1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 5603 OF 2009 (Smt. Naseem Ahmad wd/o Sayed Irshad Ahmad vs. The Management of Manganese Ore (I) Ltd.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. APRIL 12, 2010. Heard finally Shri Jamal, learned counsel for the petitioner and Shri Modak, learned counsel for the respondent. The challenge is to award of C.G.I.T., dated 01.04.2009 rejecting reference of the petitioner. The petitioner was appointed on compassionate basis on the post of Clerk in place of her husband. The first order of appointment is dated 02.11.1992 and she joined at the place of posting i.e. Beldongri Mine in November 1992. She worked there up to 9.11.1993. During her period of about one year, she is absent for 26 days. Then her probation was extended by six months and she was transferred to Chikla Mine on 10.11.1993. She joined at the transferred place and worked there for three days and thereafter remained absent. On 07.05.1994 in her absence, her probation was extended again by a period of three months i.e. from 10.05.1994 to 09.08.1994 and ultimately she was terminated by order dated 04.11.1994 by observing that she has failed to carry out 2 reasonable instructions of the management and she was not interested in the service of the company. The defence of the petitioner was that she was suffering from jaundice and Hepatitis and for that she was taking treatment from Government Ayurvedic Hospital at Nagpur. It appears that her employer (respondent) called upon her to appear before Chief Medical Officer at Nagpur for medical check up but she did not appear and ultimately her services were terminated. The learned counsel for the petitioner argues that the termination is stigmatic and only because the petitioner could not appear before Chief Medical Officer, she was terminated. He relies upon the judgment of the Hon'ble Apex Court in the case of V.P. Ahuja vs. State of Punjab, reported at (2000) 3 SCC 239 to support his contention that such termination is unwarranted. Shri Modak, learned counsel for the respondent, on the other hand, points out that enough time was given to the respondent to report for duty and as she was not interested in working at Chikla mine and was requesting for her transfer to Nagpur, she has not reported for duties thereafter. He points out that even the reason for absence has not been substantiated and the petitioner avoided to appear before the Chief (Medical Services) of the respondent for verification. The management took lenient view and extended probation period further up to 10.08.1994. Last 3 extension is vide order dated 09.08.1994 and for a period of three months from 10.08.1994. According to him, the reasons put forth for termination i.e. failure to carry out reasonable instructions do not constitute any stigma. He invites attention to terms and conditions of appointment order dated 02.11.1992 to show that in view of Clause 11 therein, the employer has got every right to terminate the services of such employee. The appointment of the petitioner on compassionate ground is not in dispute. The fact that she was probationer is also not in dispute. Thus, her performance while on duty is not the reason for her termination. On the contrary, the employer thought that she may improve and, therefore, extensions were granted. After November 1993, she is absent till the date of her termination. Thus, there is no performance during this period at all. The absence of a probationer for just and sufficient reason cannot be a ground for termination of services. The perusal of order dated 04.11.1994 clearly shows that because she could not appear before the Chief (Medical Services), the employer has found that she has failed to carry out reasonable instructions and because of her failure to report to that Medical Officer, an inference that she is not interested in service has also been drawn. This is obviously without any opportunity to her. The petitioner has informed her employer that she has been taking treatment from Government 4 Ayurvedic Hospital. The employer has not come up with a case that the said claim was verified by it and is found to be incorrect or false. The petitioner also states that as she was bed ridden, she could not appear before the Chief (Medical Services). Again this claim is not verified by the employer. Report of other employee that petitioner refused to receive some communications can not be accepted as true, behind her back. Similarly, records show that employer attempted to verify genuineness of medical certificates from Civil Surgeon but then did not complete that process. In this situation, considering the position emerging from the records, I find that the order of termination dated 04.11.1994 is unsustainable. However, the records also show that thereafter i.e. in the year 1999, the petitioner has been enrolled as an Advocate with Bar Council of Maharashtra. In this situation, I am inclined to permit the respondent – employer to hold proper enquiry into the absence of the petitioner from November 1993 onwards till the date of her termination. The said enquiry shall be completed in accordance with law by the employer by 31st August 2010. If in the enquiry, the employer finds that the petitioner – employee has deliberately kept away from her services, as she was not interested in joining at any place out of Nagpur, the employer may pass further appropriate orders in the matter. If the employer finds that there are just and reasonable 5 grounds for her absence during the said period, the employer shall issue appropriate orders for her posting. The termination order dated 04.08.1994 is set aside. Award of C.G.I.T. dated 01.04.2009 holding that no inquiry was essential is also quashed and set aside as C.G.I.T. has not co-related the issue and impact of absence in the matter. The fact that because of inquiries made by management, Civil Surgeon stopped issuing certificates and hence the petitioner started giving certificates of Ayurvedic Hospital of Government, also needs to be established and inquiry into it was essential. C.G.I.T. has acted as if it is inquiry officer in the matter. It is made clear that as the petitioner – employee has enrolled herself as an Advocate of this Court, the prayer for back wages cannot be granted. Writ Petition is thus partly allowed. However, in the facts and circumstances of the case, there shall be no order as to costs. JUDGE *GS.