Mohan Dhotre v. State of Maharashtra & Ors.

3.15 In view of the fact that the charges against the Petitioner had been dropped in the enquiry report, as also since X had withdrawn the complaint and all other charges against the Petitioner were dropped, the Petitioner withdrew Writ Petition No. 7562 of 2003 which was filed in this Court. In the meantime, another PIL NO. 198 of 2009 came to be filed in this Court, once again raking up the issue of the sexual harassment of X, however after the Petitioner placed the correct facts on record, the said PIL was disposed off.

3.16 Despite the orders withdrawing the Petitioner’s suspension passed by Respondent No. 3- Board and also the dropping of charges of sexual harassment leveled against the Petitioner by X, the Petitioner was served with a copy of the impugned order dated 31st January 2012 passed by Respondent No. 2 i.e. Principal Secretary, Maharashtra State dismissing the Petitioner from the service of Respondent No. 3- Board pursuant to the complaint made by said X and the enquiry held pursuant thereto.

3.17 On 1st March 2013, the Petitioner made an application to the Chairman of Respondent No.3-Board and applied for voluntary retirement. The Petitioner’s application for voluntary retirement was accepted on 2nd May 2013 by Respondent No. 3- Board and the Petitioner was relived from the services of Respondent No. 3 - Board with effect from 31st May 2013.

3.18 Thereafter, the Petitioner sometime in the year 2016 filed a Notice of Motion No. 277 of 2016 in this court praying for his dues post retirement pending the hearing of the present petition. The said Notice of Motion was disposed of by order dated 26th April 2022 by this Court which reads as follows:- “P.C.:

1. By filing this notice of motion, the petitioner, a dismissed employee, seeks direction to the respondents to pay to him dues on account of leave encashment, gratuity and pension. Such notice of motion, according to Mr. Ghosalkar, learned advocate for the petitioner, has been taken out pursuant to the liberty granted by the Supreme Court by an order dated 5th July 2013 in Special Leave to Appeal (C) No. 16038 of 2013. He has relied on the decision of the Supreme Court in Union of India & Ors. v/s. C. G. Ajay Babu & Anr., reported in (2018) 9 SCC 529, in support of his contention that despite termination of service, the petitioner is entitled to gratuity.

2. It is not in dispute that the petitioner’s service has been terminated on the ground of moral turpitude in the course of his employment. Unless the Court holds the termination to be invalid, there can be no question of making any direction for payment of gratuity.

3. In so far as the other dues are concerned, they must also await final decision on the writ petition.

4. Accordingly, we reject the notice of motion.

5. However, since the writ petition is pending on the file of this Court for almost a decade, we propose to give the same precedence in hearing. List the writ petition for final hearing on 8th July 2022 (fairly high on board).”

4. It is on the above backdrop the issue which has fallen for consideration before the court in the present proceedings is whether Respondent No.1 had the jurisdiction to dismiss the Petitioner from the services of Respondent No. 3- Board and pass the impugned order dated 31st January 2012.

5. Mr. Dhakephalkar, learned Senior Counsel appearing on behalf of the Petitioner submitted that the impugned order has been passed by Respondent NO. 1 without having authority of law to do so, in as much as Respondent No. 1 is not the employer of the Petitioner and it is only Respondent No. 3- Board who is the employer of the Petitioner. He therefore submitted that in law only the employer would have the authority to dismiss the concerned employee from services and such authority cannot be exercised by anyone else other than the employer. He further submitted that even otherwise the entire basis on which the impugned order has been passed had fallen to the ground, in as much as the complainant, X herself admitted to have filed a false and fabricated complaint on instigation of other co-employees.

6. Affidavit on behalf of Respondent No. 1 i.e. State dated 28th February 2011 of Mr. B. S. Wankhede, Deputy Secretary, Department of Industry, Energy and Labour, opposing the reliefs as prayed for in the said Petition. The following contents of this affidavit required to be noted:-

7. Affidavit in reply on behalf of Respondent No. 3- Board dated 9th April 2012 has been filed by Shri. Ravindra Gavit, Chairman of the Respondent No. 3- Board. In the aforesaid affidavit, Respondent No. 3- Board has categorically submitted that the Petitioner was an employee of the Board and Respondent No. 1 had no role to play, except giving its approval at the time of appointment of the Petitioner. In the said affidavit, it has also been stated that save and except the approval of the name of the Welfare Commissioner by the Respondent No. 1, all the other decisions regarding appointment of Welfare Commissioner, service terms and conditions of the Welfare Commissioner and payment of salary are undertaken by the Board i.e. Respondent No. 3- Board. Reliance is also placed on the provision of Section 4(6)(d) of the Act which empowers the Board to decide service terms and conditions of the welfare commissioner. The said provision reads as under:-

8. It was also submitted that since the Petitioner’s salary is debitable to the funds of Respondent No.3-Board, it is clear that the Petitioner was an employee of the board and on a conjoint reading of the provisions of the Act and the Rules, Respondent No. 3-Board is empowered to take all decisions in respect of the service of the Petitioner,including the termination and/or dismissal from the services of Respondent No.3-Board. Therefore the decision of Respondent No.1 to dismiss the Petitioner from the services of Respondent No.3-Board by the impugned order is without the authority of law. In the said affidavit, it has also been submitted that the dismissal of service of Petitioner was primarily based on an enquiry held against the Petitioner on the basis of alleged sexual harassment case initiated on a complaint made by X in the year 2002. This complaint has been found without substance in the enquiry report and also the said X has withdrawn all her charges and the criminal cases filed against the Petitioner. Analysis

9. We have heard the parties, we have also perused the records and relevant provisions of law applicable to the facts of the case. We accordingly proceed to decide the basic issue which has fallen for consideration in the present proceedings i.e., whether Respondent No.1 had jurisdiction to dismiss the Petitioner from the services of Respondent No.3-Board under the provisions of Section 15 of the Act. To decide the issue, it will be beneficial to reproduce the provisions of Section 15 of the Act, which reads as under:-

10. On a plain reading of the aforesaid section, it is clear that section 15 empowers the State to remove any person who is found unsuitable for being appointed in service of the Board, in peculiar circumstances, if the State finds that any person employed is “unsuitable” then the State has the power to remove such person exercising powers under Section 15 of the Act. This power is coupled with a power as conferred in the second part of Section 15 to appoint such person in respect of whom more than 1/3rd of the members have not agreed. The power to appoint/employ any person on the Board is exclusively the right of the Board under the said Act as conferred under Section 15. Thus, “and” in section 15 needs to be read in conjunction for the reason that the first part of section 15 when empowers the State Government to remove any person whom it may deem unsuitable from the service of the Board simultaneous to it clothe’s the State Government to “make an appointment” of a person in respect of whom more than 1/3 of the members of the Board have not agreed. The corollary thereto is therefore, in the fact of the present case, the Petitioner is an employee of Respondent No.3-Board, as his appointment has been made by Respondent No.3- Board and not by Respondent no.1. Further the power to appoint Welfare Commissioner is vested in Respondent No.3-Board. The provision of Section 11 of the Act reproduced below makes the same clear:-

11. The power to find a candidate unsuitable cannot be equated akin to a power of termination. Section 15 is not a provision which would override the provisions of Section 11 of the Act which confers an exclusive power with the Board to appoint its employees. It is a settled principle of law that a power to appoint includes a power to terminate/dismiss. (See: Section 16 of the General Clauses Act). This is also apparent that from the fact that Section 15 does not begin with non obstante clause overriding the provisions of Section 11 which is an exclusive power of the Board to appoint its employees. Thus, to attribute a meaning to Section 15 that it confers powers to terminate the employees of the Board would be reading something in Section 15 not explicitly provided for. In fact, it would amount to doing violence to the plain reading and purport of the provision. 11.[1] On examining as to what would be the true intention, meaning and implication as brought about by Section 15, it primarily confers power on the State Government to “remove” any person whom it may deem “unsuitable” from the service of the Board and to make an appointment in respect of whom more than one-third of the members of the Board have not agreed. When the provision uses the word “unsuitable”, the first consideration would be as to what is the purport and meaning of such connotation. Meaning of the word ‘suitable’ is required to be seen from different dictionaries: Black’s Law Dictionary[1] – ‘suitable’: fit and appropriate for their intended purpose - ‘suitable’: right or appropriate for a particular person, purpose, or situation Merriam-Webster.com Dictionary– ‘suitable’: (c) Able, Qualified: a suitable candidate for the job. 11.[2] We may usefully refer to the decision of the Supreme Court in Parvez Qadir v. Union of India[3] wherein the Supreme Court held that the word ‘suitable’ does not require a definition because any man of experience would know who is suitable. It was held that however, each case has to be viewed in the context in which the word ‘suitability’ or ‘suitable’ is used, the object of the enactment and the purpose sought to be achieved. It was also held that the word ‘suitability’ itself is correlated with the object of retirement, viz., that a person has to be considered suitable for appointment to a superior service which itself furnished the norm that he is considered suitable having regard to his service. If this be the connotation of the word ‘suitable’, we are afraid to read any removal on unsuitability as termination on disciplinary proceedings. It is thus clear that the word ‘unsuitable’ cannot in any manner be read to be termination. It is thus clear that a candidate is unsuitable is certainly not mean that he is found to be unsuitable in the context of termination of disciplinary enquiry. If the legislature intended to confer such power of termination, clearly such purport of termination could have been included in plain terms in the said provision[4]. The provision would be required to be read as it stands and without adding or altering any of the words which are likely to change the purport, meaning and/or the object sought to be achieved under the said

4 Expressio unius est exclusio alterius provision. In another decision of Valsala Kumari Devi M. Vs. Director, Higher Secondary Education and Others[5] the expression “suitability” has held to mean that a person to be appointed shall be legally eligible and “eligible” should be taken to mean “fit to be chosen”.

12. We are also of the view that in the impugned order there are no findings regarding the unsuitability of the Petitioner warranting his removal from the services. The power to find a candidate unsuitable is not the power of termination. In fact the impugned order has been passed only on the complaint of the said X and on the basis of the aforesaid complaint, the services of the Petitioner have been terminated. The relevant findings of the impugned order are reproduced herein below:- (English translation)

13. These findings clearly show that only moral turpitude has been made the basis against the Petitioner to dismiss him from his services. This, to our mind, is not a correct approach adopted by Respondent No. 1 in passing the impugned order in as much as section 15 does not envisage that moral turpitude can be a ground to dismiss any employee from his/her services. The impugned order further fails to consider the crucial facts that the complainant X had herself, on 3 instances withdrawn the allegations against the Petitioner. In fact by an affidavit dated 17th January 2004 filed before the Principal Secretary, the said X categorically submitted that she was depressed as she was not selected for promotion to the post of Fund Inspector which was a higher post, and therefore presuming that the Petitioner was responsible for her non promotion, she filed a complaint against the Petitioner on the said misunderstanding. In the said affidavit, she also stated that she has realized her mistake and she has withdrawn all allegations against the Petitioner.

14. Further an order dated 10th January 2004 has also been passed by the Additional CMM Bhoiwada acquitting the Petitioner in Criminal case No. 61/P/03 filed by X against the Petitioner. It is also seen from the evidence note (Exhibit-O, Page 102 to 104 to the Petition), that in the evidence given by X before the enquiry officer, she has categorically submitted that on the instigation of some other coemployees, she filed the complaint against the Petitioner. The relevant notes to evidence are reproduced below: (English translation) “Question: Why did you make these complaints? Answer: At first, it is necessary to state brief facts of this matter. Two years before this incident, our written examination and oral interview had been conducted in the office, for promotion. I had heard that I stood first in the written examination. I was also confident about this because I have performed well in both the written and oral examination. At or around the same time, Shri. Dhotre called me and asked me as to how much salary would increase, if I get promotion. He told me that I have scored good marks. However, I don't know what happened thereafter. Because, my name was not there in the list of the employees who were promoted. Among the people who were promoted, promotion was given to Shri. B.V. Shinde against whom there were allegations of misappropriation of money and on seeing this I was surprised as to how the promotion was given to the said person. It was said that there were give and take transaction of money for promotion. Shri. Jagdish Naik said that Shri Dhotre was responsible for my name left out. I felt very bad about the said thing, however I did not say anything for two years. Thereafter, in or around October 2002, I learnt that the post was going to be filled up again by way of promotion. I felt that I should try again to see that injustice should not be done to me and therefore, I filed complaint to the Hon'ble Deputy Chief Minister regarding the promotion issue. Thereafter, Shri. Dhotre asked me as to why I filed complaint with the Hon'ble Deputy Chief Minister. Even, the Chairman of the Board asked me for the explanation in that regard. The Chairman of the Board told me that all these promotions were given by his order and Shri. Dhotre was not involved in the said matter. Thereafter, on the date 21" November, 2002, when I was working on the computer as usual, Shri. Dhotre came and asked me as to why I was sitting there. I would always sit on this Computer and I would sit on this computer with the permission of Shri. Ingle, Assistant Welfare Commissioner. As the said Computer was operating fast, I was working on the same. Thereafter, in my presence, Shri. Dhotre told Shri. Chaudhari that the computer in his own antechamber was operating fast and that he should made me to sit there. This made me feel insulted and it was inappropriate to talk about a woman like this. At that time, I became very upset and immediately I came out of the office and went to my husband. Similarly, at that time, I tried to meet Mr. Jagdish Naik of the Employees' Union, but since he was not in the office, I submitted a leave application and left the office. I contacted Mr. Jagdish Naik over the phone and went to meet him at Elphinstone Station. After having discussion with Mr. Jagdish Naik, I was taken to Matunga Police Station. Shri. Haldankar, Shri. Jagdish Naik, Shri. Kale, the Office-bearers of the Union told me that earlier also Mr. Dhotre had harassed the women in this manner at the offices at Nagpur and Aurangabad and therefore, those women will also get justice on the basis of my complaint. I had become very disappointed with the promotion issue and similarly, Shri. Dhotre had not liked that I had made complaint in that regard to the Hon'ble Deputy Chief Minister. Further, I filed a complaint as suggested by the Office-bearers of the Union regarding the inappropriate comments made about me i.e. making me seated in the antechamber on November 21". These people took me at various places and met the Officers and Office-bearers regarding my complaint at various levels. My father also was the President of the Union and as I was acquainted with all these people of Union since my childhood, I was like their daughter. Further, Shri Parandekar, the then Deputy Welfare Commissioner also came to my house twice and met me and he advised and guided me regarding filing complaints. With the advice of all of them, I filed complaint applications at various offices. I would like to mention again that the promotions in the Welfare Commissioner's Office become the center points of this matter. These promotions were made in a completely wrong manner and the wrong people were promoted. The Government approval is necessary while giving these promotions. It is unlawful that these promotions have been granted without even obtaining such approval. Question: Why did not you use your conscience while affixing signature to the complaint? Answer: I thought that there are many women, who might have suffered harassment at the hands of Shri. Dhotre but, they could not come forward, so I am taking the initiative and doing a good job. However, now I feel that the Union has made use of me. Question: Why did you trust the Office-bearers of the Union and filed complaint on hearsay information? Answer: All these Office-bearers were friends of my father and since my childhood, I was acquainted with them. They are my well-wishers and they are like my father and therefore, I trusted them. Similarly, though the information about other women is an heresay information, the words about making me to sit in the antechamber were actually uttered for me, were very upsetting to me and definitely defamatory to the woman. Why did you withdraw your complaint later on? Answer: On the basis of my complaint, Shri. Dhotre was suspended and the matter was even reached to the Court and I was not aware that all this would happen. Even after that, I did not get promotion. The Office-bearers of the Union persuaded me by saying that it would not be proper to promote me while this matter was pending. After Mr. Dhotre's suspension, the Office-bearers of Union stopped talking to me and I was left with no support. I learnt that the Union had collected contributions of Rs. 1,000/- to Rs. 1,500/- from about thousand employees to fight my case. However, later on, I was told that that my case was personal and that I had to fight the same at my own expenses. After the complaint, Dhotre Saheb transferred me from that office. Further, an enquiry was again made into the half pay maternity leave, which was approved a year ago, without any reason. I was very bothered by all these things. Everyone keeps talking to me about this same topic and I am tired of the same. Thereafter, Shri. Parandekar again transferred me to the Central Office. In this manner, I started feeling for myself that I have become a toy. Even today, my health is not good due to this mental stress and I am taking medication. Later on, I also learnt that due to this matter, people are spreading malicious gossips about me and that as result thereof, my reputation whatever that has been lowered is intolerable. For all these reasons, I have withdrawn my complaint.”

15. It is thus seen that the impugned order has failed to consider the crucial fact that the complainant X had withdrawn the allegation against the Petitioner and this itself was the basis on which the impugned order was passed. As that very basis / allegation itself did not survive against the Petitioner, the very foundation on which the impugned order was passed stood extinguished.

16. The impugned order also deserves to be set aside on the ground that the same has been passed without jurisdiction, in as much as Respondent no.1 was not the employer of the Petitioner and it was Respondent no. 3-Board, who was the employer of the Petitioner. The appointment of the Petitioner under section 11 of the Act has been made by Respondent No. 3- Board and the only role that Respondent No. 1 had to play in the appointment of the Petitioner was to give previous approval for the said appointment. This approval was made by Respondent No.1 way back in the year 1999. Once the approval has been given by Respondent No.1, the role of Respondent No. 1 ends and the State has no powers to decide on the employment conditions of the Petitioner. In fact the salary of the Petitioner as submitted by Respondent No. 3- Board is paid from the funds of Respondent No. 3- Board and is directly debitable from those funds. Further, the mandate of section 15 is very clear as to when Respondent No. 1 can exercise such powers as discussed hereinabove. In the facts of the present case, the Chairman of the Respondent No.3-Board conducted an enquiry on the allegations made by X and informed the same to Respondent No. 1 on 26th December 2002. Therefore there was no failure on the part of the Board to act on the complaint of X conferring any powers on Respondent No.1 to remove/dismiss the Petitioner from service.

17. We are therefore of the view that the impugned order has been passed wholly in the absence of any jurisdiction or authority of Respondent No.1 in matters which are in the exclusive domain of Respondent No. 3- Board. Respondent No. 3- Board is an autonomous body with a perpetual succession, common seal and power to acquire movable and immovable property. It is an independent body constituted under Section 4 of the Act. The State Government has mere general supervisory power and control over the Board and cannot exercise powers otherwise than what has been provided under the Act. In the present case powers under Section 15 of the Act could not have been exercised. Therefore considering the statutory provisions, it is clear that Respondent No. 3- Board is a fully independent body having its own set of rules and regulations to ensure the smooth functioning and conditions of service of its employees. The impugned order has further failed to discuss or record any finding on the ‘suitability’ of the Petitioner, as held aforesaid. The Petitioner was appointed only once he fulfilled all the criteria set out for the post of the Welfare Commissioner. The impugned order nowhere casts a doubt on the suitability of the Petitioner for the post of the Welfare Commissioner, thereby not taking into consideration the most important ingredient i.e. ‘suitability’, as required to trigger the provisions of Section 15 of the Act.

18. In the context of the State exceeding its jurisdiction the following decision of the Supreme Court is reproduced in the case of Municipal Board Kannauj Versus State of Uttar Pradesh & Ors.[6] in the context of UP Municipalities Act, 1916 held that sub section (1-B) does not clothe the State Government with a power to set aside or cancel an order of dismissal under the cover of purporting (to prohibit the execution or further execution). The Resolution of the board or the order of a duly authorized order of the board is not liable to be cancelled or set aside under this section. All that could be done under it is to prohibit the execution or further execution of the resolution or order, or the doing or continuance by any person of any act in pursuance of or under cover of such resolution/order. Whether the resolution/order does not require any acts to be performed or steps to be taken in the execution or further execution of the resolution or order of the board or of its officer, there is nothing to prohibit. If the object of the provision was to cloth the State Government with power to cancel or set aside the resolution of the board/order, it would have simply said so without resorting to the circumlocution “prohibit execution or further execution of the resolution/order”. Sub section (1-B) of Section 34 referred to does not apply to any resolution/order which exhausts itself after it is passed or made even if the sub section is read with sub section 4 of section 34.” Taking the aforesaid view the Supreme Court allowed the appeal and quashed and set aside the order of the State Government dated 12th May 1965.

19. In our view therefore, the impugned order miserably fails not only in taking into consideration the crucial facts of the case but also has been passed without jurisdiction and hence liable to be quashed and set aside. As a result of the above discussion, the Petition is allowed in terms of the following order:- ORDER

(i) We quash and set aside impugned order dated 31st January 2012 passed by

(ii) Rule made absolute in terms of prayer clauses (a) and (b).

(iii) Parties to act on the authenticated copy of the order.

(iv) As we have allowed the Petition, if there are consequential benefits which become entitled to the Petitioner, it is open to the Petitioner to make a representation to that effect to the Board. The Board shall consider the same and take appropriate view of the matter in accordance with law. Let such representation be made within four weeks from today which be decided after hearing the Petitioner within four weeks thereafter. If any payment is due, the same be realized within further four weeks of such decision. (AARTI SATHE, J.) (G. S. KULKARNI, J.)