WP Nos.105840 of 2015 - judgmenthck.kar.nic.injudgmenthck.kar.nic.in/judgmentsdsp/bitstream/... ·...
Transcript of WP Nos.105840 of 2015 - judgmenthck.kar.nic.injudgmenthck.kar.nic.in/judgmentsdsp/bitstream/... ·...
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IN THE HIGH COURT OF KARNATAKADHARWAD BENCH
Dated this the 25th day of January 2016
Before
THE HON’BLE MR.JUSTICE B.S.PATIL
Writ Petition No.105840/2015 C/w W.P. No.105836,105841, 105842 & 105843 of 2015 (S-DIS)
In W.P. No.105840/2015
Between
Khajbabu Sheik,Son of Sri Amarpasha,Aged about 34 years,Junior Officer (Mines),Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118. …Petitioner
(By Sri K.Sreedhar Associates & Sri H.M.Dharigond,Advocates)
A n d
1. National Mining DevelopmentCorporation Ltd.,Represented by its AssistantGeneral Manager (Personnel),Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118.
2. Joint General Manager (Personnel),National Mineral DevelopmentCorporation,Donimalai Iron Ore Mines,
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Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118. ...Respondents
(By Sri K.Raghavacharyulu for Sri Vijay M.Malali, Advocate)
This writ petition is filed under Articles 226 & 227 ofthe Constitution of India, praying to quash the impugnedtermination order dated 15.06.2015 passed by 2nd
respondent vide Annexure-E as the same is illegal, arbitraryand unsustainable and direct the respondents to continuethe services of the petitioner as Junior Officer (Mines) in therespondent establishment.
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In W.P. No.105836/2015
Between
Sri. P.Thanesh Kumar,S/o N.Prakasam,Aged about 28 years,W/as Junior Officer (Mining),Donimalai Iron Ore MineNMDC Ltd., Donimalai,Sandur Taluk, Ballari-583118. …Petitioner
(By Sri S.C.Bhuti & Sri P.Nanja Reddy, Advocates)
A n d
1. National Mineral DevelopmentCorporation Ltd., (Government ofIndia Enterprise) Represented by itsJoint General Manager (Per),Donimalai Iron Ore Mine,Donimalai Township, Sandur Taluk,Ballari District-583118.
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2. Assistant General Manager (Per)National Mineral DevelopmentCorporation Ltd., (Government ofIndia Enterprise),Donimalai Iron Ore Mine,Donimalai Township, Sandur Taluk,Ballari District-583118. ...Respondents
(By Sri K.Raghavacharyulu for Sri Vijay M.Malali, Advocate)
This writ petition is filed under Articles 226 & 227 ofthe Constitution of India, praying to quash the impugnedtermination order dated 15.06.2015 passed by respondent-1(Annexure-E) as the same is illegal, arbitrary, in violation ofprinciples of natural justice and without the authority of lawand direct the respondents to grant all the consequentbenefits including the monetary benefits consequent uponquashing the order at Annexure-E.
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In W.P. No.105841/2015
Between
Venkata Sudarshan,Son of late T.C.Venkata Subbanna,Aged about 40 years,Junior Officer (Mines),Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118. …Petitioner
(By Sri K.Sreedhar Associates & Sri H.M.Dharigond,Advocates)
A n d
1. National Mining DevelopmentCorporation Ltd.,Represented by its Assistant
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General Manager (Personnel),Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118.
2. Joint General Manager (Personnel),National Mineral DevelopmentCorporation Ltd.,Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118. ...Respondents
(By Sri K.Raghavacharyulu for Sri Vijay M.Malali, Advocate)
This writ petition is filed under Articles 226 & 227 ofthe Constitution of India, praying to quash the impugnedtermination order dated 15.06.2015 passed by 2nd
respondent vide Annexure-E as the same is illegal, arbitraryand unsustainable and direct the respondents to continuethe services of the petitioner as Junior Officer (Mines) in therespondent establishment.
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In W.P. No.105842/2015
Between
Avijit Roy, Son of Sri Hari Pada Roy,Aged about 32 years,Junior Officer (Mines),Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118. …Petitioner
(By Sri K.Sreedhar Associates & Sri H.M.Dharigond,Advocates)
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A n d
1. National Mining DevelopmentCorporation Ltd.,Represented by its AssistantGeneral Manager (Personnel),Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118.
2. Joint General Manager (Personnel),National Mineral DevelopmentCorporation,Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118. ...Respondents
(By Sri K.Raghavacharyulu for Sri Vijay M.Malali, Advocate)
This writ petition is filed under Articles 226 & 227 ofthe Constitution of India, praying to quash the impugnedtermination order dated 15.06.2015 passed by 2nd
respondent vide Annexure-E as the same is illegal, arbitraryand unsustainable and direct the respondents to continuethe services of the petitioner as Junior Officer (Mines) in therespondent establishment.
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In W.P. No.105843/2015
Between
Anadi Mahapatra,Son of late Lalmohan Mahapatra,Aged about 34 years,Junior Officer (Mines),
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Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118. …Petitioner
(By Sri K.Sreedhar Associates & Sri H.M.Dharigond,Advocates)
A n d
1. National Mining DevelopmentCorporation Ltd.,Represented by its AssistantGeneral Manager (Personnel),Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118.
2. Joint General Manager (Personnel),National Mineral DevelopmentCorporation,Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118. ...Respondents
(By Sri K.Raghavacharyulu for Sri Vijay M.Malali, Advocate)
This writ petition is filed under Articles 226 & 227 ofthe Constitution of India, praying to quash the impugnedtermination order dated 15.06.2015 passed by 2nd
respondent vide Annexure-E as the same is illegal, arbitraryand unsustainable and direct the respondents to continuethe services of the petitioner as Junior Officer (Mines) in therespondent establishment.
These writ petitions coming on for Orders this day theCourt made the following:-
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ORDER
In all these writ petitions, common question arises for
consideration. Facts leading to these writ petitions are also
common. The respondents have taken a common stand by
filing statement of objections. Hence, all these cases are
clubbed, heard together and are disposed of by this common
order.
2. By a notification dated 04.12.2012 produced at
Annexure-A applications were invited for the post of Junior
Officer (Mining). Requisite qualification and experience, as
stated in the notification, being that he must be a holder of
degree in Mining Engineering from a recognized University
with minimum of one year experience or three years Diploma
in Mining Engineering from a recognized institute with five
years experience in the relevant field, with Foreman
Certificate of Competency. Pursuant to the notification, all
the petitioners applied to the post of Junior Officer in
Mining. A written test was conducted. After the petitioners
were qualified in the written test held on 23.06.2013, they
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were called upon to attend the interview. Thereafter, having
regard to their performance in the written test and interview,
by separate communications issued, they were appointed
subject to being medically found fit.
3. Petitioners were on probation for a period of one
year from the date of appointment. Annexure-D appointment
order dated 05.09.2013 makes it clear that during the period
of probation their services could be terminated by giving one
month’s notice in writing or by paying one month’s salary in
lieu of notice without assigning any reason.
4. On 15.06.2015, by an order produced at Annexure-
E in the case of Sri Khajababu Sheik – petitioner in W.P.
No.105480/2015, (similar orders are produced by other
petitioners), petitioner was informed that on verification of
documents submitted it was found that petitioner failed to
submit original year-wise marks-sheets and original
experience certificates for different periods. Inviting the
attention of the petitioner to clause 11 of the offer of
appointment, it was alleged that he was required to produce
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original experience certificate and original year-wise marks-
sheet which, according to the respondent-National Mineral
Development Corporation Limited (‘NMDC’ for short),
petitioner had failed to submit. It was further alleged that he
had committed misconduct as per Rule 5(4) of the NMDC
Employees’ (Conduct, Discipline and Appeal) Rules, 1978 (for
short the ‘NMDC Conduct Rules’) for furnishing false
information regarding qualification, previous service
germane to the employment in terms of clause 14 of the offer
of appointment letter dated 30.09.2013; the Appointing
Authority had, therefore decided to terminate the
appointment of the petitioner with immediate effect. Thus,
petitioners were informed that their services were terminated
with immediate effect in terms of Clause 8 of offer of
appointment letter dated 30.09.2013 and a sum equivalent
to one month’s salary, in lieu of notice period, had been
credited to their account. It is this order of termination that
is challenged by each one of the petitioners in this batch of
writ petitions.
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5. Petitioners have filed rejoinder along with additional
documents. Respondents have filed statement of objections
enclosing several documents. The relevant rules of NMDC
are made available by the learned counsel appearing for the
respondents-Corporation Sri K.Raghavacharyulu.
6. Main contention urged by the learned counsel for
petitioners is that without providing an opportunity of
hearing and on the basis of allegations of misconduct, which
are factually incorrect, respondent-Corporation terminated
services of petitioners after a lapse of nearly 1 year 8 months’
of their entry into service. They have contended that they
had not suppressed any fact pertaining to their qualification
or experience and had indeed made available original
certificates for perusal of the authorities and only thereafter
they had been appointed being satisfied about the requisite
qualification possessed and experience undergone by them.
7. Learned counsel appearing for the respondents has
vehemently contended that order terminating the services of
petitioners has been issued strictly in accordance with the
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terms of the order of appointment. He urges that as per
contractual terms of appointment, having found that
petitioners had not produced original certificates and had
not possessed requisite experience, order of termination was
passed. It is his submission that order of termination is a
termination simplicitor and not stigmatic or punitive,
therefore, there was no requirement of holding any
departmental enquiry.
8. Learned counsel for both sides relied on several
judgments, which will be referred to in the course of this
order. Particular attention of the Court has been drawn by
the learned counsel for the respondents to the judgment in
H.F.Sangati Vs. Registrar General, High Court of Karnataka
and Others (2001)3 SCC 117 (paragraphs 8, 10 and 11) and
the judgment in the case of Bishan Lal Gupta Vs. The State of
Haryana and Others (1978)1 SCC 202, to support the
contention that impugned order amounts to discharge
simplicitor and has been passed in accordance with the rules
framed and the terms of the appointment order.
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9. In the light of the above contentions, the only point
that arises for consideration is:
Whether the impugned orders tantamount
to discharge simplicitor of probationers or
termination for alleged misconduct resulting in
punitive and stigmatic order requiring a detailed
enquiry before such termination?
10. It is not in dispute that all the petitioners were on
probation. The order of appointment produced at Annexure-
D makes it clear that petitioners were on probation for a
period of one year from the date of appointment which could
be extended or curtailed at the discretion of the
management. During the period of probation, services of the
petitioners could be terminated by giving one month’s notice
in writing or by paying one month’s salary in lieu of notice.
11. An argument, based on Clause 8 of the
appointment order, has been advanced by the learned
counsel for respondents that management had reserved
absolute right to terminate the appointment at its discretion
after giving three months’ notice or on payment of three
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month’s salary in lieu of notice. It is also urged, by referring
to clause 11 of the order of appointment, that the candidate
was required to produce original certificates such as
certificates possessing educational and other technical
qualification and experience certificate etc., and as per
clause 14, if any declaration given or information furnished
by the candidate was proved to be false or if the candidate
was found to have willfully suppressed any material
information, he would be liable to be removed from service
and for such other action, as the company might deem fit
and/or necessary. By referring to these clauses i.e., clause 8
and 14, respondent-Corporation has passed this order of
termination which is sought to be justified by the learned
counsel for the respondents stating that order passed is
strictly in accordance with the terms of appointment and
hence cannot be interfered with.
12. At the outset, it has to be stated that careful
perusal of the order of termination produced at Annexure-C
discloses that allegations were made against the petitioners
of not producing original experience certificate and/or
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original year-wise marks-sheet. This omission on the part of
the petitioners has been characterised as misconduct under
Rule 5(4) of the NMDC Conduct Rules because they had
furnished false information regarding qualification and
previous service at the time of employment and therefore,
under clause 14 of offer of appointment, Appointing
Authority claimed that it had decided to terminate their
appointment with immediate effect. Clause 14, as already
adverted above, makes it clear that in case any declaration
given or information furnished by the candidate is ‘proved’ to
be false or if the candidate is ‘found’ to have willfully
suppressed any material information, he would be liable to
be removed from service and for such other action as the
company may deem fit.
13. It cannot be said that action under Clause 14 of
the order of appointment could be taken without holding any
enquiry or without providing any opportunity of being heard
to the petitioner. The requirement to be satisfied for
removing an employee by resorting to clause 14 of the
appointment order is that declaration given or information
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furnished by the candidate has to be ‘proved’ to be false or
must be ‘found’ to have been willfully suppressed. In order to
prove that any declaration or information furnished was false
or in order to find that any information was willfully
suppressed, person against whom the order is proposed to
be passed has to be provided an opportunity of being heard.
The words ‘proved’ or ‘found’ used in clause 14 amply
demonstrate that employer must hold that declaration given
or information furnished was proved to be false. The
employer cannot hold so unless he records a finding after
giving an opportunity to the employee. Therefore, even if
impugned action has been taken by the employer in terms of
clause 14 for not furnishing required documents or for
suppressing certain material information, employer cannot
dispense with opportunity of being heard to the petitioner
14. Clause 8, which has been invoked in the
penultimate paragraph of the order of termination, has no
application to the case on hand because the action taken is
not as per clause 8 but it is indeed as per clause 14.
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15. Be that as it may, well-established principle
governing discharge of a probationer due to his unsuitability
is that whatever be the motive behind such order of
discharge if the foundation for passing the order of discharge
is not anchored in the misconduct alleged against the
probationer, the same cannot be characterised as punitive
requiring an enquiry. If the foundation for the order of
termination is the allegation of misconduct leveled against
the employee, then even if the order of termination is
couched in an innocuous language, it will certainly have a
stigmatic effect on the character of the employee and will
affect his future prospects. Hence, such order of termination
cannot be passed without affording an opportunity of being
heard and without conducting an enquiry. Indeed, a long
line of judgments on this aspect rendered by the Apex Court
have consistently declared this position of law. Useful
reference can be made to the judgments in the cases of
H.F.Sangati Vs. Registrar General, High Court of Karnataka
and Others (2001)3 SCC 117, Parshotam Lal Dhingra Vs.
Union of India 1958 SCR 828 and Registrar, High Court of
Gujarat and Another Vs. C.G.Sharma (2005)1 SCC 132.
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Observations made in paragraphs 43 and 45 of the judgment
in the case of Registrar, High Court of Gujarat (supra), on
which both sides have placed reliance can be usefully
extracted hereunder:
“ 43. But the facts and circumstances in the
case on hand is entirely different and the
administrative side of the High Court and the Full
court were right in taking the decision to terminate
the services of the respondent, rightly so, on the
basis of the records placed before them. We are also
satisfied, after perusing the Confidential Reports and
other relevant Vigilance files etc. that the respondent
is not entitled to continue as a Judicial officer. The
order of termination is termination simplicitor and
not punitive in nature and, therefore, no opportunity
needs to be given to the respondent herein. Since the
overall performance of the respondent was found to
be unsatisfactory by the High Court during the
period of probation, it was decided by the High Court
that the services of the respondent during the period
of probation of the respondent be terminated
because of his unsuitability for the post. In this view
of the matter, order of termination simplicitor cannot
be said to be violative of Arts. 14, 16 and 311 of the
Constitution of India. The law on the point is
crystalised that the probationer remains probationer
unless he has been confirmed on the basis of the
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work evaluation. Under the relevant Rules under
which the respondent was appointed as a Civil
Judge, there is no provision for automatic or deemed
confirmation and/or deemed appointment on regular
establishment or post, and in that view of the matter,
the contentions of the respondent that the
respondent's services were deemed to have been
continued on the expiry of the probation period, are
misconceived.”
“ 45. This Court in the case of H.F. Sangati vs.
Registrar General, High Court of Karnataka held as
under: (SCC p.121, para 8)
"It is well settled by a series of decisions ofthis court including the Constitution Benchdecision in Parshotam Lal Dhingra vs. Unionof India 1958 SCR 828 and seven JudgeBench decision in Samsher Singh vs State ofPunjab 1974 (2) SCC 831 that services of anappointee to a permanent post on probationcan be terminated or dispensed with during orat the end of the period of probation becausethe appointee does not acquire any right tohold to continue to hold such a post duringthe period of probation. In Samsher Singhcase, it was observed that the period ofprobation is intended to assess the work of theprobationer whether it is satisfactory andwhether the appointee is suitable for the post;the competent authority may come to theconclusion that the probationer is unsuitablefor the job and hence must be discharged onaccount of inadequacy for the job or for anytemperamental or other similar grounds notinvolving moral turpitude. No punishment isinvolved in such a situation. Recently, in DiptiParkash Banerjee vs. Satyendra Nath Bose
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National Centre for Basic Sciences havingreviewed the entire available case law on theissue, this Court has held that termination ofa probationer's services, if motivated bycertain allegations tantamounting tomisconduct but not forming foundation of asimple order of termination cannot be termedpunitive and hence, would be valid. In SatyaNarayan Athya vs. High Court of M.P., 1996(1) SCC 560, the petitioner appointed onprobation as a Civil Judge and not confirmedwas discharged from service in view of the nonsatisfactory nature of his service. This Courtheld that the High Court was justified indischarging the petitioner from service duringthe period of probation and it was notnecessary that there should have been acharge and an inquiry on his conduct sincethe petitioner was only on probation and itwas open to the High Court to considerwhether he was suitable for confirmation orshould be discharged from service.”
16. The stand of the respondents is that a CBI enquiry
was held into the allegation of fraud played at the level of
some Officers of the Corporation in the matter of recruitment
and that a charge-sheet has been filed based on the report
submitted by the CBI. Therefore, it clearly emerges from the
discussion made above that specific allegation of grave
misconduct of not furnishing the required certificates
showing their qualification/experience and active
suppression of the same has been the foundation for
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terminating the services of petitioner by resorting to clause
14 of the appointment order. As per Rule 5(4) of the NMDC
Conduct Rules referred to supra, furnishing false
information regarding qualifications, previous certificates
etc. has been termed as ‘misconduct’. For such misconduct,
penalties that could be imposed has been stated in Rule 23
which include minor and major penalty. It is true,
explanation to Rule 23 which pertains to penalties, in clause
(vi)(a) states that termination of service of an employee
appointed on probation during or at the end of the period of
probation, in accordance with the terms of his appointment
shall not amount to a penalty within the meaning of the
Rule. But, as held above, this is not a termination simplictor
of a probationer by finding him unsuitable or for any other
reason which does not cast stigma on his character. This is a
case of termination based on the satisfaction of the employer
that it was found and proved that petitioners had
suppressed certain materials and had not produced the
required documents while obtaining employment. Therefore,
this cannot be a case of discharge simplictor. Hence, as held
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by the Apex Court in the judgments referred above, such
action cannot be taken without holding an enquiry.
Impugned orders, therefore, deserve to be set aside and are
accordingly set aside.
Writ petitions are allowed. Petitioners are directed to
be reinstated into service with backwages and other
consequential benefits. Liberty is reserved to respondent-
Corporation to conduct necessary enquiry and take
appropriate action in accordance with law.
Sd/-JUDGE
Kms