Bombay High Court
Umesh Anirudha Mahajan vs State Of Mah & 2 Others on 20 March, 2020
Author: Vinay Joshi
Bench: A.S.Chandurkar, Vinay Joshi
Judgment 1 228wp5740.06.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5740/2006
Umesh S/o Anirudha Mahajan,
Aged about 43 years,
R/o. Hanuman Nagar, Nagpur.
.... PETITIONER
// VERSUS //
1. State of Maharashtra,
through its Secretary,
Urban Development Department,
Mantralaya, Mumbai 400 032.
2. Director of Town Planning,
Maharashtra State, Pune.
3. Deputy Director of Town Planning,
Nagpur Region, Old Secretariat Building,
Commissioner Office, Civil Line,
Nagpur.
.... RESPONDENTS
___________________________________________________________________
Shri Anjan De, Advocate for petitioner.
Ms. T.H. Khan, Assistant Government Pleader for respondents.
CORAM: A.S.CHANDURKAR AND VINAY JOSHI, JJ.
CLOSED FOR JUDGMENT :- 11.02.2020
JUDGMENT PRONOUNCED ON:- 20.03.2020
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Judgment 2 228wp5740.06.odt
JUDGMENT (PER VINAY JOSHI, J.)
Heard learned counsel appearing for the parties.
2. The challenge in this petition is to the order dated 05.05.2006 passed in Original Application No. 177/1995 by Maharashtra Administrative Tribunal, Nagpur, whereby the petitioner's removal from services was maintained.
3. The petitioner was appointed on 18.06.1990 as Planning Assistant purely on temporary basis for six months and was posted in the office of the Assistant Director of Town Planning (Valuation), Aurangabad. Before expiry of six months period, the petitioner filed Writ Petition No. 3634/1990 in this Court at Aurangabad Bench seeking his continuation on the post of Planning Assistant. In the said writ petition, this Court has granted interim relief directing the Authorities to continue the petitioner's services on said post till the candidate selected by the Selection Board is appointed against the said post. Thereafter, the petitioner had been transferred to Nagpur on the same post and while serving, on 08.12.1994, he was caught in trap led by State Anti-Corruption Bureau allegedly accepting bribe amount of Rs. 2,000/- It was followed by petitioner's termination by respondent No. 3 Deputy Director of Town Planning, Nagpur Region vide order dated 20.12.1994. Being aggrieved, the petitioner preferred Original Application No. 177/1995 before the Maharashtra ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 12:07:44 ::: Judgment 3 228wp5740.06.odt Administrative Tribunal. It was petitioner's contention that he was removed without holding any departmental inquiry. Moreover, his termination/removal amounts to stigma and therefore it is violative of Article 311(2) of the Constitution of India read with explanation to the Rule 5 (viii)
(b) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979.
4. After hearing both sides, the Tribunal held that mere reference of registration of the offence against petitioner cannot be called as stigmatic order and accordingly original application was dismissed which is impugned herein. So far as factual aspect is concerned, there is no much dispute between the parties about the petitioner's temporary appointment on the post of Planning Assistant, his continuation on the post by virtue of interim order passed by this Court and subsequent removal by respondent No. 3 on 20.12.1994. There is no dispute that trap was led by Anti-Corruption Bureau against the petitioner for accepting the bribe and accordingly crime was registered. Moreover, it is not in dispute that no departmental inquiry nor any show cause notice was issued to the petitioner before taking impugned action of termination dated 20.12.1994.
5. On said factual score, only short issue is involved as to whether the impugned order is stigmatic one, if so, the termination without holding inquiry would obviously vitiate since it amounts to penalty. Sub-clause (viii)
(b) of explanation Rule 5 of the said Rules contemplates that if termination ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 12:07:44 ::: Judgment 4 228wp5740.06.odt of Government Servant is on the ground unconnected with his conduct then it shall not amount to a penalty within the meaning of the Rule 5 of the said Rules. Therefore, the crux of the matter is to assess whether impugned action of respondent No. 3 can be termed as penalty. Though petitioner's learned counsel argued that a petitioner who was Class-II Government employee cannot be removed otherwise than by the Government, however no material is placed to satisfy that petitioner was Class-II Government employee.
6. The learned counsel for petitioner would submit that by virtue of interim order passed in Writ Petition No. 3634/1990, petitioner's services were continued on the post. On 07.12.1994, petitioner was caught in the Anti-Corruption trap and this was the cause for respondent No. 3 to terminate the services of petitioner. Therefore according to him, the action of termination is purely of punitive nature since it was based on the crime registered against the petitioner. Mere reference of criminal case would not change the nature of order as penalty. It is submitted that the order is not punitive as the reference of criminal case is merely the motive and not the foundation for impugned action. In support of said contention, learned Assistant Government Pleader relied on the decisions of Supreme Court in cases of Wainganga Bhauuddeshiya Vikas Sanstha through President B. B. Karanjekar and others Vs. Ku. Jaya & ors., (Civil Appeal No. 6226/2019 arising out of SLP (Civil) No. 4314 / 2018) decided on 09.08.2019, ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 12:07:44 ::: Judgment 5 228wp5740.06.odt Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. of Medical Sciences and another, AIR 2002 SCC 23 and State of U. P. and others Vs. Ram Bachan Tripathi, AIR 2005 SCC 3212. In these cases, it is ruled that mere description of background fact cannot be called as stigma. It is submitted that the services of petitioner were purely on temporary basis and therefore, the authority has right to terminate the same without holding inquiry. Certainly, the Authority has such right if it is a simple termination without giving any flavour of punitive action.
7. We have gone through the impugned order of termination dated 20.12.1994. The first part of the order speaks about the history regarding petitioner's temporary appointment for the period of six months and its continuation at the instance of interim order passed by this Court in Writ Petition No. 3634/1990. The second part which is relevant for our purpose states that the sleuth of Anti-Corruption Bureau on 07.12.1994 caught petitioner while accepting bribe and offence vide Crime No. 205/1994 was registered at Ambazari Police Station, Nagpur against petitioner in terms of Sections 7, 13(d) and 13(1)(3) and 13(2) of the Prevention of Corruption Act. Particularly, it is mentioned that since the offence was registered against the petitioner, considering petitioner's temporary appointment, he was immediately removed from services. We find it relevant to reproduce the second part of the impugned order since the ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 12:07:44 ::: Judgment 6 228wp5740.06.odt controversy revolves around the same. The said portion is reproduced in vernacular as below:-
" Jh- m- v- egktu] j-l- ;kauk vWUVh djI"ku C;qjks] ukxiwj ;kauh fn- 7&12&94 jksth ykp fLodkjrkauk idMY;kus vkf.k ;k lanHkkZr iksyhl LVs"ku vack>jh ukxiwj "kgj ;sFks R;kapsfo:/n vi-dz-a 205@94 dye 7] 13] (1) (3) lg 13] (2) ykpyqpir izfrca/kd dk;|kUo;s xqUgk uksanfo.;kr vkysyk vlY;kus ifj- 1 e/;s ueqn ckc y{kkr ?ksrk Jh- m-v- egktu] ;kaph fu;qDrh rnFkZ Lo:ikph vlqu iq.kZr% rkRiqjR;k Lo:ikph vlY;kus R;kauk jpuk lgk;d inkdfjrk "kklu lsosr oS| fLFkrh (Locus standi) izkIr gksoq "kdr ukgh- ;kLro Jh- mes"k vfu:/n egktu] jpuk lgk;d ;kauk "kklu lsosrqu rkRdkG Eg.kts vkns"k fuxZfer >kY;kP;k rkj[ksiklqu ¼ek- uarj½ dk<qu Vkd.;kr ;sr vkgs-"
8. In the light of said position, learned counsel for petitioner submitted that the impugned order clearly reflects that the registration of crime was very much cause for removal and therefore it is punitive in nature. He would submit that the Court must have meaningful reading of the impugned action so as to understand the true import behind the action. In this regard, he relied on the decision of Supreme Court in cases of Babu Lal Vs. State of Haryana, 1991 (2) SCC 335 and Anoop Jaiswal Vs. Government of India, 1984 AIR (SC) 636 . In these case, it is ruled that where the form of the order is merely a camouflage for an order of dismissal for misconduct, it is always open to the Court to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely determination of employment is in reality a cloak for an order of ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 12:07:44 ::: Judgment 7 228wp5740.06.odt punishment, the Court would not be debarred merely because of the form of the order.
9. Therefore, the order may be innocuous on the face of it still for the ends of justice, the Court can lift the veil and find out the real nature of the order. The employer which has option to hold inquiry has chosen not to hold inquiry but simply terminated petitioner vide impugned order. Admittedly, no show cause notice was served on the petitioner nor opportunity was given to him to be heard. Article 311 of the Constitution of India does not make a distinction between Civil Servants who are permanently employed and who are temporarily employed. The expression "no person" in Clause (1) of Article 311 includes all civil servants whether they have been appointed temporarily or on permanent basis. In that context, if the order is found to be of punitive nature, sans departmental inquiry, the order of termination has to be held illegal.
10. The impugned order is not that the petitioner's services were unsatisfactory which could be the reason for his termination. However, there is specific mention that since the offence under the Prevention of Corruption Act, was registered against the petitioner and as his service was on temporary basis, he was terminated with immediate effect. Therefore, it is apparent that registration of offence is not mere causal reference or a motive ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 12:07:44 ::: Judgment 8 228wp5740.06.odt but the same is very much foundation for impugned action of termination. By no stretch of imagination, it cannot be said that the order bears casual reference of registration of crime which has no nexus with termination. Pertinent to note that trap was led on 07.12.1994 whilst within couple of days i.e. on 20.12.1994, the impugned action of termination was taken. The close proximity of the events also assist to reaffirm our view that the registration of crime has occasioned employer to remove petitioner. Reading of impugned order differently would cause miscarriage of justice. In general parlance a stigma is understood to be something i.e. detraction from the character or reputation of a person. The reference of registration of crime under Prevention of Corruption Act is very much connected with the conduct of Government Servant and it amounts to blame and would harm reputation of employee. As noted above, the impugned order in no uncertain terms specifies that since the offence was registered against the petitioner, he was terminated being temporary employee. Therefore, we are of the firm view that action taken by the respondent No. 3 was in substance punitive and amounts to stigma and therefore, termination is illegal. The learned counsel for petitioner brought to our notice that the petitioner faced criminal prosecution and ultimately in Special Criminal Case No. 9/1995, he was acquitted vide judgment and order dated 30.12.2006.
11. We came across a piquant situation for which both sides can be blamed rather petitioner more. We may recall that this Court vide order ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 12:07:44 ::: Judgment 9 228wp5740.06.odt dated 21.12.1990 in Writ Petition No. 3634/1990 has granted interim protection to the services of petitioner. Later on, by virtue of establishment of Maharashtra Administrative Tribunal, writ petition was transferred vide Transfer Application No. 2912/1991 to Maharashtra Administrative Tribunal. The record indicates that on 14.01.2002, the matter was finally heard under assumption that the petitioner was in service in terms of interim order and accordingly it was disposed by expressing that the petitioner does not have any right to hold the post but he cannot be displaced by junior or fresh ad- hoc appointee. Surprising to note that long back on 20.12.1994, the petitioner was terminated, but it was not brought to the notice of the Tribunal by either side.
12. At this juncture, one more petitioner's contention bears relevance that all the temporary appointments of Planning Assistant were regularized vide Government Resolution dated 08.03.1999. However, it was also not brought to the notice of the Maharashtra Administrative Tribunal. Had it been brought to the notice of Maharashtra Administrative Tribunal about petitioner's termination, it would have considered the legality of termination order. If on facts the Maharashtra Administrative Tribunal was convinced about the illegality of termination then the order of reinstatement could have been passed in the year 2002 itself. Obviously, more fault lies with the petitioner since he kept silence about his termination and allowed to proceed the matter as if he was in service.
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Judgment 10 228wp5740.06.odt
13. Be that as it may, the State Government vide Resolution dated 31.03.1999 has regularized the post of Town Planner. In pursuant of that all the Town Planners appointed on temporary basis were regularized vide office order dated 19.06.1999. In above part of the judgment, we hold that the Maharashtra Administrative Tribunal has erred in holding that the impugned order does not attract any stigma but is a simple termination. Since it is purely punitive action, naturally it requires to be set aside. We are facing one more difficulty while parting with the judgment. The petitioner was 43 years of age in the year 2006 when this writ petition was filed. As on today, petitioner has completed 58 years of age and therefore, order of reinstatement cannot be passed. The fact discloses that the petitioner was appointed in the year 1990 whilst after 4 years, he was terminated. The action of termination is illegal. The petitioner might have got regularization as a policy matter if he had fulfilled the other criteria and probably would have regularized. Due to passage of time, we cannot issue the order of regularization. However, as the impugned action was totally illegal, we can only compensate petitioner to some extent as remedial major. Therefore, we deem it appropriate to direct respondents to pay reasonable compensation to the petitioner to his grievance to some possible extent.
14. In view of above, writ petition stands allowed. The impugned order dated 05.05.2006 passed in Original Application No. 177/1995 is quashed and set aside. The petitioner's termination dated 20.12.1994 is held ::: Uploaded on - 20/03/2020 ::: Downloaded on - 21/03/2020 12:07:44 ::: Judgment 11 228wp5740.06.odt to be illegal. The respondent/State is directed to pay compensation to the tune of Rs. 2,50,000/- to petitioner within the period of eight weeks from the date of this order. Needless to say that as the petitioner has not served with respondents, he is not entitled for any other ancillary benefits on account of setting aside his illegal termination. Having regard to the peculiar facts, no order as to costs.
JUDGE JUDGE
.
Gohane
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