Bombay High Court
Suruchi Rajendra Gujar vs Board Of Trustees Of The Mumbai Port ... on 23 October, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge, M. M. Sathaye
2024:BHC-OS:17681-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.76 OF 2023
Suruchi Rajendra Gurjar,
Age : 42 years, Occupation : Service,
Residing at Flat No.9, 4th Floor,
Kennery House, Mumbai Port Trust
Colony, Dumayne Road, Azadnagar,
Mumbai-400005.
...PETITIONER
VERSUS
1. Board of Trustees of the Mumbai
Port Authority (Mumbai Port Trust),
having its office at S.V. Road,
Ballard Pier, Mumbai-400001.
2. Mr. Rajiv Jalota,
Chairman, Mumbai Port Authority,
having his office at S.V. Road,
Ballard Pier, Mumbai-400001.
...RESPONDENTS
...
Shri Anil Anturkar, Senior Advocate a/w Ms.Kashish Chelani and
Shri Sankalpa Rajpurohit, Advocate for the Petitioner.
Shri R.S. Pai, Senior Advocate a/w Shri Anand Pai, Shri Rahul
Jain, Ms.Khushboo Rupani and Shri Sharan Shetty, Advocates
i/by HSA Advocate, for the Respondents.
...
CORAM : RAVINDRA V. GHUGE
PALLAVI
Digitally signed
by PALLAVI
MAHENDRA
&
WARGAONKAR
MAHENDRA
WARGAONKAR Date:
2024.10.24
10:54:22
M.M. SATHAYE, JJ.
+0530
Reserved on :- 16th October, 2024
Pronounced on :- 23rd October, 2024
::: Uploaded on - 24/10/2024 ::: Downloaded on - 25/10/2024 00:21:06 :::
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JUDGMENT (Per Ravindra V. Ghuge, J.) :
-
1. Rule. Rule made returnable forthwith and heard
finally by the consent of the parties.
2. The Petitioner has put forth prayer clauses (26-a)
and (26-a-1), as under:-
"(a) This Hon'ble Court may be pleased to call for
the records of the proceedings leading to the
impugned order dated 13th December, 2022
(Exhibit 'H' hereto) and after going through the
same, issue a writ of certiorari or a writ in the
nature of certiorari or any other writ, order or
direction quashing the impugned order dated
13th December, 2022 (Exhibit 'H' hereto) and
to reinstate the Petitioner with full back wages
and all consequential relief."
(a-1) This Hon'ble Court be pleased to direct the
Respondents to refund to the Petitioner the
amount of Security Deposit and all amounts
paid as monthly rent towards occupation of the
service quarters being flat No.9, 4th Floor,
Kennery House, MbPT Colony, paid/
deposited/ that will be paid/ deposited by the
Petitioner from February, 2023 till final
disposal of this Writ Petition."
FACTUAL MATRIX
3. The Petitioner was appointed by Respondent no.1,
Mumbai Port Trust, as a Senior Legal Manager, on 05.12.2016.
On 20.06.2019, she was appointed by Respondent No.1, as the
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Chief Law Officer. The probation period was of 2 years. By an
office order dated 21.06.2021, the Petitioner's probation period
was extended 'until further orders' under Regulation 19(2) of the
Mumbai Port Trust Employees (Recruitment, Seniority and
Promotion) Regulations, 2010 (for short, 'the 2010
Regulations').
4. Clauses 5, 11 and 12 of the appointment order dated
20.06.2019, read as under:-
"(5) You will be on probation for a period of two
years from the date of joining. The period of
probation is liable to be extended, if found
necessary. In case your work or conduct during
the period of probation or the extended period
of probation is found to be unsatisfactory and
shows that you are not likely to prove suitable
for the post, you may be discharged forthwith.
On satisfactory completion of the period of
probation, you will be informed accordingly in
writing. Until, you are so informed, you will be
deemed to be on probation."
"(11) The appointment is made relying upon the
information furnished by you. If, at any time, it
is found that you have furnished false
information or suppressed any material fact for
securing this appointment, your services will be
liable to be terminated forthwith without
notice, during or even after completion of
probation period, apart from any other action
that you may be liable for.
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(12) Your appointment is subject to verification of
antecedents by the Police. If any adverse report
is received from the Police your services are
liable to be terminated forthwith."
5. On 31.07.2020, the Petitioner's work was
appreciated and was issued with a letter of 'Appreciation'. On
20.03.2021, the Petitioner was served with a charge sheet. On
19.06.2021, she was served with an order of suspension, which is
one day prior to completion of the two years probation period as
a Chief Law Officer. It was stated in the order of suspension that
her headquarters would be at Mumbai and she would not leave
the headquarters without the previous permission of the
Chairman of the Mumbai Port Trust. She was informed of her
entitlement to subsistence allowance, equal to 50 % leave salary
and dearness allowance as per rules, subject to her declaration
that she is not engaged in any employment or business or
profession or vocation. On 21.06.2021, by an order of extension
of Probation, her probation period was extended without
mentioning the duration for which it was being extended.
6. The Suspension Review Committee met on
14.09.2021. By an office order dated 15.09.2021, her suspension
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was extended by six months. The extension was accompanied
with enhancement in subsistence allowance at the rate of 75%
after completing a total suspension period of six months. The
said committee once again met on 10.03.2022 and recommended
the extension of her suspension period for a further period of 180
days. An order extending the suspension was issued on
14.03.2022. Vide the order dated 08.09.2022, her suspension was
again extended, for the third time, for a further period of 180
days and the subsistence allowance was maintained at the same
rate of 75%.
7. The Petitioner approached this Court in Writ Petition
(Lodging) No.2202/2022. An Interim Application (Lodging)
No.20973/2022, was heard by this Court and by an order dated
12.08.2022, it was directed that any order inflicting major
punishment arising out of the departmental enquiry, would not be
passed without granting 14 days notice period to the Petitioner.
On 14.10.2022, the interim order was extended by recording the
statement of the Employer that no major punishment would be
inflicted until the next date.
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8. On 01.12.2022, this Court delivered the judgment
and disposed off the Writ Petition and the Interim Application,
with the following observations below paragraph No.32 :-
"32. We, therefore, proceed to pass the following
ORDER
(i) The charge-sheets dated 20th March 2021 (Exhibit
'D' ) 20th September 2021 (Exhibit 'E'), 6th January
2022 (Exhibit 'F'), 6th January 2022 (Exhibit 'F1')
and 31st May 2022 (Exhibit Z1) are not interfered
with on the ground as urged by Mr. Naidu and
considered by as hereinabove.
(ii) However, no other point in respect of alleged
invalidity of such charge-sheets is examined in
course of this proceeding. Whether or not the
charges are vague and/or the charge-sheets suffer
from any other legal infirmity are points which are
left open to be raised by the petitioner at an
appropriate stage of the disciplinary proceedings
or even thereafter, if the occasion therefor arises,
in view of the decision in A. Radha Krishna
Moorthy (supra).
(iii) The order of penalty dated 8th November 2021 is
also not interfered with, but liberty is reserved to
the petitioner to question the same in an appeal
that could be carried from such order but in
accordance with law."
9. It is not in dispute that the charge sheet dated
20.09.2021, was enquired into and the Enquiry Officer tendered
the final enquiry report on 16.09.2022 (65 pages), thereby,
holding the Petitioner guilty with regard to tendering false
information regarding her experience. The four articles of
charges read as under:-
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"ARTICLE I
Smt. Suruchi R. Gurjar, Chief Law Officer (Under
Suspension), Legal Division, GAD, Mumbai Port
Trust, has fraudulently claimed experience and
remuneration in Legal firms with a dishonest
intention to secure employment in Mumbai Port
Trust under wrongful means as Sr. Manager
(Corporate Legal) on contract basis, and thereby
committed misconduct and violated Regulation
3(1A)-(i), (iv), (xii) and (xiii) of the Bombay
(Mumbai) Port Trust Employees (Conduct)
Regulations, 1976.
ARTICLE II
Smt. Suruchi R. Gurjar, Chief Law Officer (Under
Suspension), Mumbai Port Trust, has fraudulently
claimed experience and remuneration in Legal
firms with a dishonest intention to secure
employment in Mumbai Port Trust under wrongful
means as Chief Law Officer and thereby committed
misconduct and violated Regulation 3(1A) - (i),
(iv), (xii) and (xiii) of the Bombay (Mumbai) Port
Trust Employees' (Conduct) Regulations, 1976.
ARTICLE III
Smt. Suruchi R. Gurjar, Chief Law Officer (Under
Suspension), Mumbai Port Trust, has suppressed
vital information of her experience and
remuneration with a dishonest intention and
wrongfully gained employment in MbPT and
thereby violated Regulation 16 of Mumbai Port
Trust Employees' (RS&P) Regulations, 2010.
ARTICLE IV
By the above acts, Smt. Suruchi R. Gurjar, Chief
Law Officer (Under Suspension) failed to maintain
absolute integrity and devotion to duty and
violated Regulation 3(1) of the Bombay (Mumbai)
Port Trust Employees' (Conduct) Regulations,
1976."
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10. On 13.12.2022, the Employer / Port Trust issued the
order of terminating the appointment of the Petitioner and her
probation was brought to an end, after 3 years and 6 months. It
would be apposite to reproduce the impugned order dated
13.12.2022, here under:-
"1. WHEREAS an advertisement was issued on
22.01.2019 by Mumbai Port Authority for
appointment to the post of Chief Law Officer
(Class-I) under Direct Recruitment method. As
per the said advertisement, the following
essential qualifications and experience were
stipulated, which reads as under:
Essential:
i) Degree in Law from a recognized
university:
ii) Twelve years Executive experience in the
legal establishment of an Industrial/
Commercial/ Government Undertaking;
Or
Twelve years standing practice as an Advocate
in any Court of Law including High Court;
Or
6 years experience as a Solicitor;
Or
10 years experience as a Judicial Officer;
Or
Combined experience of 12 years in a Legal
establishment of an Industrial/ Commercial/
Government Undertaking and Standing
practice as an Advocate in any Court of Law
including High Court and as Judicial
Officer/Solicitor.
Desirable:
(i) Post Graduate Degree in Law from a
recognized university;
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Note: "Preference will be given to persons
having experience in Laws applicable to
Marine/Estate/Property/Contracts."
2. AND WHEREAS Smt. Suruchi Rajendra Gurjar
has made an Application dated 07.02.2019 for
employment as Chief Law Officer in response
to the said advertisement. In the Application,
she made a declaration that in the event of any
information being found to be false or
incorrect, her candidature/ appointment may
be cancelled/terminated without any notice.
3. AND WHEREAS based on her Application and
prima facie accepting her declaration, offer of
appointment dated 20.06.2019 was issued to
her and she was appointed on 21.06.2019 as
Chief Law Officer on probation for a period of
two years as per the terms and conditions
specified in her offer of appointment subject to
further extension. The same was duly accepted
by her.
Further as per the terms and conditions
specified at para 1(5) in her offer of
appointment, her probation was extended vide
order dated 21.6.2021 until further orders.
4. AND WHEREAS as per the terms and conditions
envisaged in her offer of appointment dated
20.06.2019 to the post of Chief Law officer at
para 1(11) it is specified that, "The
appointment is made relying upon the
information furnished by you. If, at any time, it
is found that you have furnished false
information or suppressed any material fact fer
securing this appointment, your services will
be liable to be terminated forthwith without
notice, during or even after completion of
probation period, apart from any other action
that you may be liable for."
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5. AND WHEREAS on consideration of her
service records, Smt. Suruchi Rajendra Gurjar
is found lacking in essential requisites as to the
required experience for the post as elaborated
in the advertisement. Thus, it is noticed that
from the inception she was lacking in the
essential requisites as to the experience as
stipulated in the advertisement and thereby
she is not found fit for retention and
confirmation for appointment as Chief Law
Officer in the services of Mumbai Port
Authority.
6. NOW, THEREFORE, I, the undersigned, being
the Appointing Authority for the post of Chief
Law Officer, after due consideration of all the
service records of Smt. Suruchi Rajendra
Gurjar in totality, find that she is not suitable
for retention and confirmation in service as
Chief Law Officer in Mumbai Port Authority
and accordingly her services stand terminated
from the services of Mumbai Port Authority
effective from the close of working hours of
13th December 2022."
SUBMISSIONS OF THE PETITIONER
11. The learned Senior Advocate Shri Anturkar, for the
Petitioner, has contended that, firstly, the probation of the
Petitioner was indefinitely extended on the day (21.06.2021) she
had completed 2 years of her probation. Secondly, the impugned
order concluding that the Petitioner lacked essential requisites
qua the aspect of experience, for being eligible to be considered
for the post of Chief Law Officer as per the advertisement, is
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wholly and solely based upon the enquiry report dated
16.09.2022. The Employer instituted an enquiry into the four
articles of charges and after the Enquiry Officer concluded that
the 4 charges are proved and it is established that the Petitioner
did not possess the requisites necessary for the appointment as a
Chief Law Officer, the Chairman and Appointing Authority has
concluded that the Petitioner was found lacking in essential
requisites from the inception and she is not found fit for retention
and confirmation as Chief Law Officer. This is evident from the
statement made in paragraph Nos.4 and 6 of the impugned order
(reproduced above), which indicates that the Appointing
Authority was convinced that she had suppressed material facts
for gaining employment and, therefore, she was found to be
unsuitable for retention and confirmation in service. This
conclusion is based on paragraph Nos.4 and 5, which are
founded on the findings of the Enquiry Officer. Therefore,
thirdly, the termination is stigmatic in view of the observations in
paragraphs 4 and 5, of the impugned order.
12. The Petitioner relies upon the following judgments:-
(a) Brihanmumbai Mahanagarpalika and another vs.
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Secretary, Bar Council of Maharashtra and Goa and
another, 2012 (6) Mh.L.J. 407 (Full Bench).
(b) A.K. Balaji vs. The Government of India and others,
2012 (2) CTC 1 Vol.78 Part 1, (Madras High Court).
(c) Bar Council of India vs. A.K. Balaji, (2018) 5 SCC
(d) Dr. Vijayakumaran C.P.V. vs. Central University of
Kerala and others, AIR Online 2020 SC 89 : (2020)
2 Scale 661.
(e) Dipti Prakash Banerjee vs. Satyendra Nath Bose
National Centre for Basic Sciences, Calcutta and
others, (1999) 3 SCC 60.
13. Shri Anturkar further contends that the decision of
the Employer to conclude that the Petitioner does not have the
requisites for being considered to the post of the Chief Law
Officer, is inextricably connected with the findings of the
Enquiry Officer. After the Enquiry Officer held that the Petitioner
is guilty of misrepresentation and suppression, the Employer
arrived at it's conclusion on the basis of the evidence recorded.
This is the foundation of the impugned order.
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14. It is further submitted that the Petitioner moved the
Employer with an RTI Application and also filed a department
appeal. Based on her RTI Application, the Employer furnished
information to the Petitioner vide an email communication, dated
15.02.2023 and enclosed an Annexure i.e. the internal notings of
the Deputy Secretary, Senior Deputy Secretary, Secretary,
Deputy Chairman and the Chairman (all of whom have signed
the noting on 09.12.2022), agreeing that the findings of the
Enquiry Officer dated 16.09.2022, which hold the Petitioner
guilty of the four articles (reproduced above) and based on the
said evidence and findings, the violation of Regulations 3(1),
3(1A)(i), (iv), (xii) and (xiii) of the Bombay (Mumbai) Port Trust
Employees (Conduct) Regulations, 1976, was established. The
notings also recorded that the Chairman and the Disciplinary
Authority issued the second show cause notice dated 03.10.2022,
along with the copy of the Enquiry Officer's report and directed
the Petitioner to submit her explanation on the Enquiry Report,
within 15 days, as to why a major punishment should not be
inflicted on her.
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15. One more annexure was supplied to the Petitioner
under RTI with the subject 'Action Against Smt.Suruchi R.
Gurjar, Chief Law Officer (under suspension), REG '. On
perusing the same, the Petitioner contends that the entire note
suggesting disciplinary action against the Petitioner is based on
the charge sheet dated 20.03.2021 and the Enquiry Report dated
16.09.2022. Finally, it was recorded in paragraph Nos.17, 18 and
19 in the notings, as under:-
"17. Pursuant to the Hon'ble High Court's Order
dated 1.12.2022, Legal Opinion from Sr.
Advocate and Counsel Shri Ratnakar Pai was
sought on the following.
A. Whether to take action in the matter
against her in terms of appointment order
dated 20.06.2019 as well as MbPT (RSP)
Regulations, 2010, since she is a probationer
and her probation has not been declared so far,
Or
B. Whether to take action based on the
inquiry report under the provisions of MbPA
(CCA) Regulations, 1976.
18. Legal Opinion from Sr. Advocate and Counsel
Shri Ratnakar Pai is enclosed.
19. In view of Hon'ble High Court Orders dated
01.12.2022 and Legal Opinion sought from the
Sr. Advocate and Counsel Shri Ratnakar Pai as
explained at para 17 and 18 above, Orders of
Chairperson and Appointing/Disciplinary
Authority in the subject case on the above 2
options, i.e. option A or option B, are
requested for further course of action under
intimation to Ministry."
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In view of the above, the Secretary and the
Chairman opted for option A.
16. The Petitioner contends that the impugned order is
clearly and solely based on the report of the Enquiry Officer. The
whole action is founded on the said report and a second show
cause notice dated 03.10.2022 was issued to the Petitioner,
calling for an explanation as why she should not be inflicted with
a major punishment. Instead of passing the final order based on
such material, the Employer opted for terminating the probation
period of the Petitioner, only to create a 'make believe' picture
that an innocuous order has been passed. Clauses 2, 3, 4 and 5 of
the impugned order, draw an inference that the Petitioner is
found lacking in essential requisites and this conclusion is
founded on the belief of the Employer in paragraph Nos.2 and 4,
which indicate the view of the Employer that the Petitioner is
guilty of making a false and incorrect declaration. This
conclusion is stigmatic in nature.
17. After issuing a second show cause notice to the
Petitioner along with the findings of the Enquiry Officer, the
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Employer has based the impugned order on the Enquiry Officer's
findings. Though the Employer opted for option 'A' (paragraph
17 of the notings reproduced above), a stigmatic order has been
passed.
SUBMISSIONS OF THE RESPONDENTS/MbPT
18. The learned Senior Advocate Shri Pai, has
vehemently canvassed that the contention of the Petitioner is
misconceived and does not deserve consideration. The 2010
Regulations empower the Employer to extend the probation. He
relies upon the affidavit in reply dated 19.12.2022, filed by
Mrs.S.G. Patwardhan, Senior Deputy Secretary. He also relies
upon the order dated 11.11.2021 passed by the Hon'ble Supreme
Court in Civil Appeal n. 7353-7354 of 2009 (Rajesh Kumar v/s
Union of India), to support his contention that the Petitioner has
suppressed material information and has mislead the Employer
for gaining employment.
19. He draws our attention to the various contentions set
out in the said affidavit in reply, more specifically paragraph
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Nos.3A and 3B, which indicate that the enquiry was conducted
and the second show cause notice was issued to the Petitioner,
only to arrive at a finding as to whether, it was desirable to
continue her in service. A more serious action was not
contemplated only to avoid a stigma to her career. He further
points out clause 5 of the appointment order to contend that it
was within the domain of the Employer to continue the probation
of the Petitioner until satisfactory completion and until she was
informed of the same in writing, she was deemed to be on
probation.
20. It is denied that the Petitioner's service has been
wrongfully terminated. It is denied that her probation period was
terminated on account of the enquiry and it is reiterated that she
was unfit for confirmation and retention. She was terminated
strictly in accordance with the terms of her appointment order. It
is reiterated in paragraph No.18 that ' Respondent No.2, refrain
from merely terminating her service forthwith under clause 11 of
the said appointment letter. Instead, Respondent No.2 decided to
take steps to initiate a regular Departmental Enquiry, to look into
the charges framed vide charge sheet dated 20 th September, 2021
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to find out the fulfillment of the eligibility criteria with respect to
the experience of the Petitioner.' It is prayed that the petition be
dismissed with costs.
21. The Employer has relied upon the view taken by the
Single Judge Bench in Shaikh Farheen Sultana Abdul Samad vs.
President, Dayanand Shikshan Sanstha, Latur and others, 2016
(4) Mh.L.J. 947, to buttress his contention that, a probationer
does not have a right to continue in employment.
CONCLUSIONS
A] ISSUE OF PROBATION
22. In the order of probation, reproduced in paragraph 4
herein-above, the Petitioner was indicated that her probation
would be for a period of two years, subject to an extension. If not
found suitable for the post, she would be discharged during the
probation period or the extended period. On 31.07.2020, the
Petitioner was issued with an appreciation letter which is an
indicator that she was working satisfactorily during her probation
period. On 20.03.2021, she was served with a charge-sheet. On
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19.06.2021, three months after the issuance of the charge-sheet,
she was placed under suspension. The Suspension Review
Committee extended her suspension for six months by Office
Order dated 15.09.2021. Thereafter, again her suspension period
was extended for a further period of 180 days, vide Order dated
14..03.2022. Yet again, vide Order dated 08.09.2022, her
suspension was further extended for the third time for 180 days.
23. It is obvious from the extension order of probation
dated 21.6.2021, that it was issued on the day she completed her
probation period. Her probation was extended in perpetuity.
There was no mention in the order of extension that her
probation period was being extended for a particular period. It
was also not mentioned that her performance is found to be
unsatisfactory or that, the probation was being extended to grant
her an opportunity for improvement. Apparently, her probation
was extended since she was suspended.
24. The Petitioner has contended that after one year of
her probation period, she was issued with a letter of appreciation
dated 31.07.2020 which is a confirmation of her good
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performance. Her suspension is clearly on the basis of the
allegation that she has suppressed information and has
fraudulently gained employment.
25. Shri Pai has relied upon clause 19 of the Mumbai
Port Trust Employees (Recruitment, Seniority and Promotion)
Regulations, 2010, which provides for extension of the Probation
period. Clause 19 (2) permits extension for a specific period at a
time, but the total should not be more than 1 year, unless the
extension is due to a pending departmental enquiry. However,
what we find in this case is that the probation of the Petitioner
was extended indefinitely without mentioning any period.
Moreover, it was extended only because the D E was being
conducted and not for unsatisfactory work.
26. In the above circumstances, especially in view of the
Clause 19(2) of the Regulations which provides the maximum
probation period of 3 years, we have no hesitation to conclude
that probation period cannot be extended in perpetuity. It is
canvassed in the open Court by the learned Senior Advocate Shri
Pai, that the Petitioner is discontinued due to suppression of
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facts. In view of the pleadings in the affidavit in reply, it is
admitted that the Petitioner was not communicated any adverse
remarks, either for deficient working or for exhibiting mediocrity
in her performance. No factor was brought to her notice to
indicate the area in which she was under performing. On such
grounds, the indefinite extension of probation can be interfered
with and the principle of deemed confirmation can be invoked,
since the Regulations do not permit extension beyond 3 years.
We are fortified by Raymond UCO Denim Pvt Ltd. Yavatmal v/s
Praful Warade and others [2010(6) Mh L J 178].
B] SUSPENSION PENDING ENQUIRY
27. It is a matter of record that after the Petitioner was
issued with an appreciation letter dated 31.07.2020 and she was
served with a charge-sheet dated 20.03.2021. Four Articles of
charges were formulated, which have been reproduced verbatim
in paragraph 9, in this judgment. Article I speaks about a
fraudulent claim of experience and a dishonest intention to
secure employment. Under Article II, again it is alleged that the
Petitioner has fraudulently claimed experience and remuneration
in legal firms with a dishonest intention to secure employment.
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Under Article III, it is alleged that the Petitioner has suppressed
vital information of her experience and remuneration with a
dishonest intention of wrongfully gaining employment. Under
Article IV, it is alleged that she failed to maintain absolute
integrity and devotion to duty.
28. The last Article (IV) reflects on the performance of
the Petitioner, her integrity and devotion at work, as a
probationer. The language used in Article IV runs counter to the
appreciation letter dated 31.07.2020 issued to the Petitioner. So
also, admittedly, on no occasion was the Petitioner informed in
writing about the area in which the employer noticed lack of
integrity and lack of devotion to duty. It is openly canvassed
before us by the Employer, that her probation was extended as
per Regulation 19 because it empowers the Employer to extend
the probation if the Employee is facing disciplinary action. This
is, therefore, the true cause for the extension of her probation
which continued for 3 years and 6 months, which is
impermissible even under the Regulations, save and except, for
the purpose of conducting the Departmental Enquiry.
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29. Based on four charges, the Departmental Enquiry
was conducted and the Enquiry Officer tendered the report dated
16.09.2022, in which, he concluded that all the four charges are
proved. It was further held that the Petitioner did not possess the
requisites necessary for appointment as a Chief Law Officer. The
record of the Mumbai Port Trust reveals that the Chairman and
Appointing Authority concluded that the Petitioner was lacking
in essential requisites and she was not found fit for retention and
confirmation as Chief Law Officer, on the basis of such
conclusions of the Enquiry Officer. This is evident from the
camouflaged statement made in paragraphs 4 and 6 of the
impugned order of termination, reproduced in paragraph 10, here
in above.
30. The learned Senior Advocate Shri Pai has
strenuously attempted to convince us that the Petitioner was not
found suitable to be confirmed in employment. However, this is
not even whispered in the extension order, which continued her
probation for 3 years and 6 months, which is permissible only if
the Employee is facing a D E. In our view, a probation period is
specifically utilised for testing the suitability of an Employee for
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confirmation in employment. In catena of judgments, the law is
crystallised that adverse observations or negative impressions
during the probation period, have to be brought to the notice of
the probationer, at regular intervals, in order to give him an
opportunity of improving his performance. This has not been
done by the employer. However, adverse conclusions in the
termination order, are based on the foundation of the Enquiry
Report, which is evident from the notings supplied to the
Petitioner under RTI. Therefore, the impugned termination
amounts to a stigmatic removal.
31. During the course of submissions, Shri Pai has
specifically canvassed in the open Court through video
conferencing facility that, the Petitioner was found to have
indulged in suppression of her qualifications with regard to
which a reference is found in paragraph 4 of the order of
termination. Even the four articles of charges indicate the thrust
of the employer on the aspect that the Petitioner has indulged in
suppression and has fraudulently claimed necessary experience
and remuneration earned from legal firms, with the dishonest
intention to secure employment.
*25* wp76o23 MbPT
32. In Dipti Prakash Banerjee v/s Satyendra Nath Bose
National Centre for Basic Sciences, Calcutta & Ors., (1999) 3
SCC 60, the Hon'ble Supreme Court has held as under :-
"35. The above decision is, in our view, clear authority for the
proposition that the material which amounts to stigma need
not be contained in the order of termination of the
probationer but might be contained in any document referred
to in the termination order or in its Annexures. Obviously
such a document could be asked for or called for by any
future employer of the probationer. In such a case, the order
of termination would stand vitiated on the ground that no
regular inquiry was conducted. We shall presently consider
whether, on the facts of the case before us, the documents
referred to in the impugned order contain any stigma.
36. It was in this context argued for the Respondent that the
employer in the present case had given ample opportunity to
the employee by giving him warnings, asking him to improve
and even extended his probation twice and this was not a
case of unfairness and this Court should not interfere. It is
true that where the employee had been given suitable
warnings, requested to improve, or where he was given a
long rope by way of extension of probation, this Court has
said that the termination orders cannot be held to be punitive .
[See in this connection Hindustan Paper Corporation vs.
Purendu Chakraborty [1996 (11) SCC 404] See in this
connection, Oil & Natural Gas Commission vs. Md. S.
Iskender Ali [1980 (3) SCC 428], Unit Trust of India vs. T.
Bijaya Kumar [1992 (5) S.L.R. 855 (SC)], Principal, Institute
of Postgraduate Medical Education & Research, Pondicherry
vs. S. Andel & others [1995 Suppl. (4) SCC 609] and a
labour case Oswal Pressure Die Carting Industry vs.
Presiding Officer [1998 (3) SCC 225]. But in all these cases,
the orders were simple orders of termination which did not
contain any words amounting to stigma. In case we come to
the conclusion that there is stigma in the impugned order, we
cannot ignore the effect it will have on the probationer's
future whatever be earlier opportunities granted by the
respondent-Organisation to the appellant to improve.
37. On this point, therefore, we hold that the words amounting to
"stigma" need not be contained in the order of termination
but may also be contained in an order or proceeding referred
to in the order of termination or in an annexure thereto and
*26* wp76o23 MbPT
would vitiate the order of termination. Point 3 is decided
accordingly.
Point 4:
38. Under this point, two aspects of the case fall for
consideration, firstly whether the impugned order is founded
on any conclusions arrived at by the employer as to his
misconduct or whether the termination was passed because
the employer did not want to continue an employee against
whom there were some complaints. The second aspect is
whether there is any stigma in the order of termination or in
the documents referred to in the termination order.
39. Taking up the first aspect, we have noticed that during the
first one year of probation, a letter dated 11.12.1995 was
served on the appellant. That letter stated, among other
things, that the appellant "prepared false bills" and that he
"misbehaved with women academic staff members". The
appellant sent a reply denying the allegation and he also
sought for a copy of the complaint said to have been given by
the lady academic staff member. It is true that subsequently,
there were two orders of extension of probation each for six
months. But in the impugned order dated 30.04.1997, it was
stated in para 8 that the order of termination was being
passed because of the "conduct", performance, ability and
capacity of the appellant during the "whole period". This
would clearly take in the facts stated in the letter dated
11.12.1995. It is obvious that findings of preparation of false
bills or of misbehaviour with women which ought to be
arrived at only in a regular departmental inquiry, were
referred to in this letter without any enquiry. It will be
noticed that the letter dated 11.12.1995 does not merely say
that there are such complaints against the appellant but it
says conclusively that the appellant had "prepared false" bills
and "misbehaved" with women academic staff members.
40. The above language in the letter dated 11.12.1995 would
clearly imply that this was not a case of any preliminary
findings. If these were referred to as mere allegations, it
would have been a case of motive. But as these definitive
conclusions of misconduct are evident on the face of this
letter dated 11.12.1995 and this letter falls within the "whole
period", the conclusion is inescapable that these findings
were part of the foundation of the impugned order and it is
not a case of mere motive. On this ground, the order requires
to be set aside.
*27* wp76o23 MbPT
41. We shall next take up the second aspect relating to stigma.
We shall assume that the words used in the impugned order
do not contain any stigma. We shall then refer to the three
other letters to which the order makes a reference. In the first
letter dated 30.04.1996, we do not find anything
objectionable. Coming to the next letter, we however find
that para (iii) refers to the scuffle between the appellant and
one P. Chakraborty regarding which the appellant made a
complaint on 28.05.1996. An Enquiry Committee is said to
have been appointed and it gave a Report. The extract from
the report of the Committee dated 15.7.1996 is found in the
Counter of the respondents. The Enquiry Committee found
the appellant's "behaviour reprehensible", and it confirmed
that the appellant was "involved in a scuffle and did
misdeeds like obtaining false signatures", and said that the
appellant was "guilty of inefficient performance or duty,
irregular attendance without permission, rude and disorderly
behaviour and wilful insubordination". Whatever may be said
about the other words, the words used in connection with the
finding of the Enquiry Committee about the scuffle and about
the appellant obtaining false signatures, are, in our opinion,
clearly in the nature of a stigma. Further, the Enquiry
Committee said he must be "punished". It did not say that
proceedings for disciplinary action were to be initiated. Thus
on the ground of "stigma" also, the impugned order is liable
to be set aside.
42. It was argued that the appellant was given notice of the above
enquiry by the Committee but he was "not cooperative". In
our view findings arrived at by such an informal Committee
against the appellant, which Committee was, in fact,
constituted on a complaint by the appellant against Mr.
Chakraborty, cannot be used for terminating the appellant's
probation, without a proper departmental inquiry. The said
findings, in our view, were the foundation for the impugned
order among other facts. Such findings must, in law, be
arrived at only in a regular departmental inquiry."
[Emphasis supplied]
33. We are, therefore, required to assess as to whether
the impugned order of termination is stigmatic, founded on
allegations of suppression and fraudulent behaviour of the
*28* wp76o23 MbPT
Petitioner, as is contended by the Employer, or whether, the
impugned order is an innocuous and non-stigmatic order. In D. P.
Banerjee (supra), the Hon'ble Supreme Court has concluded that
the termination order should not contain any such references
which would indicate unacceptable conduct of a candidate and
should not be referable to such material or contentions, which
would attach a stigma to the employee.
34. Under the RTI act, the Petitioner was served with
internal documents. The internal noting makes a mention of 5
senior officers of the Port Trust agreeing to the fact that the
charges are proved against the Petitioner, which establish that she
is guilty of suppression of material information and having made
a fraudulent attempt to gain employment. The noting also makes
a mention of initiating action against the Petitioner on the basis
of the Enquiry Officer's report. An option is suggested in the
noting that the Chairman may opt for issuing an order of
termination of the Probation period. A second show cause notice
dated 03.10.2022, along with the copy of the Enquiry Officer's
report dated 16.09.2022, was served on her, thereby proposing a
major punishment. This was the penultimate stage of the
*29* wp76o23 MbPT
disciplinary action, as is explained in Hindustan Lever Ltd. v/s
Ashok Vishnu Kate & Ors., (AIR 1996 SC 285).
35. It is in the backdrop of the Enquiry Officer's Report,
that the employer issued a second show cause notice to the
Petitioner, on 3rd October, 2022 and called upon her to explain as
to why a major punishment should not be inflicted upon her. She
was called upon to reply to the second show cause notice after
which the Petitioner contemplated issuing an order of major
punishment. A copy of the Enquiry Officer's report dated 16 th
September, 2022 was also served upon the Petitioner.
36. Having perused the extensive material before us, we
find as under :-
a] A charge sheet was served upon the Petitioner, 6 months
prior to completion of her Probation period.
b] All the charges were in relation to specific allegations of
suppression of material information and a fraudulent attempt to
gain employment.
c] The Regulations permit the Employer to extend the
probation of an Employee, either for unsatisfactory performance
*30* wp76o23 MbPT
or if disciplinary proceeding is underway.
d] The charges were proved in the enquiry and the Employer
was convinced that the Petitioner is guilty of suppression of
material information and a fraudulent behaviour for gaining
employment.
e] The stage was set for issuing an order for inflicting a major
punishment on the Petitioner, after serving the second show
cause notice to her and calling for her explanation as to why she
should not be awarded a major punishment.
f] After receiving the explanation of the Petitioner, the
department suggested to the Chairman to either act on the
Enquiry Report and inflict a major punishment to the Petitioner,
or issue an order of termination to end the probation of the
Petitioner.
g] The Chairman opted to terminate the Petitioner vide the
impugned order, apparently on concluding that she had
suppressed material information for fraudulently gaining
employment.
h] Paragraph 1 of the impugned order indicates that the
requisite qualifications were described. In paragraph 4 of the
said impugned order, it is specifically averred that the Petitioner
*31* wp76o23 MbPT
can be terminated if the information tendered by her in the
application form are found to be untrue or lacking in requisites.
i] A conjoint reading of paragraph 1, 2, 4 and 5 of the
impugned order, clearly indicates that the employer was
convinced on the basis of the enquiry report that, the Petitioner
deserved to be terminated since she is found to be lacking in
requisites.
j] The impugned termination order was founded on the
conclusion that the Petitioner was guilty of suppression of facts
for gaining employment. References are made to this aspect in
the impugned order to demonstrates that her termination was
referable to the act of suppression of facts and a fraudulent
behaviour.
k] The stand taken by the Employer before the Court is that
the Petitioner was guilty of suppression of material information
and therefore, she was terminated.
l] The impugned order, with the decisive reference to the
above purported acts, is a stigmatic order and has been issued by
creating a make believe picture that the Petitioner's performance
was unsatisfactory, when her suspension was extended only due
to the D E and no adverse remarks were communicated to her.
*32* wp76o23 MbPT
37. In view of the above and in the light of Dipti
Prakash Banerjee (supra), we hold that the impugned order of
termination is stigmatic and is wholly based upon the
conclusions of the Enquiry Officer that the Petitioner is guilty of
suppression of material information and for indulging in a
fraudulent act of gaining employment.
38. This Writ Petition is, therefore, allowed in terms of
prayer clause (a). Considering the factual matrix and the
contention of the Petitioner of being unemployed since her
termination, which is not controverted by the Employer, we are
granting full back wages to her, to be paid withing 30 days. She
shall be reinstated in service within the same timeline of 30 days,
failing which, she shall be entitled for 6% p.a. simple interest on
the back wages and full wages until her reinstatement.
39. Needless to state, this judgment would not create
any embargo on the Employer or curtail it's right to further
initiate appropriate steps to act on the basis of the second show
cause notice, dated 03.10.2022, if so desired.
*33* wp76o23 MbPT
40. A perusal of prayer clause (a-1), would indicate that
the Petitioner desired the refund of deposits. Considering the
above directions, the said prayer, in our view, would not survive.
If the Petitioner has any reason to be aggrieved in connection
with prayer clause (a-1), she may make a representation to her
employer or initiate proceedings for recovery.
41. Rule is made absolute in the above terms.
(M.M. SATHAYE, J.) (RAVINDRA V. GHUGE, J.)
