Bombay High Court
Dhrubajit Amiya Kumar Ghosh vs Maharashtra Electricity ... on 26 April, 2016
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2345 OF 2016
Dhrubajit Amiya Kumar Ghosh
age about 39 years, presently
residing at 202, Raghunath Vihar,
Plot No. 78, Sector-50 (New),
Seawoods, Nerul (W),
Navi Mumbai 400 706 .... Petitioner
vs
1 Maharashtra Electricity
Regulatory Commission,
having its office at 13th floor,
Centre No.1, Word Trade Centre,
Cuffe Parade, Colaba,
Mumbai 400 005
2 The Deputy Director,
(Administration and Finance),
Maharashtra Electricity
Regulatory Commission,
having its office at 13th floor,
Centre No.1, Word Trade Centre,
Cuffe Parade, Colaba,
Mumbai 400 005
3 Mr. Suresh Mahajan,
Enquiry Officer,
Having his office at
760, First Floor,
Soban Bhuvan, Jehangir Vimadlal
Road, Parsi Colony, Dadar (E),
Mumbai 400 014 .... Respondents
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Mr. Bhavesh Parmar i/b. Mr. Devmani J. Shukla for the Petitioner.
Mr. Rajeev Chavan, Senior Advocate with Mr. Ratnakar Singh for
Respondents 1 and 2.
CORAM: ANOOP V. MOHTA AND
S. C. GUPTE, JJ.
CLOSED FOR JUDGMENT ON : March 07, 2016
PRONOUNCED ON : April 26 , 2016
JUDGMENT (Per S. C. GUPTE, J.):
The Petitioner has challenged an order dated 8 February 2016
passed by Respondent No.2, terminating the services of the Petitioner
who was, according to Respondent Nos. 1 and 2, on probation.
2 On 29 June 2012, the Petitioner was appointed to the post of
Deputy Director (Legal) with Respondent No.1 on nomination basis,
to be governed by the Maharashtra Electricity Regulatory Commission
(Recruitment and Conditions of Services of Employees) Regulation,
2007. Under Regulation 20, the Petitioner's appointment was on a
probation for one year, with option to Respondent No.1 to extend the
probation period by a further period of one year. The Petitioner
remained on probation without the period of probation being
extended by any specific order.
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3 On 17 December 2014, Respondent No.1 appointed
Respondent No.3 for conducting an enquiry against the Petitioner as
per Rule 8 of the Maharashtra Civil Services (Disciplinary and Appeal
) Rules, 1979. On 8 February 2016, Respondent No.2, for and on
behalf of Respondent No.1 terminated the services of the Petitioner by
giving a thirty days' notice under Regulation 21. The Petitioner
challenges the order of termination on the ground that as of 8
February 2016, the Petitioner cannot be treated as an employee on
probation; that he had become a permanent employee upon
completion of one year on 29 June 2013; and that Regulation 21,
which only applied to probationers, did not apply to the Petitioner. It
is submitted that Rule 8 was invoked and an inquiry was initiated
against the Petitioner presumably on the ground that he was a
permanent employee of the Commission on 17 December 2014.
4 There are two questions to be considered here. The first is of the
applicability of Regulation 21 to the Petitioner. In other words, it is to
be considered, whether the Petitioner continued to be on probation
when he was terminated. The second is, whether or not the
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termination was punitive. There is material on record to show that in
case of various officers, who were appointed as Deputy or Assistant
Directors in 2012, the process of confirmation was initiated in 2014
and was completed in the same year, whereupon letters of
confirmation were issued to all these officers. That did not happen in
the case of the Petitioner. The reason is said to be want of a certificate
of proficiency in 'Marathi' language, which was a requirement for the
post held by the Petitioner. There is correspondence on record that
such certificate was demanded from the Petitioner, but not submitted
by him. Not only this, but is appears from the record that the
Petitioner had actually called for an English translation of a memo
issued to the Petitioner in Marathi in the interregnum, suggesting lack
of proficiency in Marathi. There are also documents on record which
show that another warning memo was issued to the Petitioner in
connection with attending the office late, absenteeism and careless
attitude towards work. Another show cause notice was issued to the
Petitioner in connection with purported negligence in attending some
matters of the Commission before different courts. It is the
Respondents' case that since the Petitioner was found to be wanting
in efficiency to give him reasonable opportunity to mend his ways and
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duties a departmental inquiry was conducted whilst the Petitioner
was on probation. This was in keeing with the Government Resolution
of 21 March 2000. Even during the departmental inquiry, dereliction
of duties on the part of the Petitioner was noticed. As a result, on 23
December 2014, the Petitioner was suspended. Later on 11 February
2015, three additional charges were framed against the Petitioner
and added in the departmental inquiry. Respondent No.3 submitted
his report on 6 November 2015. Out of ten charges, five charges were
said to be proved against the Petitioner. The Commission ultimately
came to a conclusion that the performance of the Petitioner was not
satisfactory. Therefore, taking an overall view of the matter, the
Commission has taken a conscious decision to discontinue the services
of the Petitioner in the probation period, under Regulation 21, by
the impugned order. As the Petitioner was on probation since there
was no specific confirmation order passed in his case, and as the
Enquiry Officer found unsatisfactory service/behaviour on his part
after a due inquiry in which a fair opportunity of hearing was given to
him, the Commission took a decision to discontinue the services of the
Petitioner.
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5 From the foregoing narration, it is clear that the Petitioner was
always treated as a probationer. The Commission followed the
practice of confirming its employees on probation after considering
their performance during probation, and there was no automatic or
deemed confirmation. The Petitioner, thus, being on probation at the
relevant time, awaiting his confirmation, is governed by Regulation
21 of the Regulations of 2007.
6 That a departmental inquiry was conducted against the
Petitioner is not, in itself, in our view, a reason to accept the
contention that the Petitioner was confirmed and that the inquiry
against him was accordingly conducted by invoking Rule 8 of the
Maharashtra Civil Services Rules. The relevant Government
Resolution (i.e. G.R. dated 21 March 2000) provides for holding of
such inquiry against a person even if he is on probation. The
invocation of Rule 21, in the background, therefore, based upon an
inquiry under Rule 8 of the Maharashtra Civil Services Rules, in no
way, can be stated to be contrary to law or impermissible. There are
no mala fides or illegality or breach of principles of natural justice
pointed out before us in respect of the impugned action. We
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accordingly see no infirmity or illegality in the impugned order.
7 Learned counsel appearing for Respondents 1 and 2 relied on
the judgment of the Supreme Court in Jai Kishan v. Commissioner
of Police and anr 1, in support of their action. In that case also the
probationer had failed to improve his performance although allowed
to continue in service beyond the maximum statutory period of
probation. It was held that such person could not be deemed to have
been confirmed. The termination, therefore, was held to be proper.
Non-completion of satisfactory service, during the probation, can lead
to termination. It is accordingly found by the Authority/Enquiry
Officer in the present case. There is nothing to show that on expiry
of the period of one year, the Petitioner had a right to be confirmed.
On the contrary, as recorded, an option was given to the Respondents
to extend the period of probation further.
8 The termination of services after giving thirty days time, by
invoking Regulation 21, as his performance was found to be
unsatisfactory by the Enquiry Officer, pursuant to the Enquiry
1 1995 Supp (3) SCC 364
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conducted under Rule 8, and the Resolution referred to above, makes
the Petitioner's case distinguishable from the judgments cited by
learned counsel appearing for the Petitioner in his support, including
Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical
Sciences, Patna, Bihar and ors 2 . In that case, the departmental
inquiry itself was conducted behind the back of the appellant by the
Vigilance Department. Such is not the case here. There was no
breach of principles of natural justice. The right of the probationer,
as laid down in the above judgment, is not in dispute. The question
is, whether, in the facts and circumstances of the case, the Petitioner
is entitled to claim such right.
9 The judgments of Supreme Court in Dayaram Dayal v. State of
M. P. and anr3 and Head Master, Lawrence School Lovedale v.
Jayanthi Raghu and anr4, for the reasons recorded above, are of no
assistance to the Petitioner either. We have noted that the Petitioner
never acquired the status of a confirmed employee. Still, the inquiry
was conducted in accordance with the Resolution and the relevant
2 Supreme Court Civil Appeal No.8662/2015 decided on 15.10.2015
3 (1997) 7 SCC 443
4 Supreme Court Civil Appeal No.2868/2012 decided on 16.3.2012
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Rule. The conduct of inquiry was an additional factor, which was not
a requirement before terminating the services of a probationer like
the Petitioner. The fact of unsatisfactory performance in itself, in our
view, was sufficient for Respondents 1 and 2 to pass the order of non-
confirmation. The impugned order, therefore, cannot be interfered
with.
The aspect of non-production of certificate of knowledge of,
and proficiency in, Marathi, which was a requirement under the
relevant service conditions, also cannot be overlooked. Taking an
overall view, considering that the Petitioner was not confirmed in the
employment, apart from the reason of unsatisfactory performance
recorded above, the Petitioner admittedly not having submitted a
certificate of proficiency in Marathi, being one of the qualifications,
namely, "written and verbal communication skill in Marathi and
English", the order of Respondents 1 and 2 cannot be faulted.
11 The inquiry was with the intention to assess the suitability or
unsuitability of the Petitioner. It cannot be stated that the inquiry
was "punitive in character". The inquiry was to arrive at a proper
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conclusion, before making him permanent and to ascertain correct
facts, for considering whether or not to continue him. There is
nothing wrong in such inquiry.
12 In the result, the Writ Petition is dismissed. There shall be no
order as to costs.
(S. C. GUPTE,J.) (ANOOP V. MOHTA, J.)
