Bombay High Court
Namdeo Yadaora Dhakate vs State Of Mah & 2 Ors on 25 July, 2016
Bench: B.P. Dharmadhikari
1 Judg. WP 1667.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.1667 of 2002
Namdeo s/o Yadorao Dhakate,
aged about 40 years, Occ.-Service,
R/o.-Industrial Training Institute (I.T.I.) Gondia. .... Petitioner.
Versus
1] State of Maharashtra,
through its Secretary,
Higher and Technical Education,
Mantralaya, Mumbai.
2] Dy. Director of Technical Education,
Regional Office, Link Road, Sadar, Nagpur.
3] Principal Industrial Training Institute,
Tah. Gondia, Dist. Gondia. .... Respondents.
Shri H.S. Chitaley, Advocate for petitioner.
Shri B.M. Lonare, AGP for respondents.
Coram : B.P. Dharmadhikari &
Kum. Indira Jain, JJ.
Dated : 25
July, 2016.
th
ORAL JUDGMENT [ Per B.P. Dharmadhikari, J.]
Petitioner challenges judgment dated 28.03.2002 delivered by
2 Judg. WP 1667.02
the Maharashtra Administrative Tribunal, dismissing T.A. No.784 of
1992. This transfer application was initially presented to this Court as
Writ Petition No.666 of 1986. Challenge in said matter before this
Court and thereafter before the MAT was to an order of termination
dated 31.03.1986 issued by respondent no.2. As per that order, his
services were sought to be terminated w.e.f. 04.04.1986 after holding
that his performance was found most unsatisfactory. In Writ Petition
No.666/1986, this Court stayed the order of termination on 03.04.1986,
and hence, petitioner continued in service. After constitution of the
Maharashtra Administrative Tribunal, said Writ Petition was transferred
to its Nagpur Bench where it came to be registered as Transfer
Application No.784/1992. While dismissing that Transfer Application
on 28.03.2002, the Maharashtra Administrative Tribunal has found
order of termination simpliciter in nature and petitioner was found to be
appointed as an adhoc employee purely on temporary basis.
Because of this finding, it dismissed the Transfer Application.
3 Judg. WP 1667.02
2] Petitioner thereafter approached this Court by filing the
instant petition on 10.04.2002. It appears that the matter could not be
heard till 17.05.2002, and in the meanwhile, respondent no.2 vide
order dated 07.05.2002 brought an end to his service. Consequential
order was issued by respondent no.3 on 08.05.2002 &. Petitioner was
relieved. He amended his Writ Petition on 22.05.2002 to incorporate
challenge to this order dated 07.05.2002 and 08.05.2002. It is in this
background, that we have heard Shri Chitaley, learned counsel for the
petitioner and Shri Lonare, learned A.G.P. for respondents.
3] Learned Advocate Shri Chitaley for the petitioner by placing
reliance upon the judgment of Hon'ble Apex Court in the case of
Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I. of Medical
Sciences and another, reported at AIR 2002 Supreme Court 23 and
in the case of V.P. Ahuja vs. State of Punjab and others, reported at
(2000) 3 Supreme Court Cases 239 submits that, mere finding that the
4 Judg. WP 1667.02
petitioner was an Ad hoc temporary employee is not answer to the
order of termination dated 31-03-1986. According to him, the order is
stigmatic and on that ground only needed to be quashed and set
aside. He further submits that because the petitioner demanded his
salary for the month of November, 1985, he is being victimized. On
03-01-1986, he was given time of one month to improve and on
18-02-1986 there was a direction to hold preliminary enquiry. One
Shri Shirke conducted that enquiry and on 13-03-1986, about the
work of the petitioner, he has put the remark "fair". There is no other
enquiry and no other grading of the work of the petitioner. After this
report, within 17 days the impugned order of termination came to be
issued. It is, thus, for the false reasons.
4] He further contends that though the petitioner continued in
employment because of interim orders passed by this Court on
03-04-1986, mere fact that he continued on the strength of interim
5 Judg. WP 1667.02
orders was not sufficient to discard the subsequent evaluation of his
performance. He states that till termination in May, 2002, the
petitioner was given time bound promotion. His increments were
released regularly and he was also sent to Hyderabad for regular
training. In view of his performance, he was also given the benefit of
better pay scale. These facts on record have been thus lost sight of
by the Maharashtra Administrative Tribunal (hereinafter referred to as
"the MAT").
5] Our attention has been invited to Explanation-(viii) of Rule
5 of the Maharashtra Civil Services (Discipline and Appeal) Rules,
1979, to urge that the termination of the petitioner cannot be viewed as
termination simpliciter. The judgment of the Hon'ble Apex Court in the
case of State of U.P. and others vs. Ram Bachan Tripathi, reported at
AIR 2005 Supreme Court 3212 is relied upon to demonstrate what
constitutes the stigma.
6 Judg. WP 1667.02
6] By placing reliance upon the averments made in
paragraphs 29 and 29-B of the Writ Petition, the request is being
made to grant relief of reinstatement with full back wages & continuity.
7] Learned Assistant Government Pleader Shri Lonare
for the respondents, has invited our attention to the stand taken on
affidavit before the MAT by the respondents. He submits that the
petitioner was never regularly selected and appointed on permanent
basis. As such, he was always an Ad hoc employee continued
temporarily and till the receipt of duly selected candidates from the
Regional Sub-ordinate Services Selection Board. He had no right to
be absorbed or to any post. As such, it was not necessary to hold any
regular Departmental Enquiry against him and after giving him an
opportunity to improve. Because of the complaint received against
him, preliminary enquiry was conducted and in that enquiry as his
performance was found not satisfactory, by a non stigmatic order he
7 Judg. WP 1667.02
has terminated. He submits that the MAT has evaluated this stand
and accepted it. He, therefore, prays for dismissal of the Writ Petition.
8] In reply, learned Advocate Shri Chitaley for the petitioner
submits that the petitioner was selected as his name was sent by the
Employment Exchange after proper selection process. Not only this
but, thereafter, twice the scheme for regularizing the employees like
him was pronounced and in the list of employees selected for
regularization, the name of the petitioner figured. He contends that
these facts also demonstrate that the performance of the petitioner
was upto the mark.
9] The fact that the petitioner was appointed after his name
was sent for consideration by the Employment Exchange and after
holding necessary interview, is not in dispute. Though the
appointment order mentions that his appointment was on temporary
8 Judg. WP 1667.02
basis for the period of six months or then till the receipt of duly
selected candidates from the Selection Boards, the fact that after his
initial appointment by order dated 17-09-1983 he continued till
31-03-1986 when termination order was issued is not in dispute. After
that order also because of the interim stay granted by this Court he
continued to work till May, 2002. On 07-05-2002, because of the
adverse judgment delivered by the MAT on 28-03-2002, which is
impugned before this Court in the present Writ Petition, ultimately he
came to be terminated.
10] Though the petitioner has complained that he was
required to make a representation to the office of the Collector, Nagpur
pointing out that his salary for the month of November, 1985 was
withheld without any reason, it appears that on 08-12-1985 there was
some complaints about his working. We cannot in this jurisdiction for
the first time record a finding whether the complaint made by the
9 Judg. WP 1667.02
petitioner was first in point of time or then whether on account of said
grievance dated 08-12-1985, he decided to make representation. The
fact remains that his salary for the earlier month i.e. for November,
1985 was not received by him till 08-12-1985.
11] On 03-01-1986, he was given one month notice to
improve in his work in view of communication dated 26-08-1985
asking him to make improvement and a warning was given to him.
The communication dated 26-08-1985 is on the subject of non
imparting the training as per Rules to the students from Wireman
Department. It is general in nature and no prior instances or violation
or breach of any condition is pointed out therein. On 18-02-1986, one
Shri B.K. Shirke, Inspector, was asked to hold preliminary enquiry
against the petitioner and submit his report within 15 days. On
13-03-1986, the Principal of Industrial Training Institute, Katol has
informed the petitioner that during that inspection, the said inspector
10 Judg. WP 1667.02
has given a remark "fair". In view of that remark, the petitioner has
been asked to show the improvement in his work. On 31-03-1986,
the impugned termination order came to be issued. The contents of
said termination order are reproduced below :-
"On having held an enquiry into the training work
of Shri N.Y. Dhakate, Craft Instructor (Wireman)
Industrial Training Institute, Katol, his office work is
found to be very much unsatisfactory. And
therefore, as the services of Shri N.Y. Dhakate
are no longer required to this department, his
services are terminated w.e.f. 4-4-1986 (A.N.)"
In reference, it mentions letter dated 03-01-1986 giving the petitioner
time to improve and later communication dated 18-02-1986 informing
him about the decision to hold preliminary enquiry. It does not point
out any subsequent inspection or evaluation of the work of Petitioner.
12] Before this Court, the petitioner has placed an affidavit on
27-08-2009 and in that affidavit he has pointed out a list prepared by
the Principal of the Industrial Training Institute, Katol. In that list, the
11 Judg. WP 1667.02
names of various employees like the petitioner are mentioned. The
name of the petitioner is at Serial No.1 and against his name date
22-09-1983 has been shown as the date of first appointment. It is
also mentioned that his appointment was/is in accordance with the
prevailing rules. On 08-03-1999, a Government Resolution regarding
the regularization of irregular appointments under the jurisdiction of
the Regional Subordinate Services Selection Boards, District
Selection Committees and Employment Exchanges was issued. The
decision to regularize the services of 3761 employees was reached
and it was subject to the fulfillment of certain conditions like (1)
condition was that; such employee should have completed a
continuous service of one year as on 01-04-1999 and his conduct
should be good, (2) vacancies should be available and (3) roster
point/reservation needed to be adhered to. On 20-01-2001, the
Deputy Director of Vocational Training circulated a seniority list and
in that seniority list, the name of the petitioner is at Serial No.123. It
12 Judg. WP 1667.02
also mentions that he belongs to scheduled tribe. Other decision on
regularization is taken by the State Government on 19-03-1999 and
about 1061 temporary employees are found eligible for such
regularization. The conditions to be fulfilled are almost the same.
13] On 31-07-1991, the petitioner was deputed to Administrative
Training Institute, Hyderabad for training in wireman course and on
18-05-1999 he was given benefit of higher pay scale with effect from
22-09-1983 as he completed 12 years qualifying service.
14] It is, in this background, the challenge to the termination order
and to the judgment delivered by the MAT needs to be looked into.
15] In State of U.P. and others (supra), in paragraph 6, the
Hon'ble Apex Court observes that "stigma is understood to be
something that is detraction from the character or reputation of a
13 Judg. WP 1667.02
person. It is blemish, imputation, a mark or label indicating a deviation
from a norm."
16] In Pavanendra Narayan Verma (supra) the Hon'ble Apex
Court has considered three judicially evolved tests to determine
whether the termination is simpliciter or punitive. In paragraph 21
Hon. Apex Court explains that it is necessary to find out whether prior
to the termination there was (1) a full scale formal enquiry, (2)
whether it was into allegations involving moral turpitude or misconduct
and (3) whether it culminated in a finding of guilt. If all these three
factors are present, the termination is to be held punitive irrespective
of the form of the termination order. The Hon'ble Apex Court also
states that if any one of the three factors is missing, the termination
needs to be upheld. In V.P. Ahuja (supra), in paragraph 7, the Hon'ble
Apex Court has held that "a probationer, like a temporary servant, is
also entitled to certain protection and his services cannot be
14 Judg. WP 1667.02
terminated arbitrarily, nor can those services terminated in a punitive
manner without complying with the principles of natural justice".
17] Paragraph 6 of impugned judgment delivered by the MAT
shows that; (1) the petitioner was not a regularly selected candidate,
(2) he was appointed on temporary basis for specific duration, (3) his
appointment was subject to condition that the total period of service
would not exceed 364 days', (4) the appointment was purely on
temporary basis till a candidate selected by the constituted Selection
Board became available, (5) it also holds that the employer has found
that the performance of the petitioner was not satisfactory, (6) he was
given an opportunity to improve his performance, (7) he did not
improve, (8) preliminary enquiry was conducted and (9) in that
enquiry his performance was found not satisfactory.
18] In paragraph 8 of the judgment of the MAT, in view of its
15 Judg. WP 1667.02
finding on facts mentioned supra, it proceeded to consider whether the
impugned order of termination was punitive or not. It found that there
was no full scale formal enquiry conducted with a view to evaluate his
performance and there was no allegation of any moral turpitude or
misconduct. There was no inquiry culminating into a finding of guilt or
comission of any such misconduct by the Petitioner. It therefore
concluded that none of the three factors mentioned by the Hon'ble
Apex Court in its judgment in the case of V.P. Ahuja (supra), was
present. As such, the termination was not punitive and therefore, it
dismissed the challenge.
19] We can not ignore the fact that on 03-01-1986 or till the
decision to hold preliminary enquiry was reached on 18-02-1986, the
employer did not find it necessary to terminate the petitioner but gave
him an opportunity to improve. The preliminary enquiry was envisaged
to evaluate that performance or improvement That enquiry is held by
16 Judg. WP 1667.02
one Shri B.K. Shirke, Inspector of the Regional Office at Nagpur. It is
the case of the petitioner that he was not given any opportunity during
that enquiry and this fact is not in dispute. On 13-03-1986, the
Principal of the institute where the petitioner was working has sent
him a communication pointing out that said inspector has put a
remark "fair". He was directed to show improvement in his work of
imparting training. He also issued caution that in default, the suitable
action would be taken against him. The petitioner has pointed out
that the said inspector has inspected the work of 13 staff members
and he found 4 employees to be good, 8 to be fair and 1 employee to
be poor. This remark, therefore, does not support the defence that
the inspector found the performance unsatisfactory. An unsatisfactory
performance could not have been labelled as "fair". Even
communication dated 13-03-1986 directed the petitioner to show
improvement in his Government work of imparting training. He has
been threatened that the suitable action would be taken against him if
17 Judg. WP 1667.02
he failed to show improvement in his office work. Within 17 days
thereafter, the order of termination has been issued. The order of
termination does not show that after 13-03-1986 till 31-03-1986 there
was any development which established that the petitioner did not
improve or failed to show improvement. On the contrary, the reliance
on termination order is on enquiry conducted by Inspector Shri Shirke
only. The Deputy Director (respondent no.2 who has passed the
termination order) has observed that the office work of the petitioner
is found to be "very much unsatisfactory". This opinion is expressed
"on having held an enquiry" into the training work of the petitioner. It
does not even put on record the fact that said enquiry was only
perliminary inquiry & the Petitioner was not given any opportunity in it.
Any person reading this order will find it not simpliciter. In the light of
the language employed in termination order dated 31-03-1986 and
communication dated 13-03-1986 mentioned supra, we find
absolutely nothing on record to conclude that the work of the petitioner
18 Judg. WP 1667.02
was even unsatisfactory much less "very much unsatisfactory". The
MAT has not considered this aspect. Remark "fair" can not be
contrued as advese at all. Even in worst case, if the remark "fair" is to
be read as indicating unsatisfactory work, the opportunity to improve
given to the petitioner by the Principal of the Industrial Training
Institute cannot be ignored. The letter sent by the Principal of the
Industrial Training Institute on 13-03-1986 shows the assessment of
training work of the petitioner to be fair and still the petitioner has been
given opportunity to improve his office work. In termination order,
respondent no.2 records that Petitioner's office work was found to be
very much unsatisfactory.
20] The facts above, therefore, show that the termination order
is based upon the nonexistent or incorrect or false material.
21] Though the petitioner has continued in employment after
19 Judg. WP 1667.02
31-03-1986 upto 07-05-2002 due to the interim orders passed by this
Court, his performance during said period can not be ignored. It is
not even alleged to be unsatisfactory. During pendency of this petition
before this Court or before the MAT, no application was moved by the
respondents pointing out that as the performance of the petitioner is
not proper or it was necessary to terminate his services to employ a
suitable employee. There was no prayer made at any point of time for
vacation of interim orders. On the contrary, it is seen that, the
petitioner was selected for training, he was given annual increments
and also the benefits of higher pay scale after completing 12 years of
service. All these facts cumulatively show that the reason of "very
much unsatisfactory service" assigned by respondent no.2 is false &
cannot be accepted. MAT has discarded alltogether the service
rendered by the Petitioner after 31.03.1986 on the erroneous ground
that it was because of the interim orders of this Court in W.P.
666/1986.
20 Judg. WP 1667.02
22] Though the petitioner was not a permanent employee or
was not expressly placed on probation, it is apparent that he was
working against a permanent post. In absence of present litigation or
termination dated 31-03-1986, he could have been given benefit of
above mentioned policy decisions to regularize the services of the
employees who were recruited by relaxing the conditions of selection
through the Regional Sub-ordinate Services Selection Board. The
fact that the petitioner is temporary employee does not mean that his
employment can be put to an end on false or incorrect reasons
arbitrarily. Here we find that, for the false and non-existent reasons
his service has been terminated. The contention that as the petitioner
demanded his salary and moved a representation on 12-12-1985 for it,
his harassment started, needs to be kept in mind. If that be correct,
inference of victimization must be drawn as a false or incorrect reason
has been used to terminate the Petitioner.
21 Judg. WP 1667.02
23] While discussing the order of the MAT, we have noted
hereinabove nine circumstances noted by it and the conclusions
reached by it. In view of this discussion, we find that, the MAT has
not approached the controversy in right perspective. Merely because
the employee is temporary, it could not have held that the termination
in this case, is simpliciter. On the contrary, we find that in termination
order there is express mention of an enquiry conducted into training
work of the petitioner and thereafter a conclusion that his office work
was found to be very much unsatisfactory. When there is no material
with Employer to support this conclusion and in enquiry, it did not give
the petitioner any opportunity, such termination order cannot be
sustained. When the remark after inspection is "fair", it is apparent
that the Respondents have abused their power & acted highhandedly.
24] Accordingly, we quash and set aside the termination order
dated 31-03-1986 as also judgment delivered by the MAT on
22 Judg. WP 1667.02
28-03-2002. The respondents are directed to reinstate the petitioner
in service.
25] As the services of the petitioner were never regularized, the
relief of continuity cannot be given to him at this stage. However, it
appears that for the candidate like him, initially on 08-03-1999 and
thereafter on 19-03-1999, a scheme for regularization was evolved
and about 1061 temporary employees were to be considered for
regularization. In this situation, we direct the respondents to apply
those norms and to find out whether the services of the petitioner
could have been or can be regularized. If his services are found fit &
worth for regularization, he shall be given benefit of continuity in
service from the date of his initial appointment till his reinstatement.
26] Though the petitioner has requested for grant of full back
wages, in this situation, we grant him 50% back wages for the period
23 Judg. WP 1667.02
from 07-05-2002 till his reinstatement back in service.
27] Rule made absolute accordingly. Writ Petition is, thus,
partly allowed and disposed of. No costs.
JUDGE JUDGE
/
Dragon/ Rakesh Dhuria Deshmukh
24 Judg. WP 1667.02
C E R T I F I C A T E
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