Namdeo s/o Yadorao Dhakate vs State of Maharashtra

B.P. Dharmadhikari, J.(Oral)—Petitioner challenges judgment dated 28.03.2002 delivered by the Maharashtra Administrative Tribunal, dismissing T.A. No.784 of 1992. This transfer application was initially presented to this Court as Writ Petition No.666 of 1986. Challenge in said matter before this Court and thereafter before the MAT was to an order of termination dated 31.03.1986 issued by respondent no.2. As per that order, his services were sought to be terminated w.e.f. 04.04.1986 after holding that his performance was found most unsatisfactory. In Writ Petition No.666/1986, this Court stayed the order of termination on 03.04.1986, and hence, petitioner continued in service. After constitution of the Maharashtra Administrative Tribunal, said Writ Petition was transferred to its Nagpur Bench where it came to be registered as Transfer Application No.784/1992. While dismissing that Transfer Application on 28.03.2002, the Maharashtra Administrative Tribunal has found order of termination simpliciter in nature and petitioner was found to be appointed as an adhoc employee purely on temporary basis. Because of this finding, it dismissed the Transfer Application.

Petitioner thereafter approached this Court by filing the instant petition on 10.04.2002. It appears that the matter could not be heard till 17.05.2002, and in the meanwhile, respondent no.2 vide order dated 07.05.2002 brought an end to his service. Consequential order was issued by respondent no.3 on 08.05.2002 &. Petitioner was relieved. He amended his Writ Petition on 22.05.2002 to incorporate challenge to this order dated 07.05.2002 and 08.05.2002. It is in this background, that we have heard Shri. Chitaley, learned counsel for the petitioner and Shri. Lonare, learned A.G.P. for respondents.

Learned Advocate Shri. Chitaley for the petitioner by placing reliance upon the judgment of Hon�ble Apex Court in the case of Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences and another, reported at AIR 2002 Supreme Court 23 and in the case of V.P. Ahuja v. State of Punjab and others, reported at (2000) 3 Supreme Court Cases 239 submits that, mere finding that the petitioner was an Ad hoc temporary employee is not answer to the order of termination dated 31-03-1986.

According to him, the order is stigmatic and on that ground only needed to be quashed and set aside. He further submits that because the petitioner demanded his salary for the month of November, 1985, he is being victimized. On 03-01-1986, he was given time of one month to improve and on 18-02-1986 there was a direction to hold preliminary enquiry. One Shri. Shirke conducted that enquiry and on 13-03-1986, about the work of the petitioner, he has put the remark "fair". There is no other enquiry and no other grading of the work of the petitioner. After this report, within 17 days the impugned order of termination came to be issued. It is, thus, for the false reasons.

He further contends that though the petitioner continued in employment because of interim orders passed by this Court on 03-04-1986, mere fact that he continued on the strength of interim orders was not sufficient to discard the subsequent evaluation of his performance. He states that till termination in May, 2002, the petitioner was given time bound promotion. His increments were released regularly and he was also sent to Hyderabad for regular training. In view of his performance, he was also given the benefit of better pay scale. These facts on record have been thus lost sight of by the Maharashtra Administrative Tribunal (hereinafter referred to as "the MAT").

Our attention has been invited to Explanation(viii) of Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979, to urge that the termination of the petitioner cannot be viewed as termination simpliciter. The judgment of the Hon�ble Apex Court in the case of State of U.P. and others v. Ram Bachan Tripathi, reported at AIR 2005 Supreme Court 3212 is relied upon to demonstrate what constitutes the stigma.

By placing reliance upon the averments made in paragraphs 29 and 29B of the Writ Petition, the request is being made to grant relief of reinstatement with full back wages & continuity.

Learned Assistant Government Pleader Shri. Lonare for the respondents, has invited our attention to the stand taken on affidavit before the MAT by the respondents. He submits that the petitioner was never regularly selected and appointed on permanent basis. As such, he was always an Ad hoc employee continued temporarily and till the receipt of duly selected candidates from the Regional Subordinate Services Selection Board. He had no right to be absorbed or to any post. As such, it was not necessary to hold any regular Departmental Enquiry against him and after giving him an opportunity to improve. Because of the complaint received against him, preliminary enquiry was conducted and in that enquiry as his performance was found not satisfactory, by a non stigmatic order he has terminated. He submits that the MAT has evaluated this stand and accepted it. He, therefore, prays for dismissal of the Writ Petition.

In reply, learned Advocate Shri. Chitaley for the petitioner submits that the petitioner was selected as his name was sent by the Employment Exchange after proper selection process. Not only this but, thereafter, twice the scheme for regularising the employees like him was pronounced and in the list of employees selected for regularization, the name of the petitioner figured. He contends that these facts also demonstrate that the performance of the petitioner was upto the mark.

The fact that the petitioner was appointed after his name was sent for consideration by the Employment Exchange and after holding necessary interview, is not in dispute. Though the appointment order mentions that his appointment was on temporary basis for the period of six months or then till the receipt of duly selected candidates from the Selection Boards, the fact that after his initial appointment by order dated 17-09-1983 he continued till 31-03-1986 when termination order was issued is not in dispute. After that order also because of the interim stay granted by this Court he continued to work till May, 2002. On 07-05-2002, because of the adverse judgment delivered by the MAT on 28-03-2002, which is impugned before this Court in the present Writ Petition, ultimately he came to be terminated.

Though the petitioner has complained that he was required to make a representation to the office of the Collector, Nagpur pointing out that his salary for the month of November, 1985 was withheld without any reason, it appears that on 08-12-1985 there was some complaints about his working. We cannot in this jurisdiction for the first time record a finding whether the complaint made by the petitioner was first in point of time or then whether on account of said grievance dated 08-12-1985, he decided to make representation. The fact remains that his salary for the earlier month i.e. for November, 1985 was not received by him till 08-12-1985.

On 03-01-1986, he was given one month notice to improve in his work in view of communication dated 26-08-1985 asking him to make improvement and a warning was given to him. The communication dated 26-08-1985 is on the subject of non imparting the training as per Rules to the students from Wireman Department. It is general in nature and no prior instances or violation or breach of any condition is pointed out therein. On 18-02-1986, one Shri. B.K. Shirke, Inspector, was asked to hold preliminary enquiry against the petitioner and submit his report within 15 days. On 13-03-1986, the Principal of Industrial Training Institute, Katol has informed the petitioner that during that inspection, the said inspector has given a remark "fair". In view of that remark, the petitioner has been asked to show the improvement in his work. On 31-03-1986, the impugned termination order came to be issued. The contents of said termination order are reproduced below :

" On having held an enquiry into the training work of Shri. N.Y. Dhakate, Craft Instructor (Wireman) Industrial Training Institute, Katol, his office work is found to be very much unsatisfactory. And therefore, as the services of Shri. N.Y. Dhakate are no longer required to this department, his services are terminated w.e.f. 4-4-1986 (A.N.)"

In reference, it mentions letter dated 03-01-1986 giving the petitioner time to improve and later communication dated 18-02-1986 informing him about the decision to hold preliminary enquiry. It does not point out any subsequent inspection or evaluation of the work of Petitioner.

Before this Court, the petitioner has placed an affidavit on 27-08-2009 and in that affidavit he has pointed out a list prepared by the Principal of the Industrial Training Institute, Katol. In that list, the names of various employees like the petitioner are mentioned. The name of the petitioner is at Serial No.1 and against his name date 22-09-1983 has been shown as the date of first appointment. It is also mentioned that his appointment was/is in accordance with the prevailing rules. On 08-03-1999, a Government Resolution regarding the regularisation of irregular appointments under the jurisdiction of the Regional Subordinate Services Selection Boards, District Selection Committees and Employment Exchanges was issued. The decision to regularise the services of 3761 employees was reached and it was subject to the fulfilment of certain conditions like (1) condition was that; such employee should have completed a continuous service of one year as on 01-04-1999 and his conduct should be good, (2) vacancies should be available and (3) roster point/reservation needed to be adhered to. On 20-01-2001, the Deputy Director of Vocational Training circulated a seniority list and in that seniority list, the name of the petitioner is at Serial No.123. It also mentions that he belongs to scheduled tribe. Other decision on regularisation is taken by the State Government on 19-03-1999 and about 1061 temporary employees are found eligible for such regularization. The conditions to be fulfilled are almost the same.

On 31-07-1991, the petitioner was deputed to Administrative Training Institute, Hyderabad for training in wireman course and on 18-05-1999 he was given benefit of higher pay scale with effect from 22-09-1983 as he completed 12 years qualifying service.

It is, in this background, the challenge to the termination order and to the judgment delivered by the MAT needs to be looked into.

In State of U.P. and others (supra), in paragraph 6, the Hon�ble Apex Court observes that "stigma is understood to be something that is detraction from the character or reputation of a person. It is blemish, imputation, a mark or label indicating a deviation from a norm."

In Pavanendra Narayan Verma (supra) the Hon�ble Apex Court has considered three judicially evolved tests to determine whether the termination is simpliciter or punitive. In paragraph 21 Hon. Apex Court explains that it is necessary to find out whether prior to the termination there was (1) a full scale formal enquiry, (2) whether it was into allegations involving moral turpitude or misconduct and (3) whether it culminated in a finding of guilt. If all these three factors are present, the termination is to be held punitive irrespective of the form of the termination order. The Hon�ble Apex Court also states that if any one of the three factors is missing, the termination needs to be upheld. In V.P. Ahuja (supra), in paragraph 7, the Hon�ble Apex Court has held that "a probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services terminated in a punitive manner without complying with the principles of natural justice".

Paragraph 6 of impugned judgment delivered by the MAT shows that; (1) the petitioner was not a regularly selected candidate, (2) he was appointed on temporary basis for specific duration, (3) his appointment was subject to condition that the total period of service would not exceed 364 days�, (4) the appointment was purely on temporary basis till a candidate selected by the constituted Selection Board became available, (5) it also holds that the employer has found that the performance of the petitioner was not satisfactory, (6) he was given an opportunity to improve his performance, (7) he did not improve, (8) preliminary enquiry was conducted and (9) in that enquiry his performance was found not satisfactory.

In paragraph 8 of the judgment of the MAT, in view of its finding on facts mentioned supra, it proceeded to consider whether the impugned order of termination was punitive or not. It found that there was no full scale formal enquiry conducted with a view to evaluate his performance and there was no allegation of any moral turpitude or misconduct. There was no inquiry culminating into a finding of guilt or commission of any such misconduct by the Petitioner. It therefore concluded that none of the three factors mentioned by the Hon�ble Apex Court in its judgment in the case of V.P. Ahuja (supra), was present. As such, the termination was not punitive and therefore, it dismissed the challenge.

We can not ignore the fact that on 03-01-1986 or till the decision to hold preliminary enquiry was reached on 18-02-1986, the employer did not find it necessary to terminate the petitioner but gave him an opportunity to improve. The preliminary enquiry was envisaged to evaluate that performance or improvement That enquiry is held by one Shri. B.K. Shirke, Inspector of the Regional Office at Nagpur. It is the case of the petitioner that he was not given any opportunity during that enquiry and this fact is not in dispute. On 13-03-1986, the Principal of the institute where the petitioner was working has sent him a communication pointing out that said inspector has put a remark "fair". He was directed to show improvement in his work of imparting training. He also issued caution that in default, the suitable action would be taken against him. The petitioner has pointed out that the said inspector has inspected the work of 13 staff members and he found 4 employees to be good, 8 to be fair and 1 employee to be poor. This remark, therefore, does not support the defence that the inspector found the performance unsatisfactory. An unsatisfactory performance could not have been labelled as "fair". Even communication dated 13-03-1986 directed the petitioner to show improvement in his Government work of imparting training. He has been threatened that the suitable action would be taken against him if he failed to show improvement in his office work. Within 17 days thereafter, the order of termination has been issued. The order of termination does not show that after 13-03-1986 till 31-03-1986 there was any development which established that the petitioner did not improve or failed to show improvement. On the contrary, the reliance on termination order is on enquiry conducted by Inspector Shri. Shirke only. The Deputy Director (respondent no.2 who has passed the termination order) has observed that the office work of the petitioner is found to be "very much unsatisfactory". This opinion is expressed "on having held an enquiry" into the training work of the petitioner. It does not even put on record the fact that said enquiry was only preliminary inquiry & the Petitioner was not given any opportunity in it. Any person reading this order will find it not simpliciter. In the light of the language employed in termination order dated 31-03-1986 and communication dated 13-03-1986 mentioned supra, we find absolutely nothing on record to conclude that the work of the petitioner was even unsatisfactory much less "very much unsatisfactory". The MAT has not considered this aspect. Remark "fair" can not be construed as adverse at all. Even in worst case, if the remark "fair" is to be read as indicating unsatisfactory work, the opportunity to improve given to the petitioner by the Principal of the Industrial Training Institute cannot be ignored. The letter sent by the Principal of the Industrial Training Institute on 13-03-1986 shows the assessment of training work of the petitioner to be fair and still the petitioner has been given opportunity to improve his office work. In termination order, respondent no.2 records that Petitioner''s office work was found to be very much unsatisfactory.

The facts above, therefore, show that the termination order is based upon the nonexistent or incorrect or false material.

Though the petitioner has continued in employment after 31-03-1986 upto 07-05-2002 due to the interim orders passed by this Court, his performance during said period can not be ignored. It is not even alleged to be unsatisfactory. During pendency of this petition before this Court or before the MAT, no application was moved by the respondents pointing out that as the performance of the petitioner is not proper or it was necessary to terminate his services to employ a suitable employee. There was no prayer made at any point of time for vacation of interim orders. On the contrary, it is seen that, the petitioner was selected for training, he was given annual increments and also the benefits of higher pay scale after completing 12 years of service. All these facts cumulatively show that the reason of "very much unsatisfactory service" assigned by respondent no.2 is false & cannot be accepted. MAT has discarded all together the service rendered by the Petitioner after 31.03.1986 on the erroneous ground that it was because of the interim orders of this Court in W.P. 666/1986.

Though the petitioner was not a permanent employee or was not expressly placed on probation, it is apparent that he was working against a permanent post. In absence of present litigation or termination dated 31-03-1986, he could have been given benefit of above mentioned policy decisions to regularise the services of the employees who were recruited by relaxing the conditions of selection through the Regional Subordinate Services Selection Board. The fact that the petitioner is temporary employee does not mean that his employment can be put to an end on false or incorrect reasons arbitrarily. Here we find that, for the false and nonexistent reasons his service has been terminated. The contention that as the petitioner demanded his salary and moved a representation on 12-12-1985 for it, his harassment started, needs to be kept in mind. If that be correct, inference of victimisation must be drawn as a false or incorrect reason has been used to terminate the Petitioner.

While discussing the order of the MAT, we have noted herein above nine circumstances noted by it and the conclusions reached by it. In view of this discussion, we find that, the MAT has not approached the controversy in right perspective. Merely because the employee is temporary, it could not have held that the termination in this case, is simpliciter. On the contrary, we find that in termination order there is express mention of an enquiry conducted into training work of the petitioner and thereafter a conclusion that his office work was found to be very much unsatisfactory. When there is no material with Employer to support this conclusion and in enquiry, it did not give the petitioner any opportunity, such termination order cannot be sustained. When the remark after inspection is "fair", it is apparent that the Respondents have abused their power & acted highhandedly.

Accordingly, we quash and set aside the termination order dated 31-03-1986 as also judgment delivered by the MAT on 28-03-2002. The respondents are directed to reinstate the petitioner in service.

As the services of the petitioner were never regularized, the relief of continuity cannot be given to him at this stage. However, it appears that for the candidate like him, initially on 08-03-1999 and thereafter on 19-03-1999, a scheme for regularisation was evolved and about 1061 temporary employees were to be considered for regularization. In this situation, we direct the respondents to apply those norms and to find out whether the services of the petitioner could have been or can be regularized. If his services are found fit & worth for regularization, he shall be given benefit of continuity in service from the date of his initial appointment till his reinstatement.

Though the petitioner has requested for grant of full back wages, in this situation, we grant him 50% back wages for the period from 07-05-2002 till his reinstatement back in service.

Rule made absolute accordingly. Writ Petition is, thus, partly allowed and disposed of. No costs.