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N.M. Mandalia Vs. Bhavnagar Municipality - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1984)2GLR837
AppellantN.M. Mandalia
RespondentBhavnagar Municipality
Cases ReferredSukhbans Singh v. State of Punjab
Excerpt:
.....inquiry was made except taking into consideration the previous show cause notices and the petitioner's denial thereto as well as the charge-sheet and the petitioner's rebuttal of the charges levelled against him. otherwise the material before the enquiry officer was allegations on the one hand made in the three show cause notices and the charge-sheet and denials on the other made in the replies to the show cause notices as well as the charge-sheet......petitioner submitted a written statement in answer to the charge-sheet on 27th january 1978. the enquiry officer fixed 8th march 1978 as the date on which the petitioner was required to attend with his witnesses. the petitioner did not appear on that date for reasons stated in paragraph 19(i) of the petition. it is not necessary to go into the question whether the petitioner deliberately remained absent as alleged by the management but it is sufficient to assume that he did not present himself on 8th march 1978 whereupon the enquiry officer submitted his report on 10th march 1978. it may, however, be clarified that even though the petitioner did not remain present on 8th march 1978, the management did not examine any witness before the enquiry officer in support of the charge levelled.....
Judgment:

A.M. Ahmadi, J.

1. By an order dated 24/25th November 1975, Annexure 'A', the petitioner was appointed on probation as a Legal-cwm-Labour Officer in the scale of Rs. 223-10-323-20-403-29-461 plus allowances as admissible under the rules initially for a period of three months. The probation period was extended from time to time thereafter. It is the contention of the petitioner that he was confirmed in due course but that is a matter of controversy which is not required to be adjudicated upon for the disposal of this petition.

2. It appears that during the course of service the petitioner is alleged to have misconducted himself. The first show cause notice was issued on 27th December 1977. The second and the third show cause notices were issued on 30th December 1977. To all these three show cause notices, the petitioner replied on 31st December 1977 denying all the allegations made against him. Thereupon the management decided to institute a departmental inquiry against him and served him with a charge-sheet dated 24th January 1978. After the service of the charge-sheet inspection of certain documents was sought with which we are not concerned. The petitioner submitted a written statement in answer to the charge-sheet on 27th January 1978. The Enquiry Officer fixed 8th March 1978 as the date on which the petitioner was required to attend with his witnesses. The petitioner did not appear on that date for reasons stated in paragraph 19(i) of the petition. It is not necessary to go into the question whether the petitioner deliberately remained absent as alleged by the management but it is sufficient to assume that he did not present himself on 8th March 1978 whereupon the Enquiry Officer submitted his report on 10th March 1978. It may, however, be clarified that even though the petitioner did not remain present on 8th March 1978, the management did not examine any witness before the Enquiry Officer in support of the charge levelled against the petitioner. In other words, on the basis of the allegations made in the charge-sheet and the documents produced before the Enquiry Officer, the Enquiry Officer submitted his report on 10th March 1978. This report was placed before the Executive Committee of the Municipality which by its Resolution No. 5814 of even date decided to put an end to the employment of the petitioner by 'a simple termination order'. The petitioner, therefore, filed this petition challenging the order of termination mainly on the ground that it was penal in nature. He has also challenged the order on the ground that the Enquiry Officer was both the prosecutor and the Judge inasmuch as one of the charges levelled against the petitioner was that he had made allegations against the Chairman of the Executive Committee of the Municipality.

3. In the affidavit-in-reply filed on behalf of the respondent, it is mainly contended that the impugned order is an order of termination simpliciter and is not by way of a penalty and, therefore, the petitioner is not entitled to any relief since he had no right to the post as he was a mere probationer. It is also denied that the petitioner was at any point of time confirmed as a Legal-cum-Labour Officer of the Municipality. In paragraph 19 of the affidavit-in-reply it is stated that the petitioner was informed about the date of hearing but in order to avoid the inquiry, he sent an application for casual leave which was rejected. He stated that the petitioner had no right to assume that his application for leave would be granted and, therefore, he ought to have attended the inquiry on 8th March 1978. In paragraph 20 of the affidavit-in-reply it is stated that as the petitioner did not avail himself of the opportunity given to him and remained absent on 8th March 1978, there was no question of 'further inquiry' and the matter had to be decided on the basis of the previous three show cause notices, the charge-sheet and the replies given by the petitioner to the show cause notices. It is further averred that the petitioner thus had ample opportunity to refute the charges against him and no personal hearing could be insisted upon. In answer to the petitioner's allegation that the Enquiry Officer was both a prosecutor and a Judge, it is averred that the Enquiry Officer was not supposed to adjudicate on the question whether the charge was proved against the petitioner. That was a matter on which the Executive Committee had to take a decision. In other words, it is contended that he was merely appointed to collect the evidence against the petitioner and it was not his function to adjudicate on the question whether the charge of misconduct was established against the petitioner. It is lastly contended that the services of the petitioner are terminated by a simple order of termination under which no stigma is intended to be attached. Proceeding further, the deponent, the Chief Officer, avers in paragraph 20 as under:

I submit that I am willing to make a solemn declaration before the Honourable Court to say that the order of termination of the services of the petitioner is without attaching any stigma to it and that his services stand terminated simply as such.

It is manifest from paragraph 31 of the affidavit-in-reply that no witness was examined on behalf of the management at the said inquiry in support of the charges levelled against the petitioner. In short, the contention of the management is that the petitioner being a probationer, had no right to the post and since his services have been terminated by a simple order of termination, the petitioner is not entitled to any relief whatsoever from the Court.

4. I propose to assume that the petitioner was at the date of the termination of his services a probationer. No doubt the petitioner contends that he was confirmed in the post of Legal-cum-Labour Officer before the date of the order of termination but I do not consider it necessary to adjudicate upon that controversy. It is sufficient for the disposal of this petition to assume that the petitioner was a probationer as alleged by the management.

5. It is clear from the facts that after the appointment of the petitioner in November 1975, he functioned as a Legal-own Labour Officer of the Municipality and since his services were not confirmed according to the management, it may be assumed that he continued as a probationer. During the course of his employment he was required to attend to cases in the Labour Court. It is alleged that while contesting the cases in the Labour Court, he did not vigorously put forth the management's point of view and as a result the Labour Court ruled against the management from time to time. It is also alleged that he behaved in a rude manner and made allegations against the Chairman of the Executive Committee on 18th October 1976. He is also alleged to have got an entry made in his service book by misleading the In-charge Chief Officer that he was a permanent employee of the Municipality. It is further alleged that in one of the references wherein an award was passed ex parte in favour of the management, he gave his consent to the said ex parte award being set aside to the detriment of the interest of the management. In another matter despite specific instructions from the management to appear on 27th December 1977 before the Labour Court, he deliberately remained absent and thereby flouted the instructions of the management. These are some of the charges levelled against the petitioner in the charge-sheet dated 24th January 1978. From these charges it becomes clear that one of the acts of misconduct alleged against the petitioner was that he made allegations against the Chairman of the Executive Committee on 18th October 1976. (vide paragraph 2 of the charge-sheet, Annexure 'H'). This charge could obviously be supported on the complaint or statement of the Chairman of the Executive Committee. The inquiry was conducted by the Chief Officer of the Municipality and his report was submitted to the Executive Committee. The Chairman (who was the same person against whom allegations were made) participated in the Resolution which was passed on 10th March 1978. The Resolution No. 5814 bears the signature of the Chairman of the Executive Committee of the Municipality. It is, therefore, obvious that the Chairman was a party to the decision taken by the Executive Committee to terminate the services of the petitioner on the charges having been found proved at the said inquiry. There is, therefore, substance in the allegation that the Chairman of the Executive Committee was both a prosecutor and a Judge in that one of the allegations made in the charge-sheet was that the petitioner had made certain accusations against the Chairman of the Executive Committee on 18th October 1976 and the Chairman took a decision whether or not to continue the services of the petitioner on the basis of the report submitted by the Chief Officer of the Municipality. He was clearly biased against the petitioner and he ought not to have participated in decision-making because one of the grounds for termination of services was that the petitioner had made unfounded allegations against the Chairman of the Executive Committee. He was, therefore, disqualified from participating in decision-making since he had complained about the behaviour of the petitioner against him and was clearly a witness to the inquiry. Such a decision taken by the Executive Committee to which the Chairman was himself a party, can never be said to be an objective decision because the possibility of the decision having been coloured by the Chairman's bias towards the petitioner cannot be ruled out.

The resolution passed by the Executive Committee of the Municipality No. 5814 is in two paragraphs. The first paragraph discloses in no uncertain language that the report of the Enquiry Officer was placed before the Executive Committee and the same was taken into consideration before the impugned decision was taken to terminate the services of the petitioner. In the first paragraph of the Resolution there is a mention that the report of the Enquiry Officer holding the charge of misconduct proved was taken into consideration and discussed at the meeting of the Executive Committee. Not only that, it also mentions that the Executive Committee whole heartedly agreed with the conclusion of the Enquiry Officer that the charges of misconduct were proved. Based on this conclusion duly approved by the Executive Committee, the latter took a decision to terminate the services of the petitioner by a simple order of termination. In the second paragraph of the Resolution it is stated in unmistakable terms that the charges proved against the petitioner were of a serious nature and, therefore, the services of the petitioner could not in the interest of the Municipality be continued any further. It is then stated that taking into consideration the educational qualifications of the petitioner, it is decided to terminate the services of the petitioner by a simple order of termination. The order of termination, was directed to be implemented in the evening, that is, after office hours on 10th March 1978. From this Resolution of the Executive Committee of the Municipality, it becomes obvious that the Enquiry Officer had come to the conclusion that the charges of misconduct levelled against the petitioner were proved. He had submitted a report in that behalf to the Executive Committee of the Municipality. It is, therefore, difficult to accept the statement made in the affidavit-in-reply to the effect that the Enquiry Officer 'was not supposed to adjudicate the question whether the charge-sheet was proved against the petitioner'. In fact he adjudicated upon the charge and reported that the same was proved. That report was considered by the Executive Committee of the Municipality. After discussing the merits of that report, the Executive Committee came to the conclusion that it was not in the interest of the Municipality to continue the services of the petitioner. It was then decided to terminate his services by what is described as a simple order of termination. This leaves no room for doubt that the services of the petitioner were terminated, may be by a simple order of termination, on his having been found guilty of misconduct. There can, therefore, be no doubt that it was by way of a penalty. It is, therefore, difficult to accept the contention of the Municipality that the order of termination was not intended to attach any stigma and the subsequent clarification made in paragraph 20 of the affidavit-in-reply to the effect that no stigma was intended to be attached is of no consequence because ex-facie the resolution of the Municipality as well as the order conveyed to the petitioner make it clear that the services have been terminated for proved misconduct. I am, therefore, of the opinion that the order of termination is for proved misconduct and, therefore, carries with it a stigma or slur.

6. It was submitted by Mr. Shah for the Municipality that since the petitioner was a mere probationer, be had no right to the post and, therefore, his services could be terminated without assigning any reason whatsoever on the ground that he was not suitable for the job of Legal-cum-Labour Officer. But even in the case of a mere probationer, if the services are sought to be terminated on the ground of misconduct, a regular inquiry must be held against him. In the instant case, after the charge-sheet was submitted on 24th January 1978 and the petitioner denied the allegations against him, by his reply dated 27th January 1978, no regular inquiry was made except taking into consideration the previous show cause notices and the petitioner's denial thereto as well as the charge-sheet and the petitioner's rebuttal of the charges levelled against him. This becomes clear if we peruse the averments made in paragraph 20 of the affidavit-in-reply to the following effect:

Therefore, there is no question of further inquiry at all but the matter had to be decided on the show cause notices, the charge-sheet and the replies given by the petitioner to the show cause notices. The petitioner had thus ample opportunity to refute the charges against him and no personal hearing can be insisted upon.

This would show that no regular inquiry was held against the petitioner in the sense that assuming the petitioner wilfully remained absent on 8th March 1978 it was incumbent on the Municipality to adduce evidence before the Enquiry Officer in support of the charges levelled against the petitioner. Otherwise the material before the Enquiry Officer was allegations on the one hand made in the three show cause notices and the charge-sheet and denials on the other made in the replies to the show cause notices as well as the charge-sheet. If there was no other material before the Enquiry Officer, it is difficult to understand on what proof the Enquiry Officer came to the conclusion that the charges levelled against the petitioner were proved. Besides, it is difficult to understand why the Enquiry Officer did not accommodate the petitioner if the petitioner had already applied for leave on 8th March 1978. But that apart, it is clear from the averments made on record that after the Enquiry Officer submitted his report to the Executive Committee, the petitioner was not informed about the same nor was he furnished with a copy of the report. The Executive Committee proceeded to take a decision on the basis of the inquiry report. It is, therefore, clear that the principles of natural justice were violated because the petitioner was not given an opportunity to controvert the findings recorded by the Enquiry Officer.

7. On the aforesaid two grounds the order of termination must be quashed. Mr. Shah invited my attention to the decision of the Supreme Court in Sukhbans Singh v. State of Punjab : (1963)ILLJ671SC wherein it is observed that a probationer cannot, after the expiry of probationary period, automatically acquire the status of a permanent member of a service, unless of course the rules under which he is appointed expressly provide for such a result. In paragraph 10 of the judgment the Supreme Court after referring to the decision in P. L Dhingra's case : (1958)ILLJ544SC observed that one of the tests laid down in that case for determining whether the termination of service was by way of punishment or otherwise is whether under the Service Rules, but for such termination, the servant had a right to hold the post. Mr. Shah submitted that since the petitioner was a probationer, he had no right to the post and, therefore, on the test laid down in Dhingra's case the order of termination cannot be said to be penal in nature.

8. I am afraid that the interpretation sought to be put by Mr. Shah on the basis of the test propounded in Dhingra's case to which a reference is made by the Supreme Court in paragraph 10 of its judgment cannot be accepted. It is one thing to say that a probationer continues on probation after the period of his probation expires unless the rules provide for automatic confirmation but it is altogether a different thing to say that in the absence of a rule providing for automatic termination on the expiry of the probation period the service comes to an end unless the period of probation is extended. If the period of probation is not extended, there is no automatic confirmation unless the rules so provide but there is no automatic termination either because otherwise it would be redundant to say that the probationer continues on probation in the absence of a rule for automatic confirmation. I am, therefore, of the opinion that the decision on which Mr. Shah places reliance has no application to the facts of the present case.

9. In the result the order of termination is quashed and set aside. The respondent Municipality is directed to reinstate the petitioner forthwith. I propose to make it clear that I have decided this petition on the assumption that the petitioner is a probationer. I have not negatived the petitioner's contention that he was confirmed in service because I have not entered into that controversy.

10. On the question of back wages since the order of termination was passed on 10th March 1978, Mr. Shah was right in submitting that the possibility of the petitioner having been gainfully employed elsewhere during this period cannot be ruled out and, therefore, an inquiry is necessary. I, therefore, direct the petitioner to file as affidavit disclosing whether he had taken up any other occupation after the date of termination of his service and if yes, what was his income therefrom. If he had taken up any other employment, he should produce along with the affidavit a letter of his appointment and disclose the salary and allowances received by him under a certificate to be obtained from the employer. After the said affidavit is filed, it will be open to the Municipality to file an affidavit controverting the statements made by the petitioner if that is thought necessary. The petitioner is given two weeks' time to file his affidavit. A copy of the affidavit will be served on Mr. D.U. Shah. Two weeks thereafter the Municipality will file its affidavit. If the Municipality files its affidavit, the petitioner will file a rejoinder if he so desires within one week thereafter. Orders as to costs are reserved. The rule is made absolute insofar as it relates to the termination order.


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