wp nos.105840 of 2015 - judgmenthck.kar.nic.injudgmenthck.kar.nic.in/judgmentsdsp/bitstream/... ·...

: 1 :

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,

: 2 :

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.

- - - - - - - - -

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.

: 3 :

2. Assistant General Manager (Per)National Mineral DevelopmentCorporation Ltd., (Government ofIndia Enterprise),Donimalai Iron Ore Mine,Donimalai Township, Sandur Taluk,Ballari District-583118. ...Respondents


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.

- - - - - - - - -

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


A n d

1. National Mining DevelopmentCorporation Ltd.,Represented by its Assistant

: 4 :

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




- - - - - - - - - -

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


: 5 :

A n d


2. Joint General Manager (Personnel),National Mineral DevelopmentCorporation,Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118. ...Respondents




- - - - - - - -

In W.P. No.105843/2015

Between

Anadi Mahapatra,Son of late Lalmohan Mahapatra,Aged about 34 years,Junior Officer (Mines),

: 6 :

Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118. …Petitioner


A n d


2. Joint General Manager (Personnel),National Mineral DevelopmentCorporation,Donimalai Iron Ore Mines,Donimalai Township,Sandur Taluk, Ballari District,Karnataka-583118. ...Respondents




These writ petitions coming on for Orders this day theCourt made the following:-

: 7 :

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

: 8 :

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

: 9 :

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.

: 10 :

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

: 11 :

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.

: 12 :

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

: 13 :

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

: 14 :

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

: 15 :

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.

: 16 :

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.

: 17 :

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

: 18 :

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

: 19 :

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

: 20 :

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

: 21 :

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

wp nos.105840 of 2015 - judgmenthck.kar.nic.injudgmenthck.kar.nic.in/judgmentsdsp/bitstream/... ·...

Documents