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Bombay High CourtIndian Cases

Uttam Jagannathrao Bodke vs State Of Maharashtra And Ors. on 3 September 2001

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Bombay High Court
Uttam Jagannathrao Bodke vs State Of Maharashtra And Ors. on 3 September, 2001
Equivalent citations: 2002(3)BOMCR182
Author: B.H. Marlapalle
Bench: B.H. Marlapalle, N.V. Dabholkar

B.H. Marlapalle, J.

1. The petitioner was employed as Accounts Officer under the respondent No. 2 Corporation and he has brought in question the legality and propriety of the order of termination dated 31st December, 1989 issued by the Managing Directing of respondent No. 2.

2. On completion of his graduation the petitioner came to be appointed as Accounts Assistant under the Maharashtra State Co-operative Marketing Federation Limited which is now called as Cotton Growers Marketing Federation and he joined the employment of respondent No. 2 on 15th April, 1976. He came to be promoted to the post of Accounts Officer Grade-II with effect from 1st October, 1976 and he was given the reward of annual increment with effect from 1st October, 1977. He was further promoted to the post of Accounts Officer Grade-I with effect from 9th October, 1983 and the reward of extra increment was granted to him with effect from 1st April, 1976 in appreciation of his performance. He was issued a show cause notice firstly on 31st October, 1988 and a second show cause notice on 6th December, 1988. He submitted his reply to the first show cause notice on 18th October, 1988 and to the second show cause notice on 12th December, 1988. Before this, by office order dated 29th August, 1988, he was transferred as Accounts Officer, Amrawati factory on administrative ground and he was called upon to hand over the charge to the Regional Manager, Parbhani and proceed to Amrawati factory for relieving Shri Ambrose Leo. Pursuant to this order he went to Amrawati, for reporting but he was not allowed to join the duties due to the acts attributable to a group of workers in the said factory. This was brought to the notice of the management by the petitioner himself and vide office order dated 13th October, 1988 he was directed to proceed on compulsory leave for two months pending detailed inquiry into the charges levelled against him. At the same time he was informed that he shall stay at Amrawati and shall not leave the headquarters. However, this office order was addressed to the petitioner at his Parbhani address. Pursuant to the two show cause notices and the reply submitted by the petitioner nothing further was done by way of appointing an Inquiry Officer so as to investigate/inquire into charges levelled against the petitioner, by the Managing Director of respondent No. 2, till the impugned termination order was issued.

3. Affidavit in reply has been filed on behalf of respondent No. 2 and it has been stated that the termination order does not caste any stigma and it cannot be treated to be an order of punishment. However, the affidavit alleges that the petitioner was careless while discharging his duties and he caused financial loss to the employer while settling the final payment of M/s. Pawan Trading Company. He was supposed to deduct the amount of Rs. 1-Lakh while settling the final payment to the said company and due to his negligent acts the said company was over paid. Regarding the compulsory leave it is stated that the petitioner was not allowed by the workers at the Amrawati factory to join his duties and he expressed fear to his life due to the agitated mood of workers as is clear from the letter dated 18th October, 1988 and, therefore, the management thought it fit to ask him to proceed on compulsory leave. It is also stated that the petitioners explanation to the two show cause notice was not found satisfactory and the petitioner has been blamed for allowing Junior Accountant Shri Chawala to commit a fraud to the tune of Rs. 50,000/-. A preliminary point also has been raised regarding the maintainability of the petition and it is contended that respondent Nos. 2 and 3 are not the State instrumentality under Article 12 of the Constitution and, therefore, this writ petition filed under Articles 226 and 227 of the Constitution was not tenable. However, the original affidavit as well as the additional affidavits filed by respondent Nos. 2 and 3 do not explain the power to issue an order of termination/discharge simpliciter against a permanent employee.

4. During the pendency of the petition respondent No. 2 Corporation was wound up and respondent No. 4 is alleged to be the successor of the said respondent No. 2. Respondent No. 4, pursuant to our-order, has filed return and stated that though it is successor of respondent No. 2 the liability in respect of the employees of respondent No. 2 is that of the old Corporation only and the respondent No. 4 is not responsible for such liabilities.

5. After hearing the learned Counsel, for the respective parties and perusal of the averments made in the petition as well as the returns filed by the respective parties it is clear that respondent No. 2 as well as respondent No. 4 do fall in the category of State instrumentalities/authorities within the meaning of Article 12 of the Constitution and the writ petition is maintainable for deciding the challenge raised by the petitioner.

6. It was stated across the bar that respondent No. 2 Corporation had drafted services rules including the rules for discipline and appeal but they were never approved by the State Government nor were they implemented at any point of time. We have also not been shown any administrative instructions issued by respondent No. 2 from time to time governing the service conditions and more particularly discipline of employees. It is common knowledge that in the absence of their own rules the Government Corporations have either adopted the provisions of the Maharashtra Civil Services (Discipline and Appeal) Rules or issued administrative orders governing the said arena. The respondent No. 4 has framed its own service rules. Either in the Maharashtra Civil Services Rules or in the absence of their own service rules formulated by the Government Corporations the administrative instructions issued by them do govern the conditions of service of a permanent employee or a probationer. The employment of a permanent employee could be brought to an end either on reaching the age of superannuation, by way of dismissal/removal on account of punishment or by way of compulsory retirement. In addition, the employee himself may resign or opt for voluntary retirement before reaching the age of superannuation. The concept of discharge simpliciter or termination order without mentioning any reason is not known to the service rules as applicable to the Permanent Government servants or to servants of the Government Corporations. The learned Counsel for respondent Nos. 2 and 3 has not brought any administrative order by which such powers of issuing order of discharge simpliciter or order of termination without assigning any reason, were circulated formulated or followed. If the petitioner was found to be quilt of some Acts of omission and commission it was open for the employer to proceed against him by conducting a departmental inquiry and Award appropriate punishment if he was found to be guilty. The respondent No. 2 issued two show cause notices against the petitioner, which he replied and denied the charges. The respondent No. 2 could have proceeded to appoint an Inquiry Officer so as to investigate the said charges and based on the Inquiry Officer’s findings the petitioner could have been punished. Nothing of this has been done by the respondent Nos. 2 and 3 and the impugned termination order was issued without assigning any reasons.

7. The affidavits in reply filed on behalf of respondents do make out a case that the petitioner was sought to be punished and that too without following the principles of natural justice. It was open for the employer to initiate a departmental inquiry and proceed against the petitioner on the basis of such inquiry findings. If there is no power of issuing an order of termination simpliciter and if such an order is de hors the service rules, the order cannot be sustained. The employee cannot be allowed to be punished under the garb of employer’s authority to dispense with the employment of the employee at any point of time. If the employee is on probation, or on temporary basis, an order of termination simpliciter may be justified in some cases but in respect of a permanent employee such order of termination simpliciter is alien to the service jurisprudence.

8. Vide our order dated 20th August, 2001 we had called upon the Principal Secretary in the department of co-operation and textile, Government of Maharashtra to examine whether such order of discharge simpliciter could have been issued and to take appropriate steps for deciding the liability of the employer viz. the respondent Nos. 2 and 3 or the respondent No. 4, as the case may be. When the petition was called out for final hearing the learned A.G.P. sought further time of one month at the instance of the Principal Secretary/Secretary. Once the impugned order of termination ceases to exist in the eyes of law it is for the respondents to take appropriate steps either for paying compensation/payment of salary and/or reinstatement in service or even to find out some amicable settlement between the parties. It is for the petitioner and the respondents to take appropriate steps in that regard.

9. For the reasons stated above, the petition succeeds and the order of termination dated 31st December, 1988 is hereby quashed and set aside. Rule made absolute in terms of prayer Clause (B) with no order as to costs. However, this order would not preclude the employer to proceed against the petitioner, de novo as per the Rules applicable.

10. Shri Chaudhari, learned Counsel for respondent No. 2 makes an oral application for stay of this order for a period of eight weeks so as to approach the Apex Court. Oral application is hereby rejected.

11. In view of final disposal of this petition, both the Civil Application Nos. 3947 of 1990 and 1948 of 2001 do not survive and the same stand disposed of.