BHAVNABEN RAMESHCHANDRA SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(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 principles of natural justice while reaching at the decision. The principles of natural justice may have been engrafted in the rules governing the procedure for arriving at such a decision or even may not have been specifically mentioned in the rules. Even in cases where such provisions are not specifically mentioned in the rules, the public officer taking decision is bound to observe the principles of natural justice inasmuch as the principles of natural justice are nothing but fair play in action. No public officer needs command from the legislature that he shall act fairly. To act fairly is the duty enjoined with the public functions. Therefore, prima facie, it appears that the impugned order is in contravention of principles of natural justice and, therefore, it is a nullity. In this view of the matter, I was inclined to grant interim relief as prayed for at this stage. However, the learned counsel for the respondents requests that he be granted some time so as to take appropriate instructions form the respondent-Collector so that the matter may be finally sorted out. Request granted. SO to 27.8.1990 for hearing as to interim relief. "However, it seems that thereafter, there was no further order of interim relief and the matter stands as it is without there being any interim relief in favour of the petitioner.

(3.) The aforesaid petition is resisted by the Department by filing affidavit-in-reply. The affidavit-in-reply is filed by one M.B. Bhalgama, Resident Deputy Collector, Kheda. In Paragraph 4 of the reply, it is stated that the petitioner has misbehaved with a Circle Inspector by giving him a slap in the Office and after holding preliminary enquiry, the respondent No. 2 has dispensed with the service of the petitioner as a Copying Clerk. It is also stated in the reply that the petitioner is not a Government servant and she was appointed to work as a Copying Clerk and that she was paid remuneration on the basis of quantum of work done by her. It is stated that she was not appointed as a regular clerk, but was supposed to do only copying work in the Office. It is stated that she was paid copying charges as per the rate fixed by the Government. In Paragraph 6, it is stated that on 5th May, 1986, the petitioner had slapped Circle Inspector Mr. Malek in the Office and in presence of other employees. A preliminary enquiry was conducted by the Deputy Collector and that the respondent No. 2 was satisfied with the fact that the petitioner had slapped Mr. Malek and, thereby, misbehaved and misconducted and, therefore, it was decided to dispense with the services of the petitioner by the impugned order. It is stated that since the petitioner was not a Government servant, it was not necessary to hold any enquiry before taking the impugned action. It is stated that the respondent No. 2 had appointed a Deputy Collector to look into the matter and upon perusal of the report submitted by the Deputy Collector, the impugned order was passed. It is stated that the petitioner was given show cause notice, calling upon her to show cause as to why action should not be taken against her for the alleged misconduct. The petitioner did not give any reply to the said show cause notice and also not asked for further time for giving her extension. It is further stated in the reply in Paragraph 7 that the petitioner had remained present on 17th March, 1987 and after hearing the petitioner, the respondent had taken the final decision on 6th May, 1987. Under these circumstances, it is stated in the reply that the principles of natural justice were followed.