13(2) of the Prevention of Corruption Act 1988.
The Petitioner vehemently contested that vide a criminal appeal, the execution of the sentence passed against him was suspended and therefore, the termination order should not have been passed. Further, no show cause notice was issued to the Petitioner prior to the termination order. Reliance was placed on V.D.Vaghela vs. G.C.Raiger, Deputy IGP, 1993 (2) GLH 1005, where it was held:
"it is borne out that termination of service without issuance of a notice prior to the order and without considering the reply of the petitioner was bad."
Similarly, in Ahmadkhan Inayatkhan v. District Superintendent of Police, Banaskantha [1989 (2) GLR 1301], the Gujarat High Court had held that failure to give notice vitiated the dismissal.
Per contra, the Respondents relied on H.N. Rao v. State of Gujarat [2000(3) GLH 358] wherein it was held that notice was not necessary before passing the order of dismissal. Further, in Union of India v. V.K. Bhaskar [(1997) 11 SCC 383], the High Court held that dismissal from service on the ground of conduct which led to conviction on a criminal charge could be passed, for which pendency of an appeal against conviction was no bar.
The Bench, however, pointed out that the law has travelled far and in Kiritkumar D. Vyas v. State of Gujarat [1982 (2) GLR 79], the Gujarat High Court had opined, "conviction, therefore cannot be utilised for passing an order of dismissal blindfoldedly without hearing the delinquent on the question of sentence."
While affirming the decision in AhmadKhan, the Bench emphasised that the principles of natural justice must be followed. Justice Vaishnav averred:
"It is thus considered an essential requirement that before disciplinary authority passed the order of dismissal against the respondent who was convicted of criminal charge to give show- cause notice and to consider the reply given to the show-cause notice."
Keeping in view the precedents, the Bench directed the reinstatement of the Petitioner along with benefits within 15 days of passing the order while clarifying that the Respondent was not precluded from passing appropriate order with fresh inquiry.
Case Title:Ramsingbhai Saburbhai Patel vs State Of Gujarat
Case No.: C/SCA/22629/2019