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2011 DIGILAW 1449 (BOM)

State of Maharashtra v. Dipak Pandurang Sawarkar

2011-11-29

B.P.DHARMADHIKARI, P.D.KODE

body2011
B. P. Dharmadhikari, J.: 1. State Government, Commissioner-Amravati Division & Collector, Amravati have on 18/11/2010 filed this writ petition under Articles 226 &. 227 of the Constitution of India assailing the order dated 6/1/2010 passed by the MAT i. e. Maharashtra Administrative Tribunal, Nagpur Bench in Original Application 1121 of 1994 setting aside the termination order dated 6/3/1987 and ordering reinstatement of present respondent as junior clerk with 25% back wages till the date of reinstatement. MAT has given petitioners liberty to initiate departmental enquiry against him and to take decision about the continuity of service of the respondent for period of absence from duty. This Court has admitted the matter for final hearing on 14/6/2011 and granted status quo. It appears that respondent employee had filed W.P. 16 of 2011 and it was allowed to be withdrawn on 12/1/2011, keeping his challenge to operative parts about decision on continuity & liberty to hold departmental inquiry open. He then filed Civil Application 2665 of 2011 for vacation of direction to maintain status quo pointing out the circumstances in which his counsel could not appear before this Court on 14/6/2011. We have heard respective Counsel finally at that stage with consent. 2. Learned AGP Adv. Khubalkar has invited attention to express language in appointment order of respondent to demonstrate that respondent had no right to post and his appointment was purely temporary in nature. It could have been put to an end without assigning any reason and here, has been brought to an end by plain order without casting any stigma on him. Use of this power or its validity has not been considered by the MAT and thus there is failure to exercise the jurisdiction. He contends that motive as also foundation were irrelevant & that there was no need to hold departmental enquiry and application of mind in this regard by MAT is erroneous. He has relied upon number of judgments to show how such simple discharge of a probationer who has some semblance of right to post is dealt with by Hon. Apex Court & High Court. He submits that MAT has only looked into part of defense raised by petitioner to justify the termination and thus, there is non-application of mind. 3. Shri Harkare, learned Advocate for the respondent has supported the impugned order. He submits that MAT has only looked into part of defense raised by petitioner to justify the termination and thus, there is non-application of mind. 3. Shri Harkare, learned Advocate for the respondent has supported the impugned order. He states that respondent was given that appointment as nominee of freedom fighter on 1/8/1981 and termination is on 6/3/1987 ie almost after 6 years. In this background, MAT has found it proper to find out real reason & noted that alleged absence from duty was reason there for & hence, proceeded to grant relief to the respondent. He argues that alleged absence of right to post or then absence of any stigma in termination order are the points raised before this Court and not even pleaded before MAT. AIR 1966 S.C. 837 -- "Municipal Corporation of the City of Jabalpur v. State of M.P.", is relied upon by him to urge that such type of a new plea can not be entertained by this Court. As all relevant aspects are looked into by MAT & there is no jurisdictional error, the writ petition is liable to be dismissed. 4. Paragraph 10 in order of MAT shows the contention of State Government that appointment of respondent was purely temporary liable to be terminated at any time without any notice and without assigning any reason. MAT also notes the defense that respondent accepted service with said condition & hence, he could not have any grievance against the termination order. Next contention about order not amounting to penalty in view of Rule 5 of the Maharashtra Civil Services (Discipline & Appeal) Rules,1979 is then noted in para 11 and in para 12 MAT finds termination due to long absence & therefore not falling under that rule. These Rules are referred to as D & A Rules hereafter. MAT holds that Rule 5 clause (viii) (b) envisages termination of service of a temporary government servant on ground unconnected with his conduct and hence, irrelevant. It relies upon the return filed by State before it to note that respondent was alleged to be negligent as he remained absent between 1982 & 1987 without any intimation and holds that it was the actual reason for termination. It then concludes that termination for such absence was not legal without holding disciplinary proceedings. MAT, therefore, has granted relief as noted above. It then concludes that termination for such absence was not legal without holding disciplinary proceedings. MAT, therefore, has granted relief as noted above. In the process, defense of State Government noted by it in paragraph 10 and its impact on issue raised before it, is totally lost site of & has not been considered. 5. Judgment of Hon'ble Apex Court in "Municipal Corporation of the City of Jabalpur v. State of M.P."(supra) is relied upon by Adv. Harkare show that the State Govt. of Madhya Pradesh issued a notification under S. 81 of the Jabalpur Corporation Act, 1948, resuming the land granted to the Jabalpur Municipality under S. 38 (1) (f) of the Central Provinces Municipalities Act, 1922, by the Govt. of Central Provinces. The Corporation moved the High Court of Jabalpur for relief under Art. 226 praying for the issue of writ of mandamus quashing that notification. The Corporation did not deny the fact that it was the Govt. of C. P. and Berar that had effected the transfer and the allegation in the petition in fact proceeded on that basis. During the argument however, the Corporation put forward the case that the transfer was not by the Govt. of the Central Provinces but by the Central Govt. This new contention was based on the reasoning that S. 81 of the Jabalpur Corporation Act applied to transfers made after the Corporation Act came into force. Hon. Apex Court in this backdrop has held that the High Court should not have allowed the petitioner Corporation to put forward the new case, but should have proceeded on the basis of the pleading Perusal of paragraph 5 & 10 of the order of MAT itself reveals that requisite plea about absence of right to post & power with employer to put an end to it at any time without assigning any reason due to nature of appointment and acceptance of said term by the respondent has been expressly pleaded & argued by State. Hence, this judgment of Hon. Apex Court has no relevance in present facts. 6. Law expounded on the termination of temporary servants by Hon'ble Apex Court in 1995 AIR SCW 1150-- "Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain", squarely applies here. Hence, this judgment of Hon. Apex Court has no relevance in present facts. 6. Law expounded on the termination of temporary servants by Hon'ble Apex Court in 1995 AIR SCW 1150-- "Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. v. Devendra Kumar Jain", squarely applies here. The appellant there was a Government Company within the meaning of Section 617 of the Companies Act which is controlled and owned by the State Government and a subsidiary company of M. P. Laghu Udhyog Nigam Limited which is carrying on business activities of development of handicrafts and handloom products. Shri K. P. Thakur was the Managing Director of the appellant-Company who by an order dated 6-7-89 appointed the respondents No. 1 to 3 as temporary Jr. Managers and by subsequent two orders both dated 8-6-89 appointed the respondents Nos. 4 and 5, as temporary Junior Managers in the appellant-Company, Soon after their appointment the appellant-company noticed that the aforesaid appointments of respondents Nos. 1 to 5 were made by the then Managing Director, Shri K. P. Thakur in contravention of the Government Order dated 1-4-89 without the approval of the State Government and therefore, another Managing Director, successor of Shri K. P. Thakur by order dated 31-7-89 terminated the services of the respondents Nos. 1 to 5. The respondents challenged the aforesaid order of termination in the High Court of Madhya Pradesh in Miscellaneous Petition No. 3973/83 which was allowed by judgment dated 1-12-93 whereby the order of termination of the respondents was quashed. High Court directed that the respondents would continue in service till their services were not validly terminated. The High Court quashed the order of termination of service of respondents on two grounds. Firstly, the High Court took the view that the respondents' services were terminated without giving them any opportunity of hearing in consonance with the rules of natural justice and, therefore, the order of termination of service was contrary to law and violative of Article 14 of the Constitution. Secondly Government approval was not necessary for the appointment as contended by the appellant and that in any case no material was placed to show that the appointment was contrary to the Government instructions. Secondly Government approval was not necessary for the appointment as contended by the appellant and that in any case no material was placed to show that the appointment was contrary to the Government instructions. Hon. Apex Court held that the High Court fell in serious error in taking the aforesaid view as the appointment of the respondents was made purely on temporary basis which is evident from the order of their appointment. Relevant clause in both the appointment orders stipulated that -- “Above appointments are purely temporary and are liable to termination without notice or assigning any reason.” Findings recorded in paragraph 5 below by Hon'ble Apex Court are important :-- “5. A plain reading of these two orders will go to show that the appointments were made purely on temporary basis and their services were liable to be terminated at any time without notice or assigning any reason. In the case of appointment on temporary basis a servant who is so appointed does not acquire any substantive right to the post, even though the post itself may be permanent and it is an implied term of such appointment that it may be terminable at any time and without notice. A temporary Government servant does not become a permanent Government servant unless he acquires that capacity by force of any rule or he is declared or appointed as a permanent servant. In the present case there is no rule under which the respondents may be deemed to have become permanent by force of such rule nor they were so declared by any subsequent order of the appellant-Company to have acquired that status. On the contrary the respondents all along continued to be temporary and according to the terms of the order of appointment their services could be terminated at any time without any notice or assigning any reasons. In such a case it is not necessary to follow the formalities contemplated by Article 311 of the Constitution. On the contrary the respondents all along continued to be temporary and according to the terms of the order of appointment their services could be terminated at any time without any notice or assigning any reasons. In such a case it is not necessary to follow the formalities contemplated by Article 311 of the Constitution. In these facts and circumstances the High Court was not right in holding that the respondents were entitled for being heard before passing the said order of termination of their services and that the order of termination was bad in law on that account.” We may point out that Division bench of Patna High Court in AIR 1967 PATNA 404--"Dhananjai Singh v. State", after referring to AIR 1964 SC 449 -- Jagdish Mitter v. Union of India & AIR 1962 SC 1711 -- S. Sukhbans Singh v. State of Punjab, held that when service of a temporary Government servant having no right to post held by him was terminated after proper notice & the order of discharge did not cast any aspersion on him as also no mala fides were proved against terminating authority, the motive behind such order was immaterial. It held that Art. 311(2) of the Constitution of India is not attracted in case of such discharge simpliciter. 7. Rule 5(viii) (b) of D & A Rules now deserve a look. Part III of these Rules deals with Penalties & Disciplinary Authorities. Rule 5(1) points out minor & major penalties. Explanation to Rule 5(1) then lists in its clauses (I) to (viii) what shall not amount to a penalty within the meaning of said Rule. Clause (viii) appears as last clause in this list. Its perusal shows that termination of a probationer during or at the end of probation in accordance with the terms of his appointment or as per rules & orders governing such probation does not amount to penalty. Similarly, termination of a government servant working under an agreement as per terms of such agreement is also not a penalty. Sub-clause (b) of this Clause (viii) reads-- “of a temporary government servant on grounds unconnected with his conduct”. Thus such termination also does not amount to penalty. Neither MAT records nor respondent has urged that bare perusal of termination order shows that it is on grounds connected with his conduct. Sub-clause (b) of this Clause (viii) reads-- “of a temporary government servant on grounds unconnected with his conduct”. Thus such termination also does not amount to penalty. Neither MAT records nor respondent has urged that bare perusal of termination order shows that it is on grounds connected with his conduct. Respondent has pleaded before MAT that after completion of three years service, he acquired status of permanency and his services could not have been terminated without following procedure prescribed by law. However, MAT has not accepted this stand of permanency & respondent's writ petition challenging MAT order has already failed at-least in this respect. He further pleaded absence of charge sheet or show cause and hence, not extending to him an opportunity to meet the charges, if any. Thus, there is no allegation of any stigmatic termination and corresponding violation of principles of natural justice. In reply affidavit, State Government relied upon the nature of appointment and exercise of its right by it to put an end to such appointment without assigning any reason at any time. It has then pointed out his unauthorized long absence on 9 occasions between 15/6/1982 to 6/3/1987 mentioning that in service span of 5 ½ years, he kept away from work for 3 years & 8 months. But then the termination order dated 6/3/1987 does not reveal any such reason. It puts an end to his temporary service “as no longer required”. Thus order is non-stigmatic & innocuous. Facts disclosed in reply affidavit before MAT by Government have no bearing on it & can not form basis to infer that said termination is punitive. In “Madan Gopal v. State of Punjab” - AIR 1963 SC 531 ,it is found by one of the three Hon. Judges that there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. In “Madan Gopal v. State of Punjab” - AIR 1963 SC 531 ,it is found by one of the three Hon. Judges that there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. In AIR 1968 S.C.1089 -- "State of Punjab v. Sukh Raj Bahadur", the appeal was by a certificate granted by the Punjab High Court under Article 133 of the Constitution against its judgment and order dated January 7, l963 in Letters Patent Appeal No. 157 of 1959 reversing a decision of a single Judge of that Court who had dismissed a writ petition filed by the respondents to declare that the order of the first appellant reverting him to his permanent post in the Delhi Administration was invalid and to quash the same. The Hon'ble 3 Judges have observed:-- “ 16. On a conspectus of these cases, the following propositions are clear :- 1. The services, of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution. 5. If there be a full-scale departmental enquiry envisaged by Article 311 i. e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article. 17. In this case the departmental enquiry did not proceed beyond the stage of submission of a charge-sheet followed by the respondent's explanation thereto. The enquiry was not proceeded with, there were no sittings of any Enquiry Officer, no evidence recorded and no conclusion arrived at on the enquiry. 17. In this case the departmental enquiry did not proceed beyond the stage of submission of a charge-sheet followed by the respondent's explanation thereto. The enquiry was not proceeded with, there were no sittings of any Enquiry Officer, no evidence recorded and no conclusion arrived at on the enquiry. In these circumstances the principle in Madan Gopal's case, (1963) 3 SCR 716 = (AIR l963 SC 531) or Jagdish Mitter's case, AIR 1964 SC-449 will not be applicable. The case is in line with the decisions of this Court in 1981-1 SCR 606= ( AIR 1961 SC 177 ), (Civil Appeal No. 590 of 1962 D/- 23-10-1963(SC) and Civil Appeal No 134l of 1966, D/- 13-12-1966 (SC) (supra) 18. In this view of the matter, we are unable to concur with the opinion of the Division Bench of the Punjab High Court.” In AIR 1999 S.C. 983 "Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sc.", Hon'ble Apex Court holds that the words amounting to 'stigma' need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. Here the order dated 6.3.1987 is complete in sense it does not contain any reference to other material or records and it is nobody's case that any departmental inquiry or fact finding enquiry has been conducted. In this situation, following observations of Hon'ble Apex Court in para 22 are significant.:-- “ 22. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegation would be a motive and not the foundation and the simple order of termination would be valid.” Recently a bench of Hon'ble 3 Judges of Apex Court in AIR 2010 S.C. 3493 -"Union of India v. Mahaveer C. Singhvi," has considered the legality of discharge of probationer who was respondent before it. The attending circumstances noticed by Hon. Apex Court are important. Respondent was appointed to Foreign service on probation & discharge order passed against him was innocuous. But facts disclosed that inquiries conducted against respondent on complaint filed against him were considered though in inquiries he was exonerated. Moreover, Hon. Apex Court noted prejudice of Department against respondent which was evident from departure made from Rules only for a year so as to deny him right to opt for German language. In this background, order of discharge in facts was held to be punitive & liable to be set aside as it was passed without giving opportunity of defence to the respondent probationer. All leading cases find consideration in this judgment and facts necessitating the view taken can be gathered from paragraph 31. 8. In present matter, there admittedly was no departmental enquiry at all. Hence, petitioner has not even attempted to reach any finding on opinion on guilt or otherwise of respondent. There is no design to punish him at all. His absence did not form foundation of order dated 6.3.1987. The respondent has not raised any ground of malafides against any of his superiors and has not even alleged victimization. Therefore there is no question of abuse of power or colourable use of power by his employer. This discussion is sufficient to hold that termination of respondent before us is not for grounds connected with his conduct but in exercise of its rights under the terms of appointment by the employer State Government. MAT has erred in connecting the absence disclosed in reply affidavit with the otherwise simple termination order when nature of respondent's appointment was not in dispute and respondent did not plead any victimization. There is absolutely nothing on record to comprehend that State Government laked bona fides or the colourable use of power by it. MAT has erred in connecting the absence disclosed in reply affidavit with the otherwise simple termination order when nature of respondent's appointment was not in dispute and respondent did not plead any victimization. There is absolutely nothing on record to comprehend that State Government laked bona fides or the colourable use of power by it. Material disclosed in return was only to show absence of mala fides & it could not have been read as constituting foundation of termination order or to connect it with respondent's conduct. Termination of respondent -- a temporary government servant by a plain & simple order on 6.3.1987 without casting any stigma on him is in terms/conditions in his appointment order. It is a termination of a temporary government servant on grounds unconnected with his conduct. MAT therefore could not have interfered with such termination & given any relief to respondent. 9. Thus this writ petition needs to be allowed. The order dated 6/1/2010 passed by the Maharashtra Administrative Tribunal, Nagpur Bench in Original Application 1121 of 1994 is hereby quashed & set aside. The termination order dated 6/3/1987 passed by the petitioners is hereby restored. Rule made absolute accordingly with no orders as to costs. Petition allowed.