-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.6337 OF 1997 NO.6337 OF 1997 NO.6337 OF 1997 Ajit Pandurang Tikar ...Petitioner v/s The Inspector General of Police, Maharashtra State, Pune and ors. ...Respondents Mr V.P. Patil i/b Mr Vijay patil for Petitioner. Ms S.S. Bhende, AGP for Respondent Nos.1 to 3. CORAM : D.K. DESHMUKH AND R.Y. GANOO JJ. DATE : 16TH JUNE 2008. -2- P.C. :- 1. It was pointed out that this petition was dismissed for default on 7th November 2006, but perusal of the order dated 20th November 2006 shows that the petition was actually restored though the order does not specifically say so. 2. The facts that are material and relevant for deciding this petition are as under. The petitioner was selected for the post of Jailor, Group II. In June 1986 he completed training and thereafter was posted as Jailor, Group II at Thane Central Prison from 1st June 1987. He was transferred from Thane Central Prison to Nagpur Central Prison on 29th August 1988. By order dated 20th September 1988 the petitioner’s services were terminated. That order was issued by the respondent No.1 - Inspector General of Police (Prison). The order states that as the Government does not need the services of the petitioner no longer, with immediate effect his services are terminated. The petitioner, feeling aggrieved by that order, filed an appeal / representation before the State Government making grievance against the termination of his services by the respondent No.1. The appeal / representation of the petitioner was decided by the State Government by order -3- dated 7th June 1990. In that order, the Government has stated that the Government, after perusing the appeal submitted by the petitioner and the enquiry report submitted by the respondent No.1, found that during the probation period, the work of the petitioner was not satisfactory and that his conduct was corrupt and timid and therefore, he was found unfit for the post and therefore, the respondent No.1 imposed the punishment of removal on him. Therefore, the Government confirmed the punishment of removal imposed on the petitioner. Against both these orders, one terminating the services of the petitioner by order dated 20th September 1988 and the other of the State government confirming the same dated 7th June 1990, the petitioner filed original application No.511 of 1991 before the Maharashtra Administrative Tribunal. The ground of challenge obviously was that assuming that the petitioner was on probation as the services of the petitioner have been terminated for mis-conduct, it amounts to imposing penalty on the petitioner and therefore, this could not have been done without holding departmental enquiry. In short, the case of the petitioner before the M.A.T. was that the order terminating the services of the petitioner is violative of Article 311 of the Constitution. The petitioner in his application contended that it is clear from the order of the State Government that the order terminating his services is -4- not simpliciter order of termination but is an order imposing punishment. On behalf of the State Government, an affidavit in reply was filed. In that reply, in paragraph 2, it was stated that warning was issued to the petitioner while he was on duty, his conduct was suspicious and illegal. It was stated that on taking review of the service record of the petitioner, it was found that the performance of the petitioner is not satisfactory. In so far as the order of the State Government in appeal is concerned, in paragraph 7, it was stated that the Government correctly observed that the services of the petitioner were terminated because of unsatisfactory record and as the behaviour of the petitioner was corrupt and coward. The M.A.T., as observed above, decided the application by order dated 26th March 1997. The M.A.T. found that the petitioner was a probationer and that his services were terminated for unsatisfactory performance during the probationary period and therefore, there is nothing illegal in the order terminating the services of the petitioner. So far as the order of the State Government is concerned, the M.A.T. observed that it does not correctly observe the decision taken in the matter and therefore the M.A.T. directed the Government to issue correctly worded order in place of the order dated 7th June 1990. It is this order which is challenged in the petition. -5- 3. The learned counsel appearing for petitioner submits that the services of the petitioner assuming to be probationary were terminated not because of unsatisfactory performance but because of alleged misconduct. He invited our attention to the order of the State Government where in terms the Government has stated that the punishment of removal is imposed on him and Government confirms that punishment. The leaned counsel submits that Article 311 of the Constitution of India is applicable even to civil servant who is on probation and therefore for misconduct the services of the probationer cannot be terminated without holding departmental enquiry and without giving him an opportunity of being heard in relation to the misconduct alleged. He further submits that it was not the case of the State Government in reply that the order passed by the State Government was a mistake, which the Government wanted to correct. According to the petitioner, in the absence of any case being made out by the State Government, the M.A.T. could not have observed that the observations in the above order are mistaken and therefore, the Government should correct it. The learned counsel appearing for respondents, on the other hand, submits that looking to the record of the services of the petitioner during the probationary period, it cannot be said that he has successfully completed the probationary period and therefore the Government was -6- justified in terminating the services of the petitioner for unsatisfactory work during the probationary period. 4. Now if in the light of these rival submission, the record of the case is perused, the order by which the services of the petitioner were terminated dated 20th September 1988 shows that it is a simpliciter termination order. It does not by itself cast any stigma against the petitioner. The petitioner filed appeal against that order before the State Government and his grievance in the appeal was his services have ben terminated as a measure of punishment without holding any departmental enquiry against him. The order of the State Government passed in appeal shows that the Government accepted that the services of the petitioner were terminated as a punishment for his misconduct. Thus, as a result of the order of the State Government, between the petitioner and the State Government it was common ground that the services of the petitioner were terminated not on the ground that he has not satisfactorily completed the probation period but as a measure of punishment. This was the case of the petitioner in the original application. The State Government filed affidavit in reply before the M.A.T. The only stand taken by the State Government in relation to the order of the State Government in appeal is to be found in paragraph 7 which reads as under :- -7- "7. With reference to the contentions of paragraph 8 of the petition, I say that the petitioner preferred an appeal to the Government against the said order of termination. I say that the Home Department vide its Memorandum No.JLD-1588/56/276-PRS-1 dated 7.6.1990 rejected the appeal on the ground that the performance of the petitioner during probation period was not found satisfactory and behaviour of the petitioner was corrupt and coward. Therefore, the petitioner was unfit to hold the post of Jailor Group II." . Thus, the stand of the State Government also before the M.A.T. was that the services of the petitioner were terminated because his performance during the probation period was not satisfactory and also behaviour of the petitioner was corrupt and coward. Now, the words ’corrupt and coward’ definitely cast a stigma and if this was the foundation of the order terminating the services of the petitioner, then even assuming that the petitioner was a probationer, the order terminating the services of the petitioner could not have been issued without holding departmental enquiry and without giving the petitioner an opportunity -8- to meet the allegations that he is corrupt and coward. Thus, the order terminating the services of the petitioner not only violates Article 311 of the Constitution but is also in violation of principles of natural justice because a stigma has been cast against the petitioner that he is corrupt and coward, without he ever being given an opportunity to meet the allegations. Perusal of the order of the M.A.T. in so far as this aspect of the matter is concerned, shows that the M.A.T. holds that the order of the State Government is wrongly worded. In our opinion, this finding that the order of the State Government is wrongly worded or that the State Government called the order terminating the services of the petitioner as an order imposing punishment, as a mistake could have been appreciated by the M.A.T. only if it was the stand taken by the State Government in its affidavit. The M.A.T. on its own could never have come to such a conclusion. A finding that the order of the State Government passed in appeal is a mistake which needs to be corrected could have been recorded by the M.A.T. only if the State Government had taken that stand. In our opinion, the observations made by the M.A.T. in relation to the order passed in appeal by the State Government are wholly unwarranted and could not have been made by the judicial forum in such a casual manner. In our opinion, the observation of the State Government in appeal leads to the conclusion that the -9- services of the petitioner were terminated as a measure of punishment unless the State Government, for good reasons, comes out with a defence that the order passed in appeal was a mistake and explain how the mistake was committed. Taking overall view of the matter therefore, in our opinion, the order passed by the M.A.T. cannot be allowed to stand and as we find that the services of the petitioner were terminated as a measure of punishment, the order terminating the services of the petitioner will have to be set aside. The consequence of the order terminating services of the petitioner would be that he will stand reinstated in services. Normally as a consequence of reinstatement, the petitioner would be entitled to back wages. However, before us there is no material to show whether the petitioner during the intervening period was gainfully employed or not. In our opinion, therefore, following order would meet the ends of justice. 4. The order dated 20th September 1988 terminating the services of the petitioner, the order passed by the State Government dated 7th June 10 confirming that order and the order passed by the M.A.T. dated 26th March 1997 are set aside. The petitioner is reinstated in service. So far as the question of back wages is concerned, within a period of four weeks from today, the petitioner shall file an affidavit before the -10- respondent No.1 claiming back wages, also disclosing whether he was gainfully employed during the intervening period or not. On receiving the affidavit, the respondent No.1 shall hold enquiry in accordance with law and shall make an order about the quantum of back wages to which the petitioner is entitled within a period of eight weeks. The petitioner shall be paid his back wages as per the aforesaid order by the respondent No.1 within four weeks from the date of that order. If the decision is adverse to the interest of the petitioner, the petitioner shall be free to adopt appropriate remedy. It is clarified that as the petitioner was on probation when his services were terminated, on reinstatement he shall be on probation. The Government will be at liberty to hold departmental enquiry if so advised. Rule is made absolute accordingly with no order as to costs. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( R.Y. GANOO J.)