Bombay High Court
Chandrashekhar Tukarampant ... vs The State Of Maharashtra Through ... on 24 October, 2016
Bench: Anoop V. Mohta
Rng 1
newwp5995.16 grp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5995 OF 2016
Chandrashekhar S/o Tukarampant }
Madankar
Age 37 years, Occu: Service,
R/o D-302, Bhumiraj Meadows, }
Plot no.42/43, Nr NHP School,
Sector-19, Airoli, Navi Mumbai-400 708 .. Petitioner
vs
1.State of Maharashtra ig }
Through its Principal Secretary
(Department of Energy)
Mantralaya, Mumbai-32. }
2. The Maharashtra State Electricity
Transmission Company Ltd }
(Through its Managing Director)
Prakash Ganga, 8th Floor,
Bandra (E) Mumbai-51. }
3. The Chief General Manager
(Human Resources) }
The Maharashtra State Electricity
Transmission Company Ltd
Prakash Ganga, 7th Floor, }
Bandra (E) Mumbai-51.
4.The Chief Engineer (HRD) }
The Maharashtra State Electricity
Transmission Company Ltd
Prakash Ganga, 4th Floor
Bandra (E) Mumbai-51. }.. Respondents
with
WRIT PETITION NO.5996 OF 2016
newwp5995.16 grp
Anup Udhav Lokhande
Age 37 Occu: Service
R/o 304,Swati Building, Taranjan Complex
Wayale Nagar, Kalyan (W) Dist Thane .. Petitioner
vs
1.State of Maharashtra }
Through its Principal Secretary
(Department of Energy)
Mantralaya, Mumbai-32. }
2. The Maharashtra State Electricity
Transmission Company Ltd }
(Through its Managing Director)
Prakash Ganga, 8th Floor,
Bandra (E) Mumbai-51. }
3. The Chief General Manager
(Human Resources) }
The Maharashtra State Electricity
Transmission Company Ltd
Prakash Ganga, 7th Floor, }
Bandra (E) Mumbai-51.
4.The Chief Engineer (HRD) }
The Maharashtra State Electricity
Transmission Company Ltd
Prakash Ganga, 4th Floor }
Bandra (E) Mumbai-51. .. Respondents
with
WRIT PETITION NO.6343 OF 2016
Harshal Radheshyam Malewar
Age: Major Occu: Service
R/o Sant Jagnade Nagar
Tumsar, Bhandara -441 902 .. Petitioner
vs
1.State of Maharashtra }
Through its Principal Secretary
(Department of Energy)
newwp5995.16 grp
Mantralaya, Mumbai-32. }
2. The Maharashtra State Electricity
Transmission Company Ltd }
(Through its Managing Director)
Prakash Ganga, 8th Floor,
Bandra (E) Mumbai-51. }
3. The Chief General Manager
(Human Resources) }
The Maharashtra State Electricity
Transmission Company Ltd
Prakash Ganga, 7th Floor, }
Bandra (E) Mumbai-51.
4.The Chief Engineer (HRD)
The Maharashtra State Electricity
}
Transmission Company Ltd
Prakash Ganga, 4th Floor }
Bandra (E) Mumbai-51. .. Respondents
with
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (Lodging) No.1461 of 2016
Rohan S/o Vijay Madshingikar
Age: 33 yrs, Occu: Service
R/o Shree Cooperative Hsg Sacty
96/2715, Kannamwar Nagar-2
Vikhroli East Mumbai-400 083 .. Petitioner
vs
1.State of Maharashtra }
Through its Principal Secretary
(Department of Energy)
Mantralaya, Mumbai-32. }
2. The Maharashtra State Electricity
Transmission Company Ltd }
(Through its Managing Director)
newwp5995.16 grp
Prakash Ganga, 8th Floor,
Bandra (E) Mumbai-51. }
3. The Chief General Manager
(Human Resources) }
The Maharashtra State Electricity
Transmission Company Ltd
Prakash Ganga, 7th Floor, }
Bandra (E) Mumbai-51.
4.The Chief Engineer (HRD) }
The Maharashtra State Electricity
Transmission Company Ltd
Prakash Ganga, 4th Floor }
Bandra (E) Mumbai-51. ig .. Respondents
Appearances:
Mr.S.B.Talekar with Mr.Vinod N.Tayade I/b Talekar
& Associates for Petitioners in W.P.Nos.5995/16, 5996/16, 6343/16
and for Petitioner in OSWP (L) No.1461/16
Mr.J.Reis Senior Advocate with Mr.Abhijeet A.Joshi
for Respondent nos.2 to 4.
Mr.V.N.Sagare AGP for State in all matters.
CORAM: ANOOP V.MOHTA &
G.S.KULKARNI,JJ
JUDGMENT RESERVED ON: 15 OCTOBER 2016
JUDGMENT PRONOUNCED ON: 24 OCTOBER 2016.
COMMON JUDGMENT
Per G.S.Kulkarni, J
1. Rule Returnable forthwith. Respondents waives service. By
consent of the parties and their request heard finally.
2. This batch of petitions challenge the orders passed by
newwp5995.16 grp
the respondent No.2-Maharashtra State Electricity Transmission
Company Ltd. (for short 'MSETCL') whereby the petitioners who
were selected and temporarily appointed as Additional Executive
Engineer (Transmission) (for short 'the said post") have been
removed from the said posts by the impugned orders. The impugned
orders are dated 20 May 2016 and qua the petitioner in Writ Petition
No.6343 of 2016 is dated 4 June 2016. Some of the petitioners who
had participated in the selection process for the said post were in-
service candidates and being removed by the impugned orders are
reverted to the post on which they were working prior to their
selection.
3. These petitions involve common issues of facts and law.
We have thus heard common arguments. Learned counsel for the
petitioner has advanced submissions in Writ Petition No.5995 of
2016. We therefore, proceed to decide these petitions by this
common judgment. On this background, we refer to the facts in writ
petition No.5995 of 2016.
4. The petitioner initially was appointed by MSETCL as
Junior Engineer (Transmission) by an order dated 20 May 2010.
newwp5995.16 grp
Subsequently, he was promoted on the post of Assistant Engineer
(Transmission) on 8 November 2013 and continued in service of the
MSETCL.
5. In January 2014 MSETCL published Recruitment
Advertisement No.01 of 2014 advertising various posts in technical
and on-technical cadres which interalia included 76 posts of Deputy
Executive Engineer (Transmission). 114 post of Assistant Engineer
(Transmission) and 247 post of Junior Engineer (Transmission).
These Petitions concern the post of Deputy Executive Engineer
(Transmission). The petitioner as also the other petitioners in the
connected petitions, applied for the post of Deputy Executive
Engineer (Transmission) some as in-service candidates and one as a
direct recruit. Under the selection procedure, the MSETCL on 26
February 2014 notified that an on-line test would be held on 12
March 2016.
6. Thereafter the MSETCL issued a Notification dated 29
May 2014 calling upon the candidates to submit documents for
deciding the eligibility of candidates, under which various personal
documents were to be submitted on or before 18 June 2014. The
newwp5995.16 grp
petitioners submitted the necessary documents showing their
eligibility which included the documents showing experience of
seven years in power transmission gained by him, as prescribed. As
an illustration the Petitioner was issued experience certificates by
one Ashtavinayaka Construction dated 30 June 2005 and 25 May
2010 and another experience certificate dated 10 June 2014 issued
by the MSETCL. These certificates were pertaining to different
periods of work experience. Similarly experience certificates were
submitted by other petitioners.
7. MSETCL issued a schedule for interview by a notification dated
27 October 2014. It was informed that personal interview of short-
listed candidates would be taken from 10 November 2014 to 19
November 2014. The petitioners being shortlisted appeared for
interview on 15 November 2014. The result of the recruitment was
declared by the Chief General Manager (HR) of the MSETCL on 1
December 2014 and the select list and wait list candidates for the
post of Deputy Executive Engineer (Transmission), the nomenclature
of which was revised as Additional Executive Engineer
(Transmission) was notified. The name of the petitioner was placed
at serial no.54 in the list of successful candidates. In pursuance of the
newwp5995.16 grp
recommendation of the Selection Committee, the Chief Engineer
being the appointing authority issued an Office Order No.18 dated 2
February 2015 appointing the petitioner to the post of Deputy
Executive Engineer (Transmission)/revised designation Additional
Executive Engineer (Transmission). The petitioner joined the new
post on 22 February 2015. Under the very selection procedure the
other petitioners were also selected and appointed and they also
joined the new post.
8. The case of the petitioners is that subsequent to the
appointments of the petitioners, MSETCL received several complaints
regarding gross irregularities in the recruitment process under the
said Advertisement No.01 of 2014 and more particularly about
false/bogus experience certificates submitted by the selected
candidates. In pursuance to these complaints, the Vigilance and
Security section of the MSETCL issued notices to the employers of
the respective selected candidates who has issued experience
certificates and sought information about the genuineness of the
experience certificates issued by them. The Chief Vigilance Officer
sought point-wise reply/information/documents from the petitioner's
erstwhile employer-Ashtavinayaka Construction in regard to the
newwp5995.16 grp
experience Certificates issued to the petitioner. As the petitioner
was issued experience certificate as a Site Supervisor/Site Sub-
Engineer,Trainee Engineer, Site Engineer and Assistant Project
Manager respectively by Ashtavinayaka Construction, it accordingly
submitted information to the MSETCL about the said experience
certificates and the appointment letter issued by them to the
petitioner. On the basis of the information which was received from
Ashtavinayaka Construction, the Chief Engineer (HRD) and the
Appointing Authority of the MSETCL issued a show cause notice
dated 25 April 2016 calling upon the petitioner to show cause why
he should not be demoted from the post of Additional Executive
Engineer (Transmission) on the ground that the experience
Certificates submitted by the petitioner were not genuine and called
upon the petitioner to submit an explanation within seven days from
the date of receipt of the show cause notice. The petitioner by his
letter dated 9 May 2016 submitted his reply to the show cause notice
denying that the experience certificate submitted by him were fake
and bogus. The Appointing Authority of respondent no.1 considered
the reply to the show cause notice and passed the impugned order
dated 20 May 2016 demoting the petitioner from the post of
Additional Executive Engineer (Transmission) to the original post of
newwp5995.16 grp
Junior Engineer as held by the petitioner. The other petitioners are
issued similar orders of removal after a similar procedure being
followed by the MSETCL .
9. The contention of the petitioners is that no hearing was
granted to the petitioners before this removal order was passed. It is
submitted that the impugned order is penal in nature on a alleged
misconduct of furnishing false documents in the selection process.
The contention is that a departmental inquiry ought to have been
conducted before issuing the impugned order. It is submitted that the
experience certificates were genuine certificates and that on the basis
of certain material the petitioner could have demonstrated that these
documents were not bogus. The petitioners would contend that
such action has been resorted by the MSETCL against many other
appointees and that writ petitions in that regard are filed before the
Nagpur and Aurangabad Bench of this Court.
10. The MSETCL has appeared and has filed a reply affidavit
dated 30 July 2016 of Shri Mangesh Madhukar Shinde Assistant
General Manager (HR-T) as also an additional affidavit dated 5
October 2016 opposing the petitions. It is the case of the respondents
newwp5995.16 grp
that the experience certificates as submitted by the petitioners were
not genuine or were bogus as revealed under an investigation. In the
facts of the petition we are discussing, the petitioner while
submitting documents under the selection process submitted
experience certificate dated 30 June 2005 issued by Ashtavinayaka
Construction, Navi Mumbai showing experience for the period from
1 January 2005 to 30 June 2005 and Experience Certificate dated 25
May 2010 for the period of 10 June 2007 to 9 February 2008 and
from 10 February 2008 to 9 February 2009 and from 10 February
2009 to 25 May 2010. It is stated that the MSETC issued a letter to the said
previous employer-Ashtavinayaka Construction seeking details of the work
done, proof of salary and provident fund etc so as to ascertain as to
whether the petitioner was genuinely in the service of the said employer.
This letter was responded by Ashtavinayaka Construction by its letter
dated 29 July 2015 giving the details of the work experience of the
petitioner and a copy of the appointment letter dated 10 February 2008
addressed to the petitioner. The information did not match with the
experience certificates. The employer did not provide any details on
salaries and other details as requested by the MSETCL. The case of the
MSETCL is that the petitioner accordingly, had failed to prove that the
experience certificates submitted by the Petitioner were not acceptable and the
newwp5995.16 grp
petitioner was accordingly issued a show cause notice. In reply to the show
cause notice, the petitioner could not justify by producing the salary
slips and other documents to show that his employment was genuine
and the experience certificate depicted truth of the experience
contained therein. It is the case of MSETCL that when the petitioner
earlier applied to the post of Junior Engineer by an application dated
12 August 2009, the petitioner did not mention anything about the
experience prior to 2009 as claimed by the petitioner under the
Experience Certificate issued and obtained from Ashtavinayaka
Construction, Navi Mumbai. In fact the petitioner had written ' Nil
Remark' in the column of experience. The petitioner for the first
time used the said experience certificates showing experience prior
to 2009 to secure appointment under Advertisement No.01/2014 in
question. The MSETCL accordingly states that their action of
issuance of the impugned order was justified and is taken as
permissible under the relevant clauses of the Recruitment
Notification as also the Rules, and Regulations pertaining to
recruitment as also the Service Regulations.
11. In the additional affidavit, the MSETCL would point
out that in pursuance of the vigilance investigation of the documents
newwp5995.16 grp
of the candidates appointed under the recruitment process under
Advertisement No.01/2014, it was revealed that out of the total 68
candidates appointed only 18 candidates were found to have
requisite experience. Remaining 50 candidates were subjected to
further scrutiny. It is stated that out of these 50 candidates, 14
candidates were issued show cause notices and documents of 9
candidates are still under scrutiny. It is stated that out of 41
candidates to whom show cause notices were issued, reply of 3
candidates were found to be satisfactory and hence no adverse action
was taken against them. It is stated that reply of 38 candidates was
found to be unsatisfactory as these candidates could not prove
requisite experience. Out of these 38 candidates, 35 candidates were
departmental candidates and they were removed from the post by a
letter dated 20 May 2016 and 4 June 2016 which has been
impugned in the present petition. The MSETCL has stated that out
of the 38 candidates, 35 candidates were in-service candidates and
were having a lien on their previously held posts and thus were
reverted to the previously held post and 3 candidates being outsiders
appointed under direct recruitment whose reply was unsatisfactory
and who could not prove the requisite experience were removed
from the posts. It is stated that out of 38 candidates except the
newwp5995.16 grp
petitioner and four other candidates, all other candidates have joined
the posts to which they were reinstated. The MSETCL in this reply
affidavit have also justified their action on the basis of certain
regulations. The relevant regulations would be Recruitment
Regulations of the respondents as read with provisions of MSETCL
Employees' Service Regulations,2012.( for short the ' 2012 Service
Regulations').
12. In the rejoinder-affidavit, as filed on behalf of the
petitioner, the contentions of the MSETCL are denied on similar
grounds as set out in the petitions. The petitioner has placed
reliance on 2012 Service Regulations to urge that a disciplinary
enquiry was required to be undertaken by the MSETCL before
passing the impugned order. We would deal with these Service
regulations after we note the submissions as urged on behalf of the
above parties.
13. Learned counsel for the petitioner submits that the
impugned order passed by the MSETCL is arbitrary as it imposes a
major punishment which could not have been imposed without a full-
fledged departmental inquiry. It is submitted that no hearing was
newwp5995.16 grp
granted to the petitioner. There is thus, a gross violation of the
principles of natural justice. An opportunity of a personal hearing
was necessary so that the petitioner could have justified the
experience certificates which according to them were genuine
certificates. Learned counsel for the petitioner has placed reliance on
the 2012 Service Regulations, as also made submissions on the
Maharashtra State Electricity Board Classification and Recruitment
Regulations, 1961 ( for short the 'Recruitment Regulations, 1961')
as relied upon on behalf of the MSETCL.
14. We may note that the primary submission as urged by
the learned counsel for the petitioner is that of breach of principles
of natural justice as no hearing was granted by the MSETCL before
issuance of the impugned order and secondly that such drastic action
could not have been taken without holding a full-fledged
departmental inquiry. Learned counsel for the petitioners have relied
on the following authorities in support of the case of the petitioners .
1. Union of India &ors vs M.Bhaskaran1 ; 2.Indian Bank vs Satyam Fibres
(India) Pvt.Ltd.2, 3. State of H.P. vs J.L.Sharma &anr 3; 4. Karnataka State
Road Trans.Corpn &anr vs S.Manjunath4; 5. Harbanslal Sahnia &anrvs
1 1995 Supp (4)SCC 100
2 (1996) 5 SCC 550
3 (1998) 1 SCC 727
4 (2000) 5 SCC 250
newwp5995.16 grp
Indian Oil Corpn &ors 1; 6.Secy.Dept of Home Sec.A.P. vs V.B.Chinnam,
Naidu2; 7. Bhaurao Dagdu Paralkar vs State of Maharashtra &ors. 3; 8.Punjab
State Elec.Board vs Leela Singh4; 9.UCO Bank &anr vs Rajinder Lal Capoor 5
10.Punjab National Bank vs Astamija Dash 6 11 CIDCO vs.Vashudha
Gorakhnath Mandevlekar7 12Kamal Nayan Mishra vs State of M.P 8 13 Kranti
Associates P.Ltd vs Masood Ahmed Khan9 14 Bhupendra Nath Hazarika vs
State of Assam1015 Ratnesh Kumar Choudhary vs Indira Gandhi Ins.of
Me.Sciences11 16 Star Tele.News Ltd vs Union of India 1217 State of Jharkhand
vs Tata Steels &ors1318 A.P.State Council of Higher Education vs Union of
India14
15. On the other hand, learned senior counsel for the
MSETCL would submit that the impugned order is wholly justified
in-as-much as the petitioners are guilty of suppression and of
concealing information in participating in the recruitment process.
Relying on Regulation 16 of the Recruitment Regulations, 1961, it is
submitted that as the petitioner knowingly furnished particulars
which were false and suppressed material information, the
consequence would be that the petitioners would be barred from
being appointed by the MSETCL and were liable to be disqualified
1 (2003) 2 SCC 107
2 (2005) 2 SCC 746
3 (2005) 7SCC 605
4 (2007) 12 SCC 146
5 (2008) 5 SCC 257
6(2008) 14 SC 370
7(2009) 7SCC 283
8(2010) 2 SCC 169
9(2010) 9 SCC 496
10(2013) 2 SCC 516
11(2015) SCC online SC 954
12(2015) 12 SCC 665
13(2016) SCC online SC 135
14(2016) 6SCC 635
newwp5995.16 grp
and now to be removed from its Reliance is also placed on Service
Regulations 2012 which according to the respondents justify their
action. During the course of hearing of these petitions the learned
senior counsel however submitted that the MSETCL, without
withdrawing the impugned removal orders the MSETCL was willing
to give one more chance to the Petitioners to produce any fresh
material to show that the experience certificates submitted by them
are genuine. He submitted that the MSETCL would also grant a
personal hearing and if the petitioner is in a position to demonstrate
that the certificate is genuine the MSETCL would fairly cancel the
removal order. This suggestion as made on behalf of the MSETCL
was not accepted by the petitioners and the petitioners informed the
court that they wished to press their respective petitions.
16. Before we proceed to consider the rival submissions, it
would be profitable to note the terms and conditions of
Advertisement No.01 of 2014, the appointment order and the
relevant rules and regulations. The Employment Advertisement
No.01 of 2014 advertised inter alia 18 posts of Executive Engineer
(Transmission), 78 posts of Deputy Executive Engineer
(Transmission), 114 posts of Assistant Engineer (Transmission) and
newwp5995.16 grp
247 posts of Junior Engineers (Transmission). For the posts of
Deputy Executive Engineers (Transmission) the pre-requisite
qualification as on 29 January 2014 was an experience of seven
years in power transmission to be possessed by a candidate. Clause 3
(iii) contemplated that departmental candidates possessing a degree
in Engineering/Technology in any other discipline should fulfill
conditions of required experience and they will have to appear for
the written test, personal interview etc consisting of syllabus of
Electrical Engineering and compete along with other candidates.
General Conditions in the said Advertisement are also required to be
noted and more particularly conditions requiring the candidates to
submit certificates, conditions pertaining to eligibility criteria
submission of documents/certificates and conditions in case of
furnishing of the incorrect and false particulars. These conditions are
conditions nos.1,3 and 6 which reads thus:
1. " Before filing up the application form candidates should
ensure that they fulfill all eligibility criteria as mentioned in the
advertisement. Their admission to all the stages of the
recruitment process will be purely provisional subject to
verification and satisfying the prescribed eligibility criteria as
mentioned in this advertisement.
3. Candidates are not required to submit any
document/certificate etc (Except copy of Identity Proof) prior to
on line written test. Company will take up verification of
eligibility conditions with reference to original documents of those
candidates who have qualified for personal interview. The
newwp5995.16 grp
documents/certificates will be verified at the time of personal
interview and prior to issuances of offer letter. It is responsibility
of the candidates to produce all the required
documents/certificates for proving his/her eligibility at the time
of personal interview.
(6) If the candidate knowingly or willfully furnishes incorrect
or false particulars or suppresses material information, he/she
will be disqualified at any stage of recruitment process and if
appointed, shall be liable for dismissal from the company's service
without any notice or assigning any reasons whatsoever."
17. On 29 May 2014 a notification was issued by the
MSETCL as regards submission of documents for deciding the
eligibility of the candidates. Condition nos.7 and 8 are relevant
which read thus :
"7. Non submission of required documents and those not duly
attested by Govt.Gazetted Officer/Principal of Colleges/Post
Master or by Superintending Engineer or its equivalent Officer of
MSETCL (for departmental candidates of MSETCL only)are liable
to be summarily rejected. In no case, self-attestation will be
entertained.
8. If the candidate knowingly or willfully furnishes incorrect
or false particulars or suppresses material information, he/she
will be disqualified and if appointed shall be liable for dismissal
from the company 's service without any notice or assigning any
reasons whatsoever. "
18. The General interview notice dated 27 October 2014
also provided that candidates should furnish original documents
along with attested copies. Clause 6 of the call letter provided for
consequences if the candidate supplies incorrect information or
conceals facts/distorts any material information, to provide that the
newwp5995.16 grp
candidature will be canceled at any time during the entire process.
Clause 6 reads thus:
6. "Call letter for personal interview is purely provisional and
does not confer any automatic right of possible employment with
the company. If at any stage, information provided by candidate
is found incorrect/incomplete or is not in conformity with
eligibility criteria as specified in the advertisement for the applied
post, or if it is found that candidate has concealed distorted any
material information, his/her candidature will be cancelled at
any time during the recruitment process."
19. In the interview call letter coupled with the intimation
to bring all original documents, the following clause was provided :
5. " After verifying certificates/documents if it is found that you
are not eligible according to the criteria,stipulated in the
advertisement, you may not be allowed for appearing at personal
interview. So you may please ensure that you are eligible for
the post applied."
20. Clause 16 provided that selection of the candidates was
purely on provisional basis subject to conforming of the pre-requisites
and other conditions notified in the advertisement. Clause 16 reads
thus:
16. " The selection of the candidate is purely on a provisional basis
subject to conforming of the pre-requisites and other conditions
notified in the advertisement. If it is found that any candidate is not
meeting the requirement of pre-requisites or not fulfilling any of the
conditions or he/she has knowingly or willfully furnished incorrect or
false particulars/fake certificates or suppressed material information,
his/her selection is liable to be cancelled and if appointed, shall be
liable for dismissal from the Company's service without any notice or
assigning any reasons whatsoever."
newwp5995.16 grp
21. Office Order no.18 by which the petitioners were
appointed on the respective posts provided " terms and conditions "
to state that the petitioners are appointed as Additional Executive
Engineer on purely temporary basis until further orders. Further for
other terms and conditions, they shall be governed by the 2012
Service Regulations, and by such other regulations as applicable to
the employees of the company. Clause nos.1 and 3 of the
appointment order are relevant which reads thus :
(1) " The above Engineers are appointed as Additional Executive
Engineers (Trans) on purely temporary basis until further orders.
(3) For other terms and conditions they shall be governed by MSETCL
Employees' Service Regulations 2012 and by such other rules and
regulations as are applicable to the employees of the Company."
22. Thus the appointment order makes a reference to the
service regulations as noted above and as also the MSETCL contends
to have taken action on the basis of the powers conferred on these
service regulations. It would be profitable to note the relevant
service regulations. We first note the provisions of 2012 Service
Regulations, 2012 which were brought into effect from 1 June 2012.
23. Chapter II Regulation 9 is the Definitions and
Interpretations clause from which some definitions are required to be
newwp5995.16 grp
noted as under :-
(33) " Permanent Employee" is a person who after satisfactory
completion of the prescribed period of probation has been confirmed in
one of the regular cadres or posts of the Company."
(36) "Probationer" means a person appointed provisionally in or
against a permanent or temporary post and who has yet to complete
the period of probation."
(40) "Temporary Employee" means a person other than a permanent
employee on the Company's Establishment appointed to officiate in a
temporary or a permanent post and exclude a person borne on Work-
Charged establishment and the Nominal Muster Roll."
24.
Chapter III of 2012 Service Regulations provide for
General Conditions Of Service. Relevant regulation is regulation 12
under which the MSETCL states to have passed the impugned order.
Regulation 12 reads thus :
12. Wherever it is found that an employee, who was not qualified
or eligible in terms of the Recruitment Regulations etc for initial
recruitment in service or had furnished false information or
produced a false certificate in order to secure appointment, he
shall not be retained in service. Before terminating the services of
such employee, a Show Cause Notice shall be served on him by
giving 7 days time to submit the reply. If no reply is submitted
within given time or if reply is submitted within give time by the
employee, after considering the same, his services should be
terminated and he should be relieved form the services of the
Company. The Format-3 and Format-4 of Show Cause Notice and
Service termination order, respectively may be referred to for
guidance. "
25. Regulation 13 (g) provides that after satisfactory
completion of probation, a probationer may be appointed
substantively or to officiate in a permanent or a temporary post as
newwp5995.16 grp
the Competent Authority may decide.
26. Regulation 88 provides for Procedure for Dealing with
Acts of Misconduct on which reliance has been placed on behalf of
the petitioner. Petitioners also rely on Regulation 90 which
provides for Summary Proceedings to contend that these are not
followed by the MSETCL before passing the impugned order.
27. MSETCL has relied on Regulation 16 of the Recruitment
Regulations, 1961 which according to them are relevant in view of
the clear language of Regulation 12 of 2012 Regulations. Regulation
16 of the Classification Regulations, 1961 reads thus :
16. "Any candidate who is found to have knowingly furnished any
particulars which are false or to have suppressed material information
of a character which, if known would ordinarily have debarred him
from getting appointment in the service of the Board is liable to be
disqualified and if appointed, to be dismissed from service. "
28. In the context of the above rules the submission on
behalf of the MSETCL is that the petitioners are not confirmed
employees on the posts in question, and thus the MSETCL is
completely within its rights, power and authority to adopt the
procedure as contemplated under Regulation 12 of 2012 Service
Regulations read with regulation 16 of the Recruitment Regulations,
newwp5995.16 grp
1961 to issue a show cause notice to the petitioners, and not being
satisfied with the explanation as received from the petitioners, pass
an order as impugned in the present petition. It is submitted that in
view of the clear position envisaged by Regulation 12 of the 2012
Service Regulations, read with regulation 16 of the Recruitment
Regulations, 1961, the petitioners cannot claim a legal right of a
departmental inquiry to be held. It is thus, the contention of the
respondents that the impugned order has been passed completely in
consonance with the said Regulations and the writ petition therefore,
deserves to be dismissed.
29. We find much substance in the contentions as urged on
behalf of the respondents. The nature of the appointment of the
petitioner is clear from the appointment order dated 28 May 2010. It
is a clearly a temporary appointment. A temporary employee has
been defined under the 2012 Service Regulation under Chapter II
clause (40) to mean a 'person' other than a permanent employee
on the company's establishment appointed to officiate in a
temporary or a permanent post and exclude a person borne on
Work Charged establishment and the Nominal Muster Roll.'
Significantly, Regulation 33 also defines a 'permanent employee' to
newwp5995.16 grp
mean "a person who after satisfactory completion of the prescribed
period of probation has been confirmed in one of the regular
cadres or post of the company." The petitioners also do not fall in
Note 1 or Note 2 below the said definition of a ' permanent
employee.' The appointment order also does not make a reference
that the petitioners were appointed on probationary basis. If they
were appointed to be on probation, then it was necessary that after
completion of probation, they would be issued a confirmation order.
A cumulative reading of these definitions and the appointment order
issued to the petitioners clearly indicate that the petitioners were
temporary appointees or in other words, the petitioners cannot claim
any benefits, a permanent employee can avail under the Rules and
Regulations.
30. In the above context, Regulation 12 of the 2012 Service
Regulations (supra) becomes relevant. Regulation 12 as we have
noted above, clearly provides that whenever it is found that an
employee who was not qualified or eligible in terms of the
Recruitment Regulations etc, for initial recruitment in service or had
furnished false information or produced a false certificate in order to
secure appointment, he shall not be retained in service. However,
newwp5995.16 grp
this Regulation contemplates that before terminating the service of
such an employee, a Show Cause Notice shall be served on him by
giving 7 days time to submit the reply and if no reply is submitted
within given time or if reply is submitted within given time by the
employee, after considering the same, his services should be
terminated and he should be relieved from the services of the
company. This Rule also prescribes Format-3 and Format-4 of Show
Cause Notice and Service termination order, respectively may be
referred for guidance. The contention on behalf of the MSETCL that
Regulation 12 of Service Regulations takes within its purview and
incorporates the provisions of Regulation 16 of the Classification and
Recruitment Regulations, 1961 in our opinion, is required to be
accepted which is clear from a plain reading of Regulation 12 which
clearly refers to Recruitment Rules. Regulation 16 of the
Recruitment Rules 1961 as noted above provides that a candidate
who is found to have knowingly furnished any particulars which are
false or to have suppressed material information of a character which
if known, would ordinarily have debarred him from getting
appointment in the service of the Board and that such a candidate is
liable to be disqualified and if appointed, to be dismissed from
service. This position under both these Regulations, clearly indicate
newwp5995.16 grp
that there was sufficient power and authority with the MSETCL to
issue a show cause notice once they were satisfied from the materials,
that the petitioners had either submitted false documents or had
suppressed information or such information was false. Now, coming
to the aspect of the adequate and/or sufficient notice of this clear
position to the participants/petitioners in the appointment process. It
is clear from the various clauses/ terms and conditions of the
different notifications we have noted above that the petitioners had
sufficient notice of the action which can be taken by the MSETCL, in
case of any false information or suppression of fact in the recruitment
process. The Employment Advertisement No.01 of 2014 in clause 6 of
the General Conditions had categorically provided that if a candidate
knowingly or willfully furnish incorrect or false or suppressed
material information,he/she should be disqualified at any stage of
the recruitment process and if appointed shall be liable to be
dismissed without any notice or assigning any reasons whatsoever.
Further, the Notification of the respondents issued in regard to the
submission of documents by the candidates to decide their eligibility
also reiterated the said condition as per clause 8 of the said
Notification appearing at page 55 of the paper book. Further
precaution is also taken by the Corporation to have relevant clauses
newwp5995.16 grp
in the appointment order namely Office Order No.18 (temporarily
appointing the petitioners) wherein in the terms and conditions, it
was stated that the appointments were purely on temporary basis
until further orders and that the same were governed by 2012
Service Regulations and such other Rules and Regulations as
applicable to the employees of the company. This itself indicates that
the appointment of the petitioners were subjected to further
scrutiny/process only after satisfactory completion of which the
MSETCL would issue order appointing the petitioners as its
permanent employees. It is thus, clear that the petitioner cannot
have any quarrel in the MSETCL invoking these
conditions/regulations if the MSETCL has found that the petitioners
had knowingly or willfully furnished false particulars and the
consequence which has been provided for is dismissal from service
without any notice or assigning any reasons whatsoever. The
MSETCL had received complaints in regard to bogus Experience
Certificates submitted by the candidates/petitioners under a vigilance
inquiry. Accordingly information was sought from the employers and
only after ascertaining that the certificates which were submitted did
not reflect the correct position of experience the MSETCL decided to
initiate action and for this purpose issued to the petitioners the show
newwp5995.16 grp
cause notice. The petitioners replied to the said show cause notice
and tried to justify the experience certificates. However, as the
material with the MSETCL was sufficient in each of these cases to
show that the experience certificates issued did not reflect the correct
experience the respondents invoking the powers as available in
Regulation 12 of the 2012 Service Regulations and all various clauses
of the advertisement and other connected notifications, the MSETCL
passed the impugned orders cancelling the appointment of the
petitioners and in respect of those petitioners who were already in
the service of the respondents they were reverted to the posts which
they were holding prior to the appointment.
31. We do not find any illegality or perversity in this
approach of the MSETCL. This for the reason, as noted above there
was sufficient power to take such an action. In fact, the MSETCL
have followed the mandate of 2012 Service Regulations read with
regulation 16 of the Recruitment Regulations, 1961 and only after
an opportunity to show cause was given to the petitioners, the
impugned order has been passed. It is not the case that there is no
material which was available to the respondents. Whatever material
was available was stated and put to the petitioner in the show cause
newwp5995.16 grp
notice. The petitioners were not permanent employees and were
granted only temporary appointments and therefore, the case of the
petitioner that a departmental inquiry ought to have been conducted
cannot be accepted.
32. In our opinion, powers which were available to the
MSETCL under the 2012 Service Regulations read with Recruitment
Regulations, 1961 and that the MSETCL would be justified exercising
these powers in the fact situation. We therefore, see no arbitrariness
or illegality in the impugned action of respondents.
33. Learned counsel for the petitioners has relied on
number of decisions on the legal propositions canvassed firstly on the
issue that a departmental inquiry was necessary and only after the
inquiry is undertaken, the order of removal could have been passed.
Secondly, on the proposition that when there was a question of fraud
the same was required to be established by leading evidence. The
third set of authorities as referred by the learned counsel for the
petitioner is that the Service Regulations are required to be
interpreted harmoniously. Fourthly, a reasoned and administrative
order is required to be passed. The decisions relied upon by the
newwp5995.16 grp
learned counsel for the petitioners lay down certain principles which
are established with which there cannot be any disagreement, but for
the purposes of this case, they are academic.
34. In the facts of the case and the reasons as we have set
out and more particularly that the petitioners being appointed as
temporary employees till further orders and no rights as would be
available to a permanent/regular employees would be available to
the petitioners, we have come to a considered conclusion that a
departmental inquiry was not necessary and that the Service Rules
are appropriately applied by the MSETCL as there was sufficient
material for the respondents to initiate action under 2012 Service
Regulations read with Regulation 16 of the Recruitment Regulations,
1961. It is not a case that the MSETCL had no material against the
petitioners about the false or incorrect information supplied by the
petitioners or suppression of material and/or bogus certificates
submitted to take advantage of the recruitment process. In coming
to the above conclusions, we are supported by decision of the
Supreme Court in Union of India vs M.Bhaskaran reported in 1995
Suppl (4) SCC 100 where their Lordships held thus :
"6.............. Therefore, it is too late in the day for the
respondents to submit that production of such bogus or forged
newwp5995.16 grp
service cards had not played its role in getting employed in
railway service,. It was clearly a case of fraud on the appellant-
employer. If once such fraud is detected, the appointment
orders themselves which were found to be tainted and vitiated
by fraud and acts of cheating on the part of employees were
liable to be recalled and were at least voidable at the option of
the employer concerned."
Though in the facts of that case, as the respondents had
continued for long years in service and their Employer-Railway on its
own volition had thought it appropriate to hold a departmental
inquiry and there was no dispute in this context, nonetheless the
Court observed that respondents therein were not justified to obtain
such fradulent employment orders. The Supreme Court observed that
if any lenient view is taken then it would amount to putting
premium on dishonesty and sharp practice which in the facts of the
could not have been permitted.
35. Learned senior counsel appearing for the respondents
has relied on a recent decision of the Supreme Court in Avtar Singh
vs Union of India reported in 2016 (7) Scale 378 wherein the
Supreme Court considering the conflict of opinions in the various
decisions of the Division Benches of the Supreme Court, on the
question of suppression of information or submitting false
information in the verification form in securing employment held
newwp5995.16 grp
that only in case, if an employee is confirmed in service, holding of
departmental inquiry would be necessary before passing order of a
termination/dismissal order on the ground of suppression or
submitting false information in verification form. The observations
of the Court in para 25 of the decision are required to be noted and
reads thus:
25." The fraud and misrepresentation vitiates a
transaction and in case employment has been obtained
on the basis of forged documents, as observed in
M.Bhaskaran's case (supra) it has also been observed in
the reference order that if an appointment was procured
fradulently, the incumbent may be terminated without
holding any enquiry, however we add a rider that in
case employee is confirmed, holding a civil post and
has protection of Article 311 (2) due inquiry has to
be held before terminating the services. The case of
obtaining appointment on the basis of forged documents
has the effect on very eligibility of incumbent for the job
in question, however, verification of antecedents is
different aspect as to his fitness otherwise for the post in
question. The fradulently obtained appointment orders
are voidable at the option of employer, however,
question has to be determined in the light of the
discussion made in this order on impact of suppression
or submission of false information."
(Emphasis supplied)
36. During the course of hearing of these petitions as noted
above, the learned senior counsel appearing for the respondents has
fairly submitted that notwithstanding the orders of removal being
passed against the petitioners, the MSETCL is still agreeable to grant
newwp5995.16 grp
to the petitioners a second opportunity to place such further material
for consideration of the respondents. Learned Senior Counsel on
instructions, has submitted and in our opinion, fairly that one more
chance would be granted to the petitioners to produce such material
which would be gone into by the MSETCL and if it is found that such
material would justify claim of the petitioners for their appointment,
then the MSETCL in that case would recall the removal order and re-
instate the petitioners. The suggestion is fair. We therefore, think it
appropriate that the concerned petitioners if they have any further
documents which would justify their claim and eligibility for
appointment in the posts in question, can make such representation
to the MSETCL within a period of two weeks from today and the
same can be inquired into and considered by the MSETCL after a
personal hearing to the petitioners and an appropriate decision in
that regard can be taken .
37 Before parting we may note a regrettable facet in the
conduct of the MSETCL which in our opinion touches the
administration of justice. Though we have come to the above
conclusion however, we cannot lose sight of the ex-parte-interim
order dated 13 June 2016 passed by this Court, in three of the writ
newwp5995.16 grp
petitions whereby we had stayed the impugned removal orders and
that the stay has continued to remain in operation till date. It was the
bounden duty of the respondents to have acted in conformity with
the interim orders passed by this Court. However, for reasons and
which the MSETCL think to be justified, the petitioners were not
permitted to join duties. The MSETCL could have taken out an
application for vacating the orders and /or sought stay of the said
orders. However we do not find any such substantive application on
record of these petitions. Such an approach from a public body in our
opinion, was inappropriate. In these circumstances, though the
petitioners in these petitions have not discharged their duties, we feel
it appropriate and in the interest of justice, that these petitioners are
required to be compensated by directing the MSETCL to pay an
amount equivalent to the salary and allowances of the post in
question on which they were selected and appointed which the
petitioner otherwise would have earned if the MSETCL were to act in
compliance of the interim orders.
38. In the light of the above discussion, we pass the
following order :
(i) The respondent-MSETCL was within its right, authority
newwp5995.16 grp
and power to issue the impugned orders without requiring a
departmental inquiry to be undertaken against the petitioners.
The impugned orders, accordingly, are legal and valid.
(ii) The suggestion of the respondents as regards a second
opportunity to be given to the petitioners is fair and equitable.
The petitioners are at liberty to make a fresh representation
along with such material to justify the experience certificates
submitted by them along with their recruitment application.
Such a representation be made to the respondents within a
period of two weeks from today.
(iii) The respondents shall grant a personal hearing to the
petitioners making such representation and on considering the
contentions of the petitioners and documents so submitted,
take an appropriate decision in accordance with law, including
a decision to recall the impugned removal orders, if it is found
that the petitioner has justified his claim for appointment.
This exercise be completed by the respondents within a period
of 10 weeks from the date of the submission of their
representation.
(iv) The respondents are directed to pay the concerned
petitioners an amount equivalent to their salary for the post in
question {Additional Executive Engineer (Transmission)} for
the period from 13 June 2016 till today for the reason that the
MSETCL did not permit these petitioners to join duties in
pursuance of the interim orders dated 13 June 2016 passed by
newwp5995.16 grp
us in Writ Petition No.5995 of 2016, 5996 of 2016 and Writ
Petition (Lodging) No.1461 of 2016 (OS).
Writ Petitions are accordingly dismissed, however
subject to the above directions. No order as to costs.
{G.S.Kulkarni, J} {Anoop V.Mohta, J}
newwp5995.16 grp
