Termination of a probationary employee must follow due process, including an enquiry if misconduct is alleged; failure to conduct such an enquiry renders the termination invalid.

JUDGMENT :

A.S. Chandurkar, J.

Rule. Rule made returnable forthwith. By consent of the parties, the petition is heard finally.

2. The challenge raised in this writ petition is to the judgment of the Maharashtra Administrative Tribunal in Original Application No.678 of 2023 dated 7th December 2023. By the said judgment, the Tribunal has set aside the order of termination dated 19th May 2023 issued to the respondent and has directed reinstatement in service along with back-wages.

3. Facts relevant for considering the aforesaid challenge are that the respondent came to be appointed on the post of Assistant Secretary (Technical) at the Maharashtra State Board for Technical Education - MSBTE on 7th January 2021 for a period of two years on probation. The appointment is governed by the Maharashtra Engineering Administrative Service (Recruitment) Rules, 2017 (for short, the Rules of 2017). According to the petitioners, during the period of probation, she was issued five memorandums as her services were not found satisfactory. On 7th December 2022, a proposal was moved by the MSBTE to discharge the respondent from services. The matter was considered by the petitioner no.2. On 19th May 2023, the Higher and Technical Education Department resolved to discontinue the services of the respondent by stating the same to be unsatisfactory. Accordingly, on the same day, the Secretary, MSBTE issued an order terminating the services of the respondent. This order was the subject matter of challenge before the Tribunal and by the impugned judgment, the same has been set aside holding it to be unsustainable in law.

4. Mr. L.M. Acharya, learned Special Counsel appearing for the petitioners submitted that considering the manner in which the respondent rendered her services during the period of probation, it was found that her work and conduct was unsatisfactory. An order of termination simplicitor came to be issued to her. Referring to the said order of termination dated 19th May 2023 issued by the Secretary, MSBTE, it was submitted that it could not be said to be stigmatic order. The Tribunal was not justified in interfering with the said order. The right to discontinue services during the period of probation vested with the petitioners and they had exercised that right. To substantiate his contentions in this regard, the learned counsel placed reliance on the decision in Wainganga Bahuuddeshiya Vikas Sanstha and Ors. v. Jaya and Ors. (2019) 20 SCC 288 and submitted that the decision taken while arriving at the conclusion that the services were unsatisfactory was the motive and not the foundation of the termination of service. He, therefore, submitted that the judgment passed by the Tribunal ought to be set aside and the order of termination be upheld.

5. On the other hand Mr. Nitin Gaware Patil, learned counsel for the respondent supported the order passed by the Tribunal. According to him, in the order of termination dated 19th May 2023, there was a reference to the Government Order of the same day. In that order, it was clearly stated that the respondent was found guilty of serious acts of misconduct and hence it was proposed to terminate her services. Perusal of that Government Order issued by the Department of Higher and Technical Education clearly revealed that the same was punitive in nature and that the services of the respondent had been done away with in absence of any enquiry. Considering the nature of statements made in the said Order, an enquiry ought to have been held against the respondent. The impugned order was stigmatic in nature considering the statements made therein. In that regard, the learned counsel placed reliance on the decisions in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors., (1999) 3 SCC 60; State of Punjab and Anr. v. Sukh Raj Bahadur, AIR 1968 SC 1089 and Anoop Jaiswal v. Government of India and Anr., (1984) 2 SCC 369. It was thus submitted that there was no case made out