STATE OF MAHARASHTRA Vs. DIPAK PANDURANG SAWARKAR

JUDGEMENT

(1.) State Government, Commissioner-Amravati Division and Collector, Amravati have on 18-11-2010 filed this writ petition under Articles 226 and 227 of the Constitution of India assailing the order dated 6-1-2010 passed by the MAT i.e. Maharashtra Administrative Tribunal, Nagpur Bench in Original Application 1121 of 1994 setting aside the termination order dated 6-3-1987 and ordering reinstatement of present respondent as junior clerk with 25% back wages till the date of reinstatement. MAT has given petitioners liberty to initiate departmental enquiry against him and to take decision about the continuity of service of the respondent for period of absence from duty. This Court has admitted the matter for final hearing on 14-6-2011 and granted status quo. It appears that respondent employee had filed W.P. 16 of 2011 and it was allowed to be withdrawn on 12-1-2011, keeping his challenge to operative parts about decision on continuity and liberty to hold departmental inquiry open. He then filed Civil Application 2665 of 2011 for vacation of direction to maintain status quo pointing out the circumstances in which his counsel could not appear before this Court on 14-6-2011. We have heard respective Counsel finally at that stage with consent. Learned AGP Advs. Khubalkar has invited attention to express language in appointment order of respondent to demonstrate that respondent had no right to post and his appointment was purely temporary in nature. It could have been put to an end without assigning any reason and here, has been brought to an end by plain order without casting any stigma on him. Use of this power or its validity has not been considered by the MAT and thus there is failure to exercise the jurisdiction. He contends that motive as also foundation were irrelevant and that there was no need to hold departmental enquiry and application of mind in this regard by MAT is erroneous. He has relied upon number of judgments to show how such simple discharge of a probationer who has some semblance of right to post is dealt with by Hon. Apex Court and High Court. He submits that MAT has only looked into part of defense raised by petitioner to justify the termination and thus, there is non-application of mind.

(2.) Shri Harkare, learned Advocate for the respondent has supported the impugned order. He states that respondent was given that appointment as nominee of freedom fighter on 1-8-1981 and termination is on 6-3-1987 i.e. almost after 6 years. In this background, MAT has found it proper to find out real reason and noted that alleged absence from duty was reason therefor and hence, proceeded to grant relief to the respondent. He argues that alleged absence of right to post or then absence of any stigma in termination order are the points raised before this Court and not even pleaded before MAT. Municipal Corporation of the City of Jabalpur vs. State of M. P., 1966 AIR(SC) 837is relied upon by him to urge that such type of a new plea can not be entertained by this Court. As all relevant aspects are looked into by MAT and there is no jurisdictional error, the writ petition is liable to be dismissed.

(3.) Paragraph 10 in order of MAT shows the contention of State Government that appointment of respondent was purely temporary liable to be terminated at any time without any notice and without assigning any reason. MAT also notes the defense that respondent accepted service with said condition and hence, he could not have any grievance against the termination order. Next contention about order not amounting to penalty in view of Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 is then noted in para 11 and in para 12 MAT finds termination due to long absence and therefore not falling under that rule. These Rules are referred to as D and A Rules hereafter. MAT holds that Rule 5, clause (viii) (b) envisages termination of service of a temporary government servant on ground unconnected with his conduct and hence, irrelevant. It relies upon the return filed by State before it to note that respondent was alleged to be negligent as he remained absent between 1982 and 1987 without any intimation and holds that it was the actual reason for termination. It then concludes that termination for such absence was not legal without holding disciplinary proceedings. MAT, therefore, has granted relief as noted above. In the process, defense of State Government noted by it in paragraph 10 and its impact on issue raised before it, is totally lost site of and has not been considered.