Upendra Kumar Basudev Pandit vs Dakshin Gujarat Vij Company ...
2021 Latest Caselaw 13367 Guj

    C/SCA/20864/2017                                 JUDGMENT DATED: 03/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 20864 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                  UPENDRA KUMAR BASUDEV PANDIT
                               Versus
           DAKSHIN GUJARAT VIJ COMPANY LIMITED & 3 other(s)
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Appearance:
MS.DILBUR CONTRACTOR(6388) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3,4
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                            Date : 03/09/2021
                            ORAL JUDGMENT

1.By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:

"A. The Hon'ble Court be pleased to issue appropriate writ, order or direction

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quashing and setting aside the order impugned dated 01.02.2014 passed by the respondent No.1 and order dated 04.03.2014 passed by the respondent No.2 vide which the services of the petitioner were terminated and thereby direct the respondents to reinstate the petitioner along with its consequential benefits.

B. Pending admission, hearing and disposal of the petition, the Hon'ble Court be pleased to stay the operation, implementation and execution of the order impugned dated 01.02.2014 passed by the respondent no.1 and order dated 04.03.2014 passed by the respondent No.2 vide which the services of the petitioner were terminated.

C. Be pleased to grant urgent ex parte ad interim relief in terms of para 8(A) and 8(B)above.

D. The Hon'ble Court may be pleased to grant such other and further releif/s as deemed just and proper by this Hon'ble Court in the interest of justice."

2.Brief facts of the case are as under:

2.1 The petitioner was appointed on the post of Vidhyut Sahayak (Junior Engineer) as per the appointment letter dated 20.01.2012 issued by the respondent No.2-Chief Engineer (O&M) Dakshin Gujarat Vij Company Limited.

2.2 The petitioner was appointed for a period of two years from the date of joining.

As per clause 4 of the appointment letter the

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performance of the petitioner was to be observed for a period of six months and on the basis of the performance, further continuation on the post of Vidhyut Sahayak for the remaining tenure of one and half year was to be decided and if the performance was not found satisfactory in the first six months, the appointment of the petitioner would be discontinued without notice.

2.3 Clause 5 of the appointment letter specified that on completion of two years, the performance would be assessed for consideration to the post Junior Engineer. If the petitioner was not to be found fit for regular appointment, his service would come to an end.

2.4 The petitioner commenced his service at Valod Sub Division Office for the first five months from the date of his appointment and no complaint or any memo or caution letter with respect to his service was issued to him for the said period.

2.5 On having found the work of the petitioner satisfactory in the first six months, his services were continued as per clause 4 of the appointment letter. Thereafter, the petitioner was transferred to

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Dolvan Sub Division Office from July 2012 and his work was found satisfactory even at Dolvan Sub Division Office till December, 2012.

2.6 It is the case of the petitioner that the respondent No.4-Deputy Engineer (O & M) was appointed at the Valod Sub-division Office in January 2013. The petitioner started receiving memos and caution letters for negligence and dis-satisfactory work. First such memo dated 07.01.2013 was replied by the petitioner on 09.01.2013 explaining that there was no negligence or carelessness on his part and he was discharging his duties in the best possible manner.

2.7 According to the petitioner, respondent No.4 was prejudiced towards the petitioner and deliberately tried to harass the petitioner and therefore, on 18.01.2013, another memo was issued to the petitioner for not learning Gujarati Language. The petitioner, by reply dated 25.01.2013, contended that he could understand and read Gujarati and ensured to take Gujarati tuition and classes to speak and write Gujarati.

2.8 According to the petitioner, due to the grudge towards the petitioner, the respondent

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No.4 issued numerous memos every fortnight which were replied by the petitioner initially. The petitioner was served with an extract of the confidential report of his services on his work which contained adverse remarks on his work capacity and eligibility along with the memo dated 18.01.2014 so as to give an opportunity for improvement. It was also stated in the memo that the petitioner can prefer the appeal within 45 days against the adverse remarks. However, before the expiry of the appeal period, vide Office Order dated 01.02.2014, the petitioner was relieved from his services.

2.9 The petitioner thereafter preferred an appeal on 07.02.2014 against the adverse remarks by giving explanation in the appeal for such remarks. The petitioner expressed his grievance that respondent No.4 was victimizing the petitioner and wanted to remove him from service and therefore, the adverse remarks were made with an ulterior motive. The petitioner also filed his written submissions in Gujarati on 20.08.2014 with a request to withdraw the termination order.

2.10 The respondent No.2-Chief Engineer (O & M) by Office Order dated 04.03.2014

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confirmed the termination of the services of the petitioner by rejecting the appeal.

2.11 The petitioner thereafter served a notice dated 04.09.2016 through his advocate to recall the termination order. As no response was received, the petitioner again sent a reminder and the last reminder being communication dated 16.03.2017. As no reply was received from the respondents, the petitioner has filed this petition with the aforesaid prayers.

3.Learned advocate Ms. Dilbur Contractor appearing for the petitioner submitted that the impugned order of termination is in violation of the principles of natural justice as the respondent authorities has passed the impugned order without giving any opportunity of personal hearing to the petitioner inasmuch as the submissions made by the petitioner in his appeal are also not considered.

3.1 It was submitted that the respondent authority failed to consider that the adverse remarks are borne out of prejudice and grudge that the respondent No.4 was having against the petitioner. It was submitted that the

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termination order was passed even before the expiry of the appeal period of 45 days without considering the fact that not a single memo or caution letter was issued to the petitioner during initial period of his service and only after the respondent No.4 took charge, the petitioner started receiving caution letters resulting into victimization of the petitioner by the respondent No.4.

3.2 It was submitted that the impugned order of termination is passed by the respondent authorities without considering the submissions made by the petitioner as the respondent authorities had made up their mind to terminate the services of the petitioner and the opportunity to prefer appeal was mere a formality.

3.3 It was submitted that the adverse remarks which are the basis of the termination of the services of the petitioner are stigmatic and punitive in nature and termination order would adversely affect the future prospects of the petitioner and therefore, the impugned order is liable to be quashed and set aside as per the settled legal position.

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3.4 It was further submitted that the impugned order is in violation of the Article 14 of the Constitution of India as the same is passed without hearing the petitioner and without following the due procedure on the ground that the petitioner was a contractual employee and such discrimination between the regular employee and the contractual employee has been held to be illegally and arbitrary by the various High Courts as well as the Apex Court.

3.5 In support of her submissions learned advocate Ms. Contractor relied upon the following decisions:

(i) Dipti Prakash Banerjee vs. Satyendra Nath Boase National Centre for Basic Sciences, Calcutta and ors reported in (1999) 3 SCC 60

"23. In the present case before us, the order of termination dated 30.4.97 is not a simple order of termination but is a lengthy order which we have extracted above. It not only says that performance during probation is not satisfactory but also refers to a letter dated 30.4.1996 by which the period of probation was extended by six months from 2.5.1996, and to letters dated 17.10.96 and 31.10.96. It concludes by saying that the appellant's `conduct, performance, ability and capacity during the whole period of probation was not satisfactory and that he

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was considered `unsuitable' for the post for which he was appointed.

25. In the matter of `stigma', this Court has held that the effect which an order of termination may have on a person's future prospects of employment is a matter of relevant consideration. In the seven Judge case in Samsher Singh vs. State of Punjab [1974 (2) SCC 831], Ray,CJ observed that if a simple order of termination was passed, that would enable the officer to "make good in other walks of life without a stigma. "It was also stated in Bishan Lal Gupta vs. State of Haryana [1978 (1) SCC 202] that if the order contained a stigma, the termination would be bad for "the individual concerned must suffer a substantial loss of reputation which may affect his future prospects".

26. There is, however, considerable difficulty in finding out whether in a given case where the order of termination is not a simple order of termination, the words used in the order can be said to contain a `stigma'. The other issue in the case before us is whether - even if the words used in the order of termination are innocuous, -the court can go into the words used or language employed in other orders or proceedings referred to by the employer in the order of termination?

31. Thus, it depends on the facts and circumstances of each case and the language or words employed in the order of termination of the probationer to Judge whether the words employed amount to stigma or not. Point 2 is decided accordingly."

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(ii) Learned advocate Ms. Dilbur Contractor also relied upon the decision of this Court [Coram: Hon'ble Ms. Justice Sonia Gokani] in case of Anakbhai Bachubhai Gida vs. State of Gujarat and ors. rendered on 29.01.2016 [SCA No. 208/2016].

4. On the other hand, learned advocate Mr. Dipak Dave for the respondents submitted that the petition is not maintainable as the petitioner cannot as a matter of right get the appointment on the post of Junior Engineer as the petitioner was given appointment for a fixed period of two years and it was for the respondents to consider the performance of the petitioner on completion of two years as to whether to continue the petitioner or not.

4.1 It was submitted that as per the terms of the appointment letter, the petitioner cannot claim as a matter of right to be appointed on regular post of Junior Engineer. Learned advocate Mr. Dave relied upon the following averments made in the affidavit-in- reply filed on behalf of the respondents:

"6. It is submitted that the petitioner who was working as Vidhyut Sahayak (Junior Engineer) came to be posted at Dolvan Sub Division. The Dolvan Sub Division was newly created by bifurcating existing Valod and

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Vyara Rural Sub Division with effect from 13.01.2012. Dolvan Sub Division had started working independently with effect from 26.06.2012. Before that the petitioner was allotted work of Rural Electrification and accounting of store material of Dolvan Sub Division vide letter No.2397 dated 18.06.2012. According to this order, the petitioner has to look after the portfolio of following functions:

1. All work related to release of Agriculture connection in all schemes i.e. from registration to release with Junior Engineer (Rural Electrification), Valod Sub Division.

2. Issuance of Material to departmental staff as well as Contractors and all material transaction in E-urja and Maintenance of material account register.

3. Transaction of transformer replacement, theft, new transformer Material Requisite and Credit Receipt i.e. transformer accounting in respect.

4. Calculation of T & D losses and activities to be carried out for T & D losses reduction.

5. Work related to rectification of Single phase meter and replacement of faulty Meter.

6. Work related to all contractor i.e. issuance of sub work order, inventory in all respect with Junior Engineer (Rural Electrification), Valod Sub Division and process of contractor bill.

7. All work related with Transmission department.

8. Work related to Disconnection Pending dues.

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9. All work related to other Government department.

10. Any other work allotted by Deputy Engineer time to time and work of other Junior Engineer's in his absent i.e. work of Junior Engineer (Tech-1),

7. However, Petitioner was very negligent and Careless in his duty and used to disobey the instruction of his immediate Superior resulted in delay in Company's work. The narration of irregularities of the petitioner is as follows:

 The petitioner was allotted the work of Seal and Meter accounting of Dolvan sub division, hence he has to maintain seal and meter account register but he did not maintain any kind of register even after continuous instruction from his superior i.e. Deputy Engineer, Dolvan Sub Division.

 With a view to enhance the knowledge of Work the petitioner, he was deputed by Executive Engineer (O&M) Vyara for training of preparation of gate pass in e-Urja system, but the petitioner did not attend the training, thereby disobeyed the instruction of higher authority.

 There were repeated mistakes done by petitioner in his work such as accounting of Material, Material Requisition for pole and other Material, issuance of Sub work order, preparation of Contractor's bill. The petitioner was continually given guideline/instruction from his superior regarding routine mistakes in his work, but the petitioner did not take any care to rectify his mistakes, which has resulted in delay in passing of bill as well as delay in routine Work, which has spoiled the image of DGVCL.

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8. For the above disobedience by the petitioner, explanation was sought for by Deputy Engineer vide letter dated 07.01.2013 from the petitioner regarding not working properly and delaying the work of the company. The petitioner replied to the said letter of the Deputy Engineer vide letter dated 09.01.2013. Following letters were also written to the petitioner asking his explanation.

 An explanation asked by Deputy Engineer vide letter No.03 dated 17.01.2013 for not maintaining Seal and Meter accounting register and not attending e-urja training for preparation of gate pass.

 An explanation asked by Deputy Engineer vide letter No 10 dated 27.02.2013 for repeatedly not proper taken care for material management and delayed the work of DGVCL thereof.

 An explanation asked by the Deputy Engineer vide letter No.11 dated 06.03.2013 of the petitioner for inefficiency in passing the Contractors Bill and wrong reporting regarding passing of Contractors bill.

 Reporting regarding serious negligence towards duties in respect of the petitioner was made by the Deputy Engineer to the Executive Engineer (O&M), Vyara Division vide letter No. 2996 dated 17.06.2013.

 An explanation called by the Deputy Engineer vide letter No.2968 dated 07.08.2013 from the Petitioner for not submission of requirement or material to division Office, non- completion of meter replacement work in e- urja system, not regularly maintaining material accounting register and material gate-pass which has affected routine work of office.

 An explanation asked by the Deputy Engineer vide letter No.3199 dated 06.09.2013 of the petitioner regarding not taken care in

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completion of store work and maintenance of account register.

 An explanation asked by the Deputy Engineer vide letter No. 3355 dated 19.09.2013 of the petitioner regarding not obeyed the instruction of higher authority and delayed the work of DGVCL thereof.

 An explanation asked by the Deputy Engineer vide letter No. 3831 dated 10.10.2013 of the petitioner regarding not obeyed the instruction of higher authority and delayed the work of DGVCL thereof.

 An explanation asked by the Deputy Engineer vide letter No. 306 dated 09.01.2013 of the petitioner regarding not obeyed the instruction of higher authority to prepare DPR for lighting connections to the BPL beneficiaries during 2013-14 and complete RGGVY scheme closer Proposal work and delayed the work of DGVCL thereof.

 Even after repeated instruction from Deputy Engineer to complete the important work in time allotted to the petitioner, the petitioner not taken Proper case to complete the task, hence, the Deputy Engineer Vide letter No.12 dated 25.06.13 again asked petitioner to Submit various details regarding his Pending work i.e. Material account register, details of material account maintained in e-urja with gate pass, transformer replacement register maintained in e-urja with gate Pass, MRs and CRs accounting in all respect, meter replacement register maintain in e-urja with gate pass, pending contractors bills, contractors bill register details of T&D losses reduction work of 11 KV Vankala JGY Feeder etc. along with the planning to complete the pending work.This letter clearly shows the delay in work and negligence carried out by the petitioner during his tenure at Dolvan Sub Division.

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 Memo regarding adverse remarks in confidential report of the petitioner for the

dated 18.01.2014 by Executive Engineer (O&M), Vyara Division.

Copies of relevant documents such as explanation sought from the petitioner by concerned Deputy Engineer, memo issued to the petitioner, explanation given by the petitioner on this behalf is annexed herewith and marked as ANNEXURE-R1."

4.2 Relying upon the aforesaid averments learned advocate Mr. Dave submitted that the performance of the petitioner was not satisfactory and therefore, as per the terms and conditions of the appointment, the petitioner was not found fit for regular appointment. It was further submitted that the petitioner has been relieved from service and it is not the case of the termination by passing a stigmatic order. It was submitted that as the appointment of the petitioner was for a fixed period of two years, the said period came to an end w.e.f. 01.02.2014 and accordingly, the petitioner was relieved w.e.f. 02.02.2014. It was submitted that there was no disciplinary action contemplated against the petitioner but his services were simply not continued on completion of the period of two years.

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4.3 It was further submitted hat the allegations of victimization are also without any basis as the petitioner never raised any grievance while he was in service for any animosity of any of the officer with the petitioner. It was submitted that the allegations made by the petitioner are nothing but an afterthought. It was submitted by learned advocate Mr. Dave that the petitioner is relieved from the service and therefore, there was no termination of service of the petitioner and hence, the grievance raised by the petitioner with regard to the breach of principle of natural justice would not be attracted in the facts of the case as it is simple case of non- renewal of contract and/or relieving the petitioner at the end of the contract period.

4.4 It was therefore submitted that there was no question of providing any opportunity of hearing to the petitioner. It was submitted that the adverse remarks was not the only on the ground on which the suitability of the petitioner was judged by the respondent but as the overall performance of the petitioner was not up to the mark, the competent authority decided not to offer the appointment to the petitioner. It was

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submitted that no mala fide or arbitrariness is borne out from the facts of the case except making bald allegations and the petitioner has failed to substantiate the same by way of any evidence.

5.Having heard learned advocate for the respective parties and having gone through the material on record it is undisputed that the petitioner was appointed for a period of two years by appointment order dated 20.01.2012. Following terms of the appointment order are relevant:

"1. Your appointment to the post of Vidhyut Sahayak (Jr. Engineer) is for a fixed period of 02 years from the date of your joining.

2. You shall be paid a consolidated retainer ship of Rs. 13,000/- per month inclusive of all for the first year Rs. 14,000/- per month for the second year.

3. You shall have to undergo medical check up as per Company's rules and shall be continued only if you are found medically fit.

4. Your performance shall be observed for a period of 6 months and on the basis of your performance, your further continuation as Vidhyut Sahayak (Jr.

Engineer) for remaining tenure of 1-1/2 years shall be decided. If your performance if not found satisfactory, your appointment as Vidhyut Sahayak

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(Jr. Engineer) shall be discontinued without any notice.

5. On completion of 02 years, your performance shall be assessed for consideration to the post of Jr. Engineer. In case you are not found fit for regular appointment, this engagement shall come to an end."

6. From the above terms of the appointment order, the petitioner was subjected to the performance appraisal after six months and on completion of two years. After completion of six months from the date of joining, the performance of the petitioner was reviewed to permit him to continue for remaining period of one and half year and after completion of two years, performance of the petitioner was required to be assessed for consideration to the post of Junior Engineer.

7. From the facts emerging from the record it appears that the performance of the petitioner was not found satisfactory and as such, adverse remarks were also passed against the petitioner and by office order dated 04.03.2014 issued by the respondent No.2 considering the non-satisfactory work of the petitioner during Vidhyut Sahayak period of two years, his services were not recommended for regular appointment as Junior Engineer.

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8. The above Office Order passed by respondent No.2 cannot be said to be a stigmatic order as the said order was never given to the petitioner and was passed after the petitioner was relieved from service by order dated 01.02.2014. The order dated 01.02.2014 (Pg 4 as Annexure-D) only states that the petitioner along with three other Vidhyut Shayahaks working under Surat Rural Circle who have completed their contractual engagement period of two years were relieved from the respondent company from the date as shown against their name. Accordingly, the petitioner was relieved from service. Therefore, the grievance raised by the petitioner, that his services were terminated by order dated 01.02.2014 on account of adverse remarks resulting into stigmatic termination order, is not borne out from the record.

9. By order dated 04.03.2014 passed by respondent No.2 it was only considered as to why the performance of the petitioner was not found satisfactory pursuant to the adverse remarks from his confidential report for the year 2012-13 in the appeal preferred by the petitioner.

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10. In view of the above facts reliance placed by the petitioner on the decision of the Apex Court in case of Dipti Prakash Banerjee (supra) as well as Anakbhai Bachubhai Gida (supra) are not applicable in the facts of the case as there is no termination order but only a relieve order is passed by the respondents on 01.02.2014 on completion of the contractual engagement period of two years.

11. In view of the foregoing reasons, the petition fails and is accordingly dismissed. Rule is discharged.

(BHARGAV D. KARIA, J) JYOTI V. JANI