Andhra Pradesh High Court - Amravati
Sumiran Bansal, vs Dredging Corporation Of India Ltd., on 27 September, 2024
1
APHC010138352021
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE TWENTY SEVENTHDAY
DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 8101 OF 2021
Between:
Sumiran Bansal, ...PETITIONER
AND
Dredging Corporation Of India Ltd and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. J SUDHEER
Counsel for the Respondent(S):
1. G.ARUN SHOWRI(CENTRAL GOVT. COUSEL)
The Court made the following:
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India
"to call for the records pertaining to the impugned Office Order No.11/2021,
nd
dated 19.03.2021 and Office Order No. 12/2021, dated 22.03.2021 issued by the 2
respondent as bad, illegal, unfair, arbitrary, an action taken for extraneous reasons in
a biased and vindictive manner, amounting to victimising the petitioner with malice,
without jurisdiction, amounting to non
non-application of mind, application
ication of power by the
competent authority, violative of principles of natural justice and unconstitutional and
consequently direct the respondents to continue the petitioner as CFO and CGM (F)
with all consequential benefits including declaration of his probation by issuance of
Writ of Mandamus and pass such other and further orders".
2. Heard Mr.J. Sudheer, learned counsel for the petitioner and Mr. G.
Arun Showri, learned Central Government Counsel for the respondents.
3. Learned counsel for the petitioner would contend that the respondent
organization appointed the petitioner through examination as Chief Financial
Officer (CFO). As per the appointment order dated 12.02.2020, the petitioner
would be on probation for a period of one year from the date of reporting to
duty. The Special Meeting of Board of Directors dated 26.12.2020 found that
the petitioner not up to the mark and that he does not deserve to continue
further and in order to take a final decision vide order dated 17.02.2021
directed the Four Men Committee to submit report by 23.02.2021 and
immediately through office order dated 19.03.2021 issued by the 2nd
respondent, the petitioner was relieved from his duties as Chief Financial
Officer with immediate effect, without giving fair opportunity of hearing of the
petitioner, which is illegal and arbitrary. Hence, the present writ petition came
to be filed in questioning the inaction of the respondents.
4. Per contra, the respondents filed counter affidavit denying all material
averments made in the writ affidavit and mainly contended that the
respondents have not denied the averments of the petitioner that his
confidential reports are 'Excellent'. The Audit Committee Members have given
adverse report against the petitioner. The respondent organization took a
decision to discontinue the services of the petitioner on the basis of his poor
performance during the employment, but not on the basis of his performance
in his previous employment. The petitioner was relief of his duties as Chief
Financial Officer with effect from 19.03.2021 (FN) vide Office Order
No.11/2021, dated 19.03.2021. The petitioner has miserably failed to explain
or justify the major issues raised by various independent auditors or could
establish any standard accounting standards resulting in major reversal of
entries to the accounts as submitted to the Audit Committee on the proposed
qualifications in the draft audit report submitted by the statutory auditors. In
the case of the petitioner, the petitioner was under probation with effect from
23.03.2020, the respondent corporation is well within its rights to discharge
the petitioner from its services without notice and without assigning any
reason in terms of Para-2 of the offer of appointment and Rule 2.05(b) of the
Service Rules of the Corporation. The petitioner is not a civil servant or a
public officer and the respondent is not a government depart or government
company. Therefore question of unconstitutionality of the impugned orders
does not arise. Hence, requested to dismiss the writ petition.
5. Perused the record.
6. During learned counsel for the petitioner reiterated the contents
urged in the writ affidavit and relied on a decision of High Court of Madhya
Pradesh in "Brajesh Tiwari v. State of M.P and Others"1, wherein learned
Single Judge of the Court held as follows:-
"16. On the basis of these judgments, the following principles can be culled
out:-
Indiankanoon.org/doc/193298640/
(i) If a probationer is terminated under the rules of his employment and
such termination without anything more would not attract the operation
of Article 311 of the Constitution.
(ii) The circumstances preceding or attendant on the order of termination
examined in each case.
(iii) 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.
(iv) An order of termination of service in unexceptional 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.
(v) If there be a full-scale departmental enquiry, charge sheet is issued,
enquiry officer is appointed and then termination order is passed, it will
attract the operation of Article 311 of the Constitution.
(vi) Form of termination order is not conclusive/ decisive of its true nature
and it might merely be a cloak or camouflage for an order founded on
misconduct.
(vii) It is open to the Court before which termination order is challenged to
be behind the form and ascertain the true character of the order. The
Court can apply the doctrine of lifting the veil.
(viii) If findings were arrived at in an enquiry as to misconduct, behind the
back of officer or without a regular enquiry, the simple order of
termination is to be treated as "founded"
(ix) The factor which impelled the employer to take the action of
termination is also important to determine the real nature of the action.
17. The impugned termination order needs to be examined on the anvil of
aforesaid principles laid down by the Supreme Court.
7. Learned counsel for the petitioner vehemently argued that the
respondent Corporation after approval from the Board of Directors designated
the petitioner as Chief Finance Officer. If the petitioner was not up the mark,
the Board of Directors/ respondent-corporation would not have taken such
step in June, 2020. Within few months thereafter finding trivial and baseless
issues and finding fault with the petitioner's approach to the work without any
basis, assessment that too in one sided manner issued impugned order
against the petitioner is bad and illegal. The respondents never issued any
show-cause notice finding fault with the work pattern of the petitioner and no
complaint is made against him. Further, there is no enquiry initiated against
the petitioner. As per Brajesh Tiwari's case cited supra, it is clearly held that
an order of termination of service in unexceptional 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. If there be a full-scale departmental enquiry,
charge sheet is issued, enquiry officer is appointed and then termination order
is passed, it will attract the operation of Article 311 of the Constitution. Hence,
requested to allow the writ petition.
8. Whereas learned Central Government Counsel for the respondents
placed on record the decision of the Hon'ble Apex Court in "Chaitanya
Prakash and Another v. H.Omkarappa"2, wherein it was held as follows:-
"19. In Mathew P. Thomas v. Kerala State Civil Supply Corpn. Ltd also the employee
concerned was kept on probation for a period of two years. During the course of his
employment he was also informed that despite being told to improve his performance
time and again there was no such improvement. His shoftfalls were brought to his
notice and consequently by order dated 16-1-1997 his services were terminated,
wherein also a reference was made to his unsatisfactory service. In the said decision,
the Supreme Court has held that on the basis of a long line of decisions it appears
that whether an order of termination is simpliciter or punitive has ultimately to be
decided having due regard to the facts and circumstances of each case".
(2010) 2 SCC 623
(2003) 3 SCC 263 : 2003 SCC (L&S) 262
9. Further he relied on decision of Hon'ble Apex Court in "Abjijit Gupta
v. S.N.B. National Centra, Basic Sciences and Others" 4 , wherein the
Division Bench held as follows:-
"11. Having observed thus, the Court formulated the judicial test to determine as to on
which side of the fence the case lay, in the following words (vide SCc p. 528, para
21):
"21. One of the judicially evolved tests to determine whether in substance an
order of termination is punitive is to see whether prior to the termination there
was (a) a full-scale formal enquiry (b) into allegations involving moral
turpitude or misconduct which (c) culminated in a finding of guilt. If all three
factors are present the termination has been held to be punitive irrespective
of the forum of termination order. Conversely if any one of the three factors is
missing, the termination has been upheld".
10. In "Pavanendra Narayan Verma v. Sanjay Gandhi PGI of
Medical Sciences and Another" 5 , wherein the Division Bench of Hon'ble
Apex Court held as follows:-
"30. As was noted in Dipti Prakash Banerjee v. Satyendra Nath Bose a National
Centre for Basic Sciences " (SCC p. 73, para 28)
"28. At the outset, we may state that in several cases and in particular in
State of Orissa v. Ram Narayan Das" it has been held that use of the word
"unsatisfactory work and conduct' in the termination order will not amount to a
stigma".
11. In the instant case, the Committee noted his unprofessional
conduct in the discharge of his duties as CFO during past few months of his
association with the company. As per Minutes of special meeting of members
of the audit committee held that the unanimous view that emerged at the
(2006) 4 SCC 469
(2002) 1 SCC 520
(1999) 3 SCC 60 : 1999 SCC (L&S) 596
AIR 1961 SC 177
conclusion of the meeting was that the petitioner had lost the confidence of
the audit committee. The Audit committee, keeping in mind their fiduciary
responsibilities are of the view that the continuation of the petitioner as CFO
would not be in the best interest of function of the respondent and the
probation of the petitioner till 22.03.2021 and made recommendations.
Subsequently, the 2nd respondent issued impugned order No.11/2021, dated
19.03.2021.
12. In the instant case, no such enquiry has been conducted by the
respondents with regard to alleged allegations attributed against the
petitioner, without any complaint and none of the authorities have given an
opportunity to the petitioner to putforth his case, thereby totally violating the
procedure. Suddenly, the Board of Directors convened a meeting and took
decision to terminate the petitioner straightaway and issued impugned order
is highly illegal and arbitrary.
13. It is categorically held in Brajesh Tiwari's case cited supra that the
Courts have repeatedly held that simple termination of probationer is
permissible, but if there is some material is gathered and stigma is attached
to the probationer while discharging the same is punitive and requires proper
enquiry and that one cannot be condemned without enquiry. The said
precedent is squarely applicable under the category of stigmatising the
petitioner, thereby making it punitive and as there is no enquiry preceding the
impugned proceedings, it deserves to be set aside.
14. Learned counsel for the petitioner questioned the action of the
respondents in issuing the impugned order against the petitioner abruptly by
convened a Special meeting by the Board of Directors, which caused great
loss and hardship to the petitioner in the light of facts and circumstances of
the case. Therefore, the decisions relied by the respondents is not applicable
to this case directly, as no enquiry has been conducted and no complaint is
made against the petitioner for the allegations attributed against the
petitioner. Further no show-cause notice or memo issued prior to special
meeting conducted by the Board of Directors.
15. Having regard to the facts and circumstances of the case and
considering the submissions of both the counsel, this Court opined that the
action initiated against the petitioner and issued impugned proceedings is
declared as illegal and that the same is hereby set aside.
16. Accordingly, this Writ Petition is disposed of, while directing the
respondents to conduct an enquiry against the petitioner on the allegations if
any after affording ample opportunity of personal hearing of the petitioner
with relevant documents and pass appropriate reasoned order in accordance
with law, within a period of three (03) months from the date of receipt of a
copy of this order. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand
closed.
______________________________
DR. JUSTICE K. MANMADHA RAO
Dated: 27.09.2024.
KK
