2017 (7) TMI 75 - HC - VAT and Sales Tax

Termination of services of respondent - The appointment order clearly recited that in case the respondent fails to clear the departmental examination within a period of three years and within three chances, his services would be terminated without any prior notice - interpretation of statute - The respondent was appointed in the year 1997 and by the appointment order itself it was made clear that the respondent would be removed from services, if he does not pass the departmental examination in three attempts and within three years. As per the relevant Rules of the year 1972 an employee was entitled to an additional chance, i.e., a fourth chance only at the discretion of the concerned authority. The departmental examinations are liable to be conducted every year. Since the respondent was appointed in February, 1997, the respondent was liable to take an attempt at the examination scheduled in December 1997, 1998 and 1999 and was required to pass in the examination in at least three attempts. The examination for the year 1997, i.e., the first year, was conducted in June, 1998. Held that - It would be ridiculous to hold that an employee who had to join the training in December, 1998 could not have appeared at the examination held in June, 1998. If the examination was held more than six months before the respondent was sent for training, it is difficult to gauge as to how the respondent could not have appeared at the examination due to the training. In any case, such is not the stand of the respondent in the original application as in the original application the respondent has stated that he did not appear at the examination for the year 1997 as he had no notice about the said examination. Even assuming that the respondent was sent for training at the same time, which is not the case here, the petitioners cannot be blamed as the respondent had not applied for the examination at all though as per the detailed instructions of the Additional Sales Tax Commissioner issued on 9.12.1997 and 31.3.1998, the employees were duly informed about the consequences of their failure to appear at the examination. Despite the issuance of the two Circulars by the concerned authority, the respondent failed to appear at the examination and hence it was held that the respondent had lost the first chance. Since thereafter the respondent had taken up three chances and failed in the examination, it cannot be said that the petitioners had committed any error whatsoever in removing the respondent from the services. Petition allowed - decided in favor of Revenue.

Summary

Issues:
Challenge to order of termination based on failure to clear departmental examination within stipulated chances.

Analysis:
The petitioners challenged the order of the Maharashtra Administrative Tribunal that partly allowed the respondent's original application, setting aside the termination order. The respondent, appointed as a Sales Tax Inspector in 1997, failed to clear departmental examinations within stipulated chances. The appointment order specified termination if the examination was not cleared within three years and three attempts, with a provision for a fourth chance at the discretion of the Sales Tax Commissioner. Despite instructions for the 1997 examination, the respondent did not apply, leading to a lost chance. The respondent failed in attempts in 1998, 1999, and 2000, seeking and being granted an additional chance for 2001, which was also unsuccessful. The Tribunal held the respondent availed only three chances, contrary to the material. The High Court found the Tribunal erred in interpreting the rules and material. The respondent's failure to apply for the 1997 examination despite instructions constituted a lost chance, making it necessary to consider four attempts taken by the respondent. The High Court criticized the Tribunal's finding that the respondent missed the 1997 exam due to training in 1998, emphasizing the respondent's lack of application despite clear instructions. The High Court upheld the petitioners' decision to remove the respondent, as the respondent had exhausted all chances as per the rules.

The High Court criticized the Tribunal's failure to consider the material on record correctly, emphasizing the respondent's responsibility to apply for examinations as per instructions. The High Court found the respondent's excuse for missing the 1997 examination inadequate, given the wide publicity of instructions. The High Court rejected the Tribunal's finding that the respondent missed the 1997 exam due to training, highlighting the respondent's lack of application as the primary reason. The High Court concluded that the respondent had taken four attempts, including the lost chance in 1997, justifying the petitioners' decision to terminate the respondent. The High Court allowed the writ petition, quashing the Tribunal's order and dismissing the respondent's original application.