Idmc Erstwhile Indian Dairy ... vs Mohini Pessuram Tilwani

1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== IDMC ERSTWHILE INDIAN DAIRY MACHINERY COMPANY LIMITED Versus MOHINI PESSURAM TILWANI ========================================================== Appearance:

MR KM PATEL, SENIOR ADVOCATE ASSISTED BY MR DG CHAUHAN(218) AND RONAK D CHAUHAN(7709) for the Appellant(s) No. 1,2,3,4 MR YATIN OZA, SENIOR ADVOCATE ASSISTED BY MR. MN MARFATIA(6930) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Page 1 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT Date : 24/07/2020 CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH)

1. Truth is the foundation of justice and that dispensation of justice, based on truth, is an essential feature in the justice delivery system. Truth is a mirage. It rests in the recesses of the human mind. What emerge are actions driven by the perplexities of emotion, judgment and perceptions. Examined on the touchstone of the justice, Courts evaluate facts as they emerge on record, proceeding to uphold or set aside these actions through judicial appraisal. It is not for Courts to unravel the complexities of the human mind. Suffice it to say that both the petitioner and the respondents have spoken half truths.

1.1 Parties to any litigation before a court should not harbour the misconception that since the statue of Lady Justice has blindfolded, the justice system turns a blind eye to acts like pre-variation, motivated falsehoods, collusion and the like. Using truth as a guiding star in the entire judicial process, is our mandate, obligation and bounden duty.

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2. The present case apparently is riddled with complexities. After unraveling the voluminous records produced by both the parties, we believe that we have been able to discern the truth. Both the parties have endeavoured to speak half truths. There appears to be concealment by both the sides. While embarking on this quest for truth we have derived a gainful insight into human behavior, mannerisms, motivations and many a subtle hues which go behind the decision making process.

3. In the context stated above, some brief facts and the disturbing questions relating to engagement of respondent in the appellant company and sudden dismissal after 4½ years of exemplary service from the appellant company are reproduced below. These facts are borne out from the record and are more or less admitted to the parties:-

[1] The respondent was working with National Dairy Development Board, of which the present appellant company is a wholly owned subsidiary.

[2] The appellant company in 2012-13 was not in a good shape, which required restructuring and a complete Page 3 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT overhaul in the management so as to bring it back on road. [3] The respondent was picked up by the appellant company from NDDB, which is the mother company, to join and serve the appellant company and get it restructured and reformed. Respondent's performance in NDDB was found upto the mark and that is why she was selected for the appellant company.

[4] In April, 2013 she was appointed in the appellant company as Senior General Manager with a starting annual package of Rs.26 lakhs for a period of 5 years. Her performance report in NDDB finds mention in the appointment letter.

[5] In September, 2015 she was given a fresh engagement by the appellant company as Chief People Officer with starting annual package of Rs.37,67,091/-. [6] This appointment was given after 2½ years of respondent working as Senior General Manager. Both the appointment letters are already quoted in this judgment wherein it is duly recorded about her experience, performance and output in NDDB and IDMC - the appellant.

Page 4 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT [7] The Annual Performance Report for the year 2014-15 is mentioned in the second appointment letter dated 03.09.2015 as `"Outstanding". In 2015-16 again it was "Outstanding" and in 2016-17, it was "Exceptional". [8] The last Annual Performance Report declaring it to be "Exceptional" is dated 17.08.2017.

[9] The respondent No.5 in the writ petition (appellant No.2) is said to have constituted a Committee on 11.11.2017 of two Senior Executives to look into the complaints against respondent.

[10] The Committee submitted its report on 21.11.2017 already reproduced in this judgment.

[11] The respondent No.5 to the writ petition (appellant No.2) impleaded by name as malafides are alleged against him was appointed as the Acting Managing Director in the month of April 2017 and later as Managing Director on 18.11.2017.

[12] Within 3 days thereon the Committee report was furnished on 21.11.2017 and within a week thereon saw the termination order being passed on 28.11.2017. Page 5 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT [13] Appellant No.2 called the respondent to his chamber at 10.30 a.m on 28.11.2017 to serve the termination order, which she avoided.

[14] Respondent came to the chamber of appellant No.2 at 4:30 p.m. She did not receive the termination order. An unpleasant scene was created. Respondent left the chamber.

[15] The termination order is sent at 6:13 p.m on 28.11.2017 by email.

[16] Respondent again visited the office in the late evening hours, this time accompanied by police officials. [17] Respondent's complaint regarding sexual harassment is registered at 00:10 hours on 29.11.2017 at the police station.

[18] On 29.11.2017 a complaint is lodged by the company against respondent for return of assets and documents. [19] In January/February 2018, the respondent sends complaints to National Commission For Women and to the Internal Complaints Committee alleging sexual harassment by appellant No.2.

Page 6 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT 3.1 In the background of the above facts, the following questions / doubts arise for which apparently there is no answer.

[a] Having worked for more than 4½ years since April, 2013 till November, 2017 with "Outstanding" and "Exceptional" performance what went wrong during the period after 17.08.2017 till the beginning of November, 2017. Within 2½ months her performance deteriorated to an extent resulting into termination.

[b] Two Member Committee constituted only in November, 2017 to look into the complaints. Why was this Committee not set up earlier to examine these complaints which were being received since long while? Despite these complaints why the assessment of performance as "Outstanding"and "Exceptional"?

[c] A bare perusal of the Committee's report dated 21.11.2017 reflects that it was not confined to any particular complaints or poor performance during the last 2½ months, but would be spread over to much longer period may be couple of years. If this was correct, then why Page 7 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT "Outstanding" and "Exceptional" performance reports. [d] Termination order could have been served by email or by a special messenger or speed post / courier. It does not stand to logic when the appellant company says that in order to serve the termination order the physical presence of the respondent was required by the Managing Director in his chamber. All the more when the Managing Director knew fully well that there could be some unpleasant or an untoward incident and apprehending such behaviour from the respondent, called another lady officer of the company in his chamber when the respondent came at 4:30 p.m. and he also made sure that the office peon was standing outside his chamber.

[e] As expected by the Managing Director, the respondent, according to him, misbehaved when she came at 4:30 p.m. and declined to receive the termination order which was subsequently sent by email at 6:13 p.m. The same email could have been sent in the morning itself rather than calling the respondent to his chamber and try to serve the termination order in person. This conduct shows that there was something to be settled or negotiated in person before actually giving effect to the termination Page 8 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT order.

[f] The appellant No.2 has functioned as the respondent's superior and would have contributed to the performance appraisal of the respondent.

[g] Throughout the period of 4½ years when the respondent worked with the appellant company there was never any complaint of sexual harassment by the respondent against appellant No.2, the Managing Director. Such allegations surfaced for the first time on 28.11.2017 and thereafter.

[h] The complaints to the police was made on 28.11.2017, to the National Commission for Women and Internal Complaints Committee were made in January - February, 2018, long after the passing of the termination order on 28.11.2017. Why was no complaint of sexual harassment ever lodged before any authority despite the assertion of the same since the respondent No.5 having been appointed as the Acting Managing Director. 3.2. The above facts, which trouble us, help us in actually gauging the truth. It is for this reason, we have recorded that Page 9 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT both the parties have not stated the complete truth before the Court. There is much more than what is stated. In the above backdrop of facts and circumstances we are convinced that the termination is not a simpliciter order even though worded as such. The same suffers from the vice of arbitrariness and malafide.

4. The facts and circumstances of this case and the pleading placed on record by both the parties do not spell out all the facts correctly. The link which has been tried to be established by the appellant company for termination does not appear to be complete nor do the allegations of sexual harassment made by the respondent inspire enough confidence to accept them. We would not hesitate to mention here that both the parties have not come out with the whole truth rather both have tried to conceal the true facts.

5. We now proceed to deal with the matter on merits. This appeal under Clause 15 of the Letters Patent has been filed by the employer erstwhile Indian Diary Machinery Company Ltd. (in short "IDMC Ltd.") assailing the correctness of the judgment Page 10 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT and order of the learned Single Judge dated 30.4.2019 passed in Special Civil Application No.10252 of 2018 titled as Mohini Pressuram Tilwani versus IDMC Ltd. and four others whereby the learned Single Judge allowed the writ petition and after quashing the orders dated 28.11.2017 and 14.02.2018 terminating the services of the respondent and dismissing the departmental appeal, the Court further directed to reinstate the writ petitioner on the same terms and conditions and status as were existing on the date of termination with all consequential monetary benefits.

6. The relevant facts relating to the present dispute are that the respondent was working with the National Dairy Development Board (in short "NDDB") from where she had resigned and was relieved so that she could take up assignment with the appellant company. The respondent was offered contractual appointment for 5 years as Senior General Manager vide communication dated 16.04.2013 on an annual package (CTC) of Rs.26 lakhs. The appointment letter reads as follows:

"IDMC/HPD Managing Director Sub:Appointment of Ms.Mohini Tilwani Page 11 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT As a part of streamlining of the IDMC's operations,it is felt that we may consider suitable person who can take the responsibility for the following functions through a group cluster called "HPD &Support Services" comprising:

1. Human Potential Development Group: This will includes major responsibility for implementation of SAP modules like ESS/MSS, Recruitment, Performance Management System, Travel Management, Training and Event Management in existing SAP HCM at IDMC.

2.Corporate Communications

3.Import & Export

4.Insurance

5.Coordination & Monitoring Cell (C&M)

6.Guest Relations In the above context, MD has received a letter dated 18th March 2013 from Ms. Mohini Tilwani, Head HRD, NDDB seeking an opportunity to work with IDMC. She has also obtained consent from Chairman and MD,NDDB. At present Ms. Mohini Tilwani is working as Head (HRD) with NDDB, Anand since November 2010 and leading all HR activities which includes recruitment, performance appraisals, policy formulation & reviews, contract labour management,etc. Prior to NDDB, she worked with Ashima Group as Corporate Head *HRD & IR) and DSS Mobile Communications Ltd., as Regional Head (HDR & Administration). She brings with her 21 years of experience in the areas of People Management,General Management, HRD & IR. She holds master degree in Labour Welfare, bachelor degree in Science and Legislative Law and post graduation diploma in HRD.

Therefore as discussed with MD & ED, we propose to appoint Ms. Mohini Tilwani as Senior General Manager (HPD & Support Services) with CTC of Rs. 26lakhs per annum." Page 12 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT 6.1. Later on vide communication dated 03.09.2015, the respondent was designated as Chief People Officer and was offered fresh contractual appointment for 5 years with the IDMC Ltd. with an annual package (CTC) of Rs.37,67,091/-. The said appointment letter is reproduced below:

"Mohini Tilwani Senior General Manager, HR & Administration Dear Ms. Tilwani, Further to the two Office orders dated 13/04/2015and 16/04/2015, the process of assigning personnel to specific departments, grades, market facing designations and reporting arrangements has been finalized in convergence with the Performance Management System.

Keeping in view of the above, on behalf of IDMC Limited, I am pleased to forward to you, in duplicate, an offer for a contract of service for a fixed term. The details of the offer are described in the attachment. Please take time to carefully read the attachment and its annexes, which form a binding part of the contract.

The Company believes that you have the potential and competency to contribute significantly in enhancing organizational performance and individual development with a view to achieve IDMC's strategic goals to 2017-18.

We have now transited to the new organizational structure and accordingly you are assigned "Grade C". Your performance has been reviewed for the year2014-15 and you have been rated as "Outstanding Performance". You are designated as "Chief People Officer". Your CTC has been revised accordingly with effect from 1st April 2015.

May I request you to indicate your acceptance by returning Page 13 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT the duplicate copy of the attached contract duly signed on each page by September 11,2015. Otherwise, this offer will be treated as withdrawn.

With regards Yours sincerely sd/- illegible Anil Shenoi Executive Director Enclosures: as above."

7. A contract was duly signed by the parties which laid down the terms and conditions in detail. Clause No.13 of the contract explicitly provided that either side could terminate the contract by giving three months' notice or payment of three months' basic pay in lieu thereof.

8. Based on Outstanding annual performance report dated 27.07.2016 for the financial year 2015-16, as per management policy for remuneration and perks linked to performance, the annual salary package (CTC) of the respondent was enhanced by 15% to Rs.43,32,146/- with effect from 01.04.2016. After that, again on the basis of annual performance report dated 17.08.2017 being Exceptional for the financial year 2016-17, as per the management policy for remuneration and perks linked to performance, vide communication dated 17.08.2017, the annual salary package Page 14 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT (CTC) was enhanced by 12% to Rs.48,52,009/- with effect from 01.04.2017. The Annual Performance Reports are reproduced below:

"Performance Assessment - Financial Year 2015-16 Date : 27-07-2016 Your performance for the financial year 2015-16 has been reviewed and accordingly your performance rating is `outstanding Performance'.

Your CTC has been revised with effect from 01-April-2016 as per Annexure A.

Congratulations.

Keep it up.

With best wishes."

"Performance Assessment - Financial Year 2016-17 Date : 17-08-2017 Your performance for the financial year 2016-17 has been reviewed and accordingly your performance has been rated as `Exceptional Performance'.

Your CTC has been revised with effect from April 01, 2017 as per Annexure A.

All other terms and conditions remain same as mentioned in your existing fixed term contract letter.

We expect you to perform better in the coming years.

With best wishes."

9. Upon the post of Managing Director falling vacant, the appellant No.2 was appointed as Acting Managing Director of the Company-appellant No.1 with effect from 28.04.2017. Later on with effect from 18.11.2017, the appellant No.2 was appointed as the regular Managing Director of the appellant No.1 company.

10. In the meantime, a Committee had been constituted by the appellant No.2 (Managing Director) consisting of two high ranking executives to submit a report regarding the status and performance of the respondent. The said High Level Committee submitted its report on 21.11.2017 to the Managing Director (appellant No.2). After considering the report of the High Level Committee, it was decided to do away with the services of the respondent and accordingly the impugned termination order was issued on 28.11.2017. The report dated 21.11.2017 and the termination order dated 28.11.2017 are reproduced below as it would be of much relevance to consider and discuss their contents at a later stage. The report dated 21.11.2017 reads as under:

"REPORT Dated : 21 November 2017 Page 16 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT Over the last few months, there have been several issues related to the behavior and the approach to work of Ms. Mohini Tilwani. The Managing Director had desired that a committee consisting of the below 2 signatories examine the issues relating to problems and grievances of employees in their interface with the HR group and Ms. Mohini Tilwani. The committee interacted with various personnel and a gist of the lapses of the HR group and in particular that of Ms. Mohini Tilwani is as given below:

a Incorrect Form 16 given to employees. A number of employees have had to pay penalty also because of this and she has not even replied to such issues raised by them. This is a statutory requirement and has not been complied with. b Contractor operating in Units / plants without labour license to operate in that respective plant. This has been pointed out by the auditors as well in their reports and is a statutory lapse. There have also been issues of not maintaining proper PF records of the contractors. All these could lead to penalties on IDMC and prosecution of some of the employees in the top management team.

c Excess payment PLI (performance linked incentive) had been made to employees. This had to be then recovered from the employees and was done only after instructing the CPO accordingly.

d There are other cases of excess payment to employees which is being recovered leading to depletion of moral of the employees.

e Several employees were not included in the group insurance scheme. There were technicians and despite CFO sending reminder to CPO, the correct list was not provided. There was a case where an employee could not claim the expenses as he was not including in any of the policies. This upset all the employees of the unit/factory and they approached the AMD then. The company then had to bear the expenses.

f In the past there have been several cases of termination of employees, leading to a low morale amongst the employees. The employees have complained of high headedness of the CPO.

g The workers have been maintaining that it is very Page 17 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT difficult to get a redressal from HR and efforts to meet the CPO is normally in vain, as she would never give appointments. They then decided to meet the AMD directly and the AMD heard the issue of the workers including the insurance case which was resolved.

h The bonus calculation was found to be incorrect and the AMD had to intervene to pay the correct bonus. Payment of previous years may not have met the statutory requirements.

i Complaints of salary of apprentices and casual workers bills not being processed and paid on time. There is no monitoring of this activity from the department head. j AMD had to intervene in order to ensure that the payment of salary to regular employees is also being done correctly.

k No documents available to support the calculation with regard to Form 16 of last year. No files maintained and hence the information given to third party could not be verified.

l The contract of Prime consultants needs to be reviewed as none from HR has met the representative of Prime and the supporting documents do not indicate authenticity in the transaction. Due diligence in the appointment of these consultants has not been followed.

m There have been many instances of lapses from the CPO and her department, and the CPO would never take up the responsibility of the same, instead would blame the subordinates claiming that they are useless etc. n Several cases of full and final settlements of employees were not done and many have been complaining to the AMD also. Similarly settlements of PF issues were also pending. The settlements were not taken to the logical conclusion.

o We have received about 3 RTI's recently (on pseudonyms), the details of which indicate that the information asked has to by someone who is from the HR department and who has access to some critical information. Also the fact that some specific questions asked e.g appointment of Dr. Thomas indicates that the Page 18 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT RTI's have been sent by Ms. Tilwani, as no one else had information on this matter. The receipt of these RTI's are indicating that Ms. Tilwani is building upon a case to implicate someone / IDMC on some pretext or other. p We have received quite a few verbal as well as written complaints from various employees that her behavior is rude / diabolical and that they would not like to approach her for any personnel matter, even though she is head of HR. This is affecting the inter personnel relationships. q Her timings of coming to work in the mornings are serious concern. She has been invariably late and has generally never been in the office at the scheduled time of 0900 hrs. Being a responsible employee and the Head (HR), it is imperative that she sets a correct example, contrary to what is being done by her.

In view of the many lapses, some of them being of statutory nature and also the effect of the behaviour of Ms. Mohini Tilwani on the morale of the employees, the effectiveness of the HR department and the continuance of Ms. Mohini Tilwani or otherwise of her contract may be considered by the Managing Director."

10.1 Termination order dated 28.11.2017 reads as under:

"IDMC Limited HR/13345 28 November 2017 OFFICE ORDER With reference to the Agreement for Contract of service issued to you vide Letter No.HR 2834 dated 03 September 2015, Ms Mohini Tilwani, Chief People Officer, presently posted at IDMC Vithal Udyognagar is informed that as per Clause No.13 of the aforesaid contract, her services with IDMC are hereby terminated and she stands relieved from IDMC with effect from 28 November 2017 (after office hours).

Ms.Tilwani shall be paid an amount equivalent to three months' basic pay in lieu of three months' notice as per terms of her contract.

This is without prejudice to the right of the Management to recover the dues from Ms Tilwani, if any, as per rules. The full and final settlement shall be effected subject to clearance of No Dues Certificate.

For IDMC Limited Sd/-

Acting Managing Director Ms Mohini Tilwani Chief People Officer IDMC VU Nagar cc: MD's Office, IDMC Anand"

11. The appeal submitted by the respondent against the termination after due deliberation by the Board of Directors came to be discussed vide decision dated 10.02.2018 as the Board found that the termination was absolutely just and proper. The said decision of the Board was communicated vide covering letter to the respondent on 14.02.2018.

12. The writ petition challenging the termination order and the appellate Board's order came to be allowed by the learned Single Judge vide judgment and order dated 30.4.2019. Aggrieved by the same, present appeal was filed by the employer IDMC Ltd. and its Managing Director on 10.6.2019. It would be Page 20 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT appropriate to reproduce the findings recorded by the learned Single Judge in paras 5.1 to 5.9, 6 and 6.1 as under:

"5.1 At the outset, it may be stated that the petitioner has, in her pleadings, put up extensive averments and allegations in relation to the alleged sexual harassment caused to her by private respondent No.5 herein who was the acting Managing Director. It has to be observed that in appreciating the various contentions on merits of both the sides in respect of the impugned order of termination, it is not necessary to undertake the exercise of finding of truth or otherwise in the allegations. Nor such exercise can be undertaken in the writ jurisdiction. Nor it is in any way relevant. The Court has not at all gone into the veracity or otherwise of the allegations regarding sexual harassment to the petitioner. The Court also does not express any opinion on that count while judging the legality of the order of termination. What is relevant is whether the allegations about the sexual harassment even when they remain in the realm of allegations only, were in the root or in the foundation of taking action of passing the termination order against the petitioner.

5.2 Recollecting the admitted facts which are stated about the quick progress which the petitioner achieved in her career after joining the respondent No.3, and the stance of respondent No.3 in profusely praising the work and the efficiency of the petitioner and in giving her the enhanced emoluments,those events were as under, which took place within the short period which immediately preceded the order of termination dated 28th November, 2017.

(i) Reading the contents of the appointment order dated 16th April, 2013, it could be easily culled out that respondent No.3 wanted to improve upon its affairs and functioning and wanted a person with expertise to perform the work mentioned in the appointment letter. The services of the petitioner who was then working under respondent No.2 -

NDDB was solicited for respondent No.3 which was an organ of respondent No.2. It appears that by way of such arrangement, petitioner was employed. The petitioner was Page 21 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT offered what is called Cost to the Company (CTC) at Rs.26.00 lakhs.

(ii) It further becomes clear that respondent No.3 found the working of the petitioner to be outstanding. Petitioner came to be given the post of Chief People Officer and petitioner's CTC was increased to Rs.37,67,091/- on 03rd September, 2015.

(iii) Though in the said letter, word 'promotion' is not used, the submission of learned senior counsel for the petitioner could not be brushed aside lightly that it was an upward recognition of the petitioner and her performance was rewarded.

(iv) The events thereafter only underline that the petitioner's work was assessed to be in the realm of excellence. On 27th July, 2016, respondent No.3rated the work of the petitioner to be outstanding and again the CTC of the petitioner was increased to Rs.43,32,146/-.

(v) On 17th August, 2017 petitioner was given the rating of exceptional performance. At this stage also, her CTC was increased to Rs.48,52,009/-.

5.3 Thereafter the termination order was passed on 28th November, 2017 which was immediately after passage of few months. The quick sequence of events was unfathomable in view of the background facts of rating the petitioner high for her exceptional performance, increasing her salary virtually double within months and taking note of the services rendered by the petitioner and even by giving her elevated placement and terminating the services abruptly then-after. If these facts are measured by the principle of wednesbury reasonableness, the conduct on part of the respondent No.3 was incomprehensible, both in terms of rationality inaction and proportionality in taking the decision to terminate the services of the petitioner. 5.4 In GRIDCO Limited v. Sadananda Doloi [AIR2012 SC 729] the Supreme Court observed that with the development of law relating to judicial review of administrative actions, a writ court can now examine the validity of termination order passed by public authority. It Page 22 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT was stated that it is no longer open to the authority passing the order to argue that different action being in the realm of contract is not open to judicial review. It was further observed by the Apex Court that a writ court is entitled to judicially review the action and determine whether there was any illegality, perversity,unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract.

5.5 In recent decision in M/s.Surya Constructions v. The State of Uttar Pradesh being Civil Appeal No.2610 of 2019 decided on 08th March,2019, the Supreme Court stated the following principle.

"Equally, it is well settled that where the State behaves arbitrarily, even in the realm of contract,the High Court could interfere under Article 226 of the Constitution of India ['ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd.[(2004) 3 SCC 553]".

5.6 When the affidavit-in-reply on behalf of respondent Nos.3 and 5 filed in common, was seen,there was a total dearth of defence on the aforesaid score, as to what led the employer to suddenly terminate the services of the employee who, in the near past, was highly acclaimed for her efficiency in discharge of duties and was elevated in terms of remuneration and status. In paragraph 16 of the affidavit- in-reply, it was averred, "the working of the petitioner as was concluded after receiving several and continuous feedback from the employees/staff, was not compatible with the position she was engaged in, particularly with regard to smooth employee-employer relation which was marking the business of the respondent No.3". It was similarly stated in the affidavit elsewhere that working of the petitioner, as was concluded after having received several and continuous feedback from the employees, was not compatible with the position of the petitioner she placed, in particular with regard to smooth employee-employer relations which impacted the working environment.

5.7 When the petitioner's services was recognised as outstanding and exceptional, when she was elevated in terms of placement and position and when her emoluments Page 23 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT was sizeably enhanced in recognition of her performance, the above stand on part of respondent No.3 could hardly be countenanced. The aforesaid averments were bare averments without supported by any material, rather the attendant facts and circumstances suggested a situation quite contrary. Learned senior counsel for the petitioner could rightly describe the aforesaid defence on part of the respondent as a figment of imagination to submit that no such feedback existed.

5.8 The whole defence was sham and was raised for the sake of raising. As already noticed, even in terms of time- leg, there was a close proximity between the recognition and apprehension for the services of the petitioner on one hand and the abrupt order of termination on the other hand. Both did not have any conceivable cause and effect relationship. If at all there was any nexus, it was in terms of arbitrariness.

5.9 More importantly, the above circumstances were not the stand-alone circumstances. It had backdrop of serious allegations of sexual harassment spread over past few months, by the petitioner by highly placed employee of respondent No.3. The petitioner filed a criminal complaint alleging about harassment of such nature. It would be seen that the petitioner in her pleadings narrated by alleging events which took place on 28th November, 2017 in the office of respondent No.5 which were followed by filing a criminal complaint by the petitioner on 28thNovember, 2017. Passing of termination order coincided with the said date, that is 28th November,2017, as it was passed on the same day. On behalf of the petitioner, it was highlighted from the facts that passing of the order of termination by respondent No.3 was a simultaneously undertaken exercise when the petitioner was busy struggling to get her complaint registered with the police station. The termination order was passed on the same day and the amount of three months' salary in lieu of the notice was credited in the account of the petitioner directly without her knowledge.

6. All the above facts and events as obtained cumulatively, created a strong foundation on which the termination order was shown to have been erected. The foundational factor, even if circumstantial in nature, was too strong to resist a conclusion that it was a retaliatory act. Such was a Page 24 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT reasonable and inescapable conclusion in the facts and circumstances of the case. There was much more than what met the eyes in the termination order. Though passed by styling it a contractual termination, the order clearly appeared to have been guised under different facts and foundation.

6.1 The order of termination has to be held arbitrary and in violation of the tenets of Article 14 of the Constitution. It was a punishment inflicted on the petitioner in disguise of contractual termination which was by throwing to the winds even the bare minimum principles of natural justice. The arbitrariness, whenever and wherever exists, by its very nature, writs large."

13. Along with the present appeal, an application under Order XLI Rule 27 of the Code of Civil Procedure filed for production of additional documents was allowed by the Division Bench vide detailed judgment dated 31.07.2019. Aggrieved by the said order, the respondent preferred SLP before the Hon'ble Supreme Court which was dismissed by order dated 06.09.2019.

14. The present appeal along with additional documents admitted by the Division Bench vide order dated 31.07.2019 has been heard with the consent of the learned counsel for the parties.

15. The main questions which engage this Court are as to whether the termination of the services of the respondent is a Page 25 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT simpliciter termination as sought to be worded in the termination order or is it founded on well-established design to achieve the said end. If so, whether adequate opportunity was afforded to the respondent and whether the principles of natural justice and fair play as would have been attracted in such a situation was adhered to or not? Second question is whether in the facts and circumstances of the case the order of termination though worded as a termination simpliciter was in fact tainted by extraneous consideration.

16. We may briefly refer to the case law on the point. In the case of Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha reported in [(1980)2 SCC 593], the Supreme Court in paras 50 to 57 explained that even a simpliciter order of discharge may have camouflage and the reason for termination could be discovered. The Supreme Court also laid down that it is always open to the Court to lift the veil and ascertain the true character of the order. Paras 50 and 57 of the above report read as under:

"50 The anatomy of a dismissal order is not a mystery, once we agree that substance, not semblance, governs the decision. Legal criteria are not so slippery that verbal manipulations may outwit the court. Broadly stated, the Page 26 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT face is the index to the mind and an order fair on its face may be taken at its face value. But there is more to it than that, because sometimes words are designed to conceal deeds by linguistic engineering. So it is beyond dispute that the form of the order or the language in which it is couched is not conclusive. The court will lift the veil to see the true nature of the order."

"57.A rain of rulings merely adds to the volume, not to the weight of the proposition, and so we desist from citing all of them. A bench of seven judges of this Court considered this precise point in Shamsher Singh's case and Chief Justice Ray ruled: (SCC p. 855, para 80) "The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination IS illegal and must he set aside."

16.1 In the case of Chandra Prakash Shahi v. State of U.P. reported in [(2000)5 SCC 152], the Supreme Court further elaborated upon the difference in the understanding of the motive and foundation in cases of discharge / termination as follows in paras 27 to 29 thereof. Paras 27 to 29 reads as under:

"27. The whole case law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulam; right, the order is Page 27 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT valid; left, the order is punitive. It was urged before this Court, more than once including in Ram Chandra Trivedi's case (supra) that there was a conflict of decisions on the question of order being a simple termination order or a punitive order, but every time the Court rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this Court in various decisions to be applied to a different situation. But the concept of "motive" and "foundation" was always kept in view.

28. The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".

29. "Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action. If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is Page 28 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry."

16.2 Reference may also be had to the cases of Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar reported in [(2015)15 SCC 151] and Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. reported in [(1992)2 SCC 21].

17. We have heard Shri K.M.Patel, learned Senior Advocate assisted by Shri D.G.Chauhan and Shri Ronak Chauhan, learned counsel for the appellants and Shri Yatin Oza, learned Senior Advocate assisted by Shri M.N.Marfatia, learned counsel appearing for the respondent. We have also perused the material on record.

18. First argument raised by Shri Patel, learned Senior Counsel for the appellant is regarding the maintainability of the writ petition, as according to him the appellant is not the State within the meaning of Article 12 of the Constitution, as such the writ petition under Article 226 of the Constitution of India was Page 29 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT not maintainable. This argument has been dealt with in detail by the learned Single Judge referring to both facts and the law on the point and we do not find any reason to take a different view. We are conscious of the fact that we are in appeal and the scope is limited. The finding recorded by the learned Single Judge on this aspect cannot in any manner be said to be perverse or contrary to law.

19 Shri K.M.Patel, learned Senior Advocate raised several other arguments assailing the judgment of the learned Single Judge. In doing so, Shri Patel has placed reliance on a series of documents filed along with the application for taking additional evidence.

20 It has been vehemently urged by Shri K.M.Patel, learned Senior Advocate, that the learned Single Judge fell in error in recording a finding which was contrary to the records and was also vitiated inasmuch as adequate opportunity was not afforded to the appellant before the learned Single Judge. The said opportunity however has been availed by the appellant in the appeal by filing an application for taking additional evidence Page 30 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT on record under Order-41 Rule-27 of the Code of Civil Procedure, 1908. This application was allowed by this Court and the said order was affirmed by the Supreme Court. Shri Patel submitted that this Court may now consider the arguments and submissions of the appellant in light of the further material placed in appeal and thereupon test the finding of the learned Single Judge.

21. On the other hand, the contention of the respondent is firstly to the effect that even if the additional material placed by the appellant is taken into consideration, the ultimate finding of the termination being not a simpliciter one, cannot be disturbed and would still remain the same as would be apparent from the chronology of the facts and the material already on record which was there before the learned Single Judge. It is also the case of the respondent that the finding of the learned Single Judge cannot in any manner be said to be vitiated.

22. The additional evidence basically covers two aspects of the matter. Firstly, about the allegation relating to sexual harassment and that being the cause as espoused by the respondent for her termination and secondly, about the Page 31 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT foundation for the termination of the respondent. According to Shri Patel, learned Senior Counsel, the learned Single Judge without calling upon the appellant on the aforesaid two issues proceeded to record findings against the appellant on both the counts and therefore it had become necessary to place such material in appeal.

23. The facts and documents brought on record by the appellant through additional evidence exhibit the facts as follows:

23.1 The draft termination order was prepared on the same day in the morning at around 10 `O clock. The respondent having clandestinely come to know that her services were likely to be terminated, did not come to office in the morning of 28.11.2017 and communicated through message that she would be visiting Chikodara Plant at 4.00 p.m. A message was sent to the respondent to meet the Managing Director (appellant No.2) at 4.30 p.m. in his chamber on 28.11.2017. The respondent came to meet the Managing Director (appellant No.2) at the given time. Since the termination order was to be served on the respondent and there was apprehension of some kind of untoward scene Page 32 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT being created by the respondent, the Managing Director (appellant No.2) ensured the presence of another lady Officer in his chamber, a Company Secretary, Ms. Kinnari Shah. As expected, the respondent when requested to receive the termination order declined to accept and began shouting and threatening the Managing Director (appellant No.2). Without receiving the termination letter, she left the office of the Managing Director (appellant No.2). The respondent was also requested to part with and deposit the Company's laptop but the respondent refused to do so. According to the appellants, outside the chamber of the Managing Director (appellant No.2), Peon - Shri Govindbhai Parmar was also present.

23.2 As the respondent refused to accept the termination order, the same was sent by email at 6.13 p.m. on the same day i.e. 28.11.2017 and amount equivalent to three months' basic pay in lieu of notice was credited in the bank account of the respondent. The respondent again visited the office later in the evening along with police personnel and alleged that her office had been broken open and some of her goods had been removed but then it was found that her office was not broken open and it was out of embarrassment that the respondent had misbehaved. Page 33 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT A little after mid-night on the night between 28.11.2017 and 29.11.2017 at about 00.10 hours, the respondent lodged a complaint with the police alleging sexual harassment by the appellant No.2. The Company Secretary thereafter on 29.11.2017 lodged a First Information Report with the police against the respondent for forcibly taking away the laptop of the Company along with company's data.

24. We have also examined the documents relating to sexual harassment which find mention not only in the writ petition but also in the application for taking additional evidence filed in appeal. It is not necessary to discuss each and every document therein but we have no hesitation in recording a finding that the allegations of sexual harassment as raised by the respondent in her writ petition per se have no substance. The above finding is based on the material placed on record either before the learned Single Judge or before us in appeal. The Whatsapp message referred to in the writ petition in no manner makes out any allegation of stalking or sexual harassment. Further, the complaint and all other allegations relating to written complaint of sexual harassment are although of the same day as the date of termination of the services of the Page 34 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT respondent but at a point of time later than the service of the order of termination. The only evidence which remains is of the averment on oath of the respondent and its denial on oath by the Managing Director. It would be relevant to note that during the entire period prior to the termination no complaint of sexual harassment was ever made.

25. The above does not mean or in any manner is indicative of the fact that the termination order is not bad for this reason. The reason for testing the termination order is not confined only to the allegations of sexual harassment.

26. Shri Patel submitted that the learned Single Judge in paragraph-5.1 clearly mentioned that it is not necessary to undertake the exercise of finding of truth or otherwise in the allegations of sexual harassment. The learned Single Judge further went on to record that the Court has not at all gone into the veracity or otherwise of the allegations regarding sexual harassment of the petitioner and that the Court, does not express any opinion on that count while judging the legality of the order of termination. But at the same time, the learned Single Judge did take into consideration the allegations of sexual Page 35 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT harassment while recording its finding as stated in paragraph- 5.9. The extract from paras 5.1 and 5.9 of the impugned judgment have already been reproduced earlier.

27. Shri Patel has very vehemently submitted that the judgment of the learned Single Judge would stand vitiated in view of the aforesaid conflicting observations made in the judgment. Even if we accept the above argument the question still remains whether or not the order of termination was only a simpliciter order or upon lifting the veil there was a foundation to terminate the services of the respondent and if that be so, whether such foundation required extension of opportunity and also whether the said foundation was an honest exercise or a malafide exercise just to create a ground for termination.

28. Appellant No.2 the Managing Director of the appellant company became the Officiating / Acting Managing Director in April, 2017, upon the vacancy on the post of Managing Director being created. The appellant company subsequently appointed appellant No.2 as the regular Managing Director of the company on 18.11.2017. The relevancy of the above fact attains importance as within 10 days of the appellant Page 36 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT No.2 taking over as the regular Managing Director, the services of the respondent stand terminated.

29. Now coming to the stand taken by the appellant company with regard to the reason for termination. The appellant company on its own has come up with a case that the termination had a basis or a reason. According to the appellant company, the working of the respondent was not found to be satisfactory so as to allow her to continue any further. According to the appellants, a Committee of two members was constituted by appellant No.2 herein, the Managing Director to submit a report regarding the working of the respondent as some complaints were being received from different departments regarding non-performance or unsatisfactory performance of the respondent, causing harassment to the employees of the appellant company and certain financial benefits being not extended to them within time. The report of the two members committee is also placed on record by the appellant which is dated 21.11.2017. The report does not refer to the date on which the Committee was constituted. The contents of the report are as vague and general as can be. The contents of the report dated 21.11.2017 have already been reproduced.

Page 37 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT

30. Even if it is accepted that the findings were serious and constituted a misconduct then opportunity ought to have been given. Absence of any enquiry or opportunity would make it violative of principles of natural justice and fair play.

31. However, the affidavit of appellant No.2 filed along with the application for additional documents being taken in appeal mentions in paragraph-14 onward regarding the serious lapse on the part of the respondent resulting into heart-burning and hardship of the employees, also resulting into financial loss to the company. Various instances are given. In paragraph-23, it is stated that an independent committee was constituted in the first week of November, 2017 and paragraph-24 refers to the report annexing a copy thereof. Based upon such report, the contract came to be terminated by the order dated 28.11.2017. The contents of the affidavit filed by appellant No.2 both before the learned Single Judge and also in the appeal clearly mention that there was no complaint of sexual harassment from April, 2013 till November, 2017. Interestingly, there was no complaint on the working or the performance of the respondent during this period from April, 2013 till the second half of 2017, when she Page 38 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT was given the last salary revision rating her to be `Exceptional' in August, 2017. If the working of respondent was unsatisfactory, detrimental to the company, causing financial loss to the company and also losing the trust of the employees, then by no stretch could the assessment or the ratings of her Annual Confidential Reports as outstanding and excellent be justified.

32. Shri K.M.Patel, learned Senior Advocate has also submitted that termination of the services of the respondent was in terms of the contract as such would not fall within the scope of judicial review unless termination is malafide or for extraneous reasons. In support of this submission, Shri Patel has relied upon judgments of the Supreme Court in the case of Gridco Ltd. vs. Sadananda Doloi reported in (2011)15 SCC 16 and Satish Chandra Anand vs. Union of India reported in AIR 1953 SC 250. There is no issue at all with regard to the aforesaid submission of Mr. Patel made on behalf the appellant - employer. There can be no quarrel also on the proposition that if termination of a contract is in terms of the agreement and termination is simpliciter then the Courts would not be interfering with such termination. However, as per the own submission of Mr. Patel there would be justification for judicial Page 39 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT review in cases where termination is malafide or for extraneous reasons. It is this aspect that we have thoroughly examined. 32.1 Shri K.M.Patel, learned Senior Advocate in an attempt to find fault in the judgment of the learned Single Judge has further taken the following grounds in addition to the grounds already raised and discussed.

[i] The learned Single Judge over-looked the fact that the appeal filed before the Board of Directors had been dismissed and that the Apex Body i.e. Board of Directors has also found that the continuance of the respondent was not in the larger interest of the organization. [ii] The observations made by the learned Single Judge regarding Mr. Rajesh Subramaniam, Managing Director, who is arrayed in person, as respondent No.5 had not filed his personal affidavit nor his vakalatnama in his personal capacity and that there was no denial of allegations of sexual harassment, is misplaced. The affidavit on behalf of the employer company was filed by the Managing Director Mr. Subramaniam and as such the view taken by the Page 40 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT learned Single Judge is too technical and erroneous. [iii] The learned Single Judge ought not to have granted relief of reinstatement with consequential benefits in view of the fact that the respondent herein had made reckless and false allegations of sexual harassment. 33 We have perused the decision of the Board of Directors dated 10.02.2018 as communicated vide covering letter dated 14.02.2018. The decision of the Board of Directors is non- speaking one and it only relied upon the legal opinion given by a senior advocate, which apparently has been accepted. There is no apparent discussion or application of mind by the Board of Directors. We may further record here that the appellant company has admitted in the appeal of not having filed complete documents before the learned Single Judge as adequate opportunity was not given. The said opportunity has been availed in the appeal and the documents filed in appeal have been duly examined by us and in effect we have accepted the argument of Mr. Patel, learned Senior Advocate to the effect that the allegations of sexual harassment as made by respondent in the petition could not be held to be the basis of the termination, Page 41 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT but at the same time we have also held that the termination of the respondent's contract was neither bonafide nor fair and reasonable. We have in principle accepted the contention of Mr. Patel. We may further mention here that even in the absence of the baseless and reckless allegations of sexual harassment being not accepted by us, we are of the view that the termination of the contract of respondent was arbitrary and not bonafide. Once the termination is held to be arbitrary, the respondent would be entitled to all benefits as if termination order did not exist. 33.1 Shri Patel referring to the additional evidence filed in the appeal has drawn our attention to the various facts and circumstances to show that working of the respondent was not conducive to harmonious and smooth industrial relations in the factory. These are broadly as under:

[i] Large number of employees were not covered by Voluntary Health Scheme (VHS) under which employees and their family members receive free medical treatment in a reputed hospital at Anand (page 592 to 601).

[ii] Excess payment made to employees towards Page 42 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT performance linked incentive requiring recovery which led to resentment amongst employees (page 630-648). [iii] Wrongful Income Tax deduction from the salaries of employees and delay in issuance of Form No.16 (page 578-

591).

[iv] Non-payment of dues like provident fund etc., to the legal representatives of deceased employee for about one year which shows callous and indifferent attitude. After her termination from service, payment of Rs.20,49,375/- was paid by the appellants to legal heirs of the deceased employees (page 672 to 675).

[v] The contractors engaged by the appellant No.1 were allowed to work in violation of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, inasmuch as they were operating in the factory for which there was no license. It may be stated that appellant No.1 has six factories and some of the contractors were working in factories where they had no license to work. This exposed the management to risk of prosecution and Page 43 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT possible claim for regularization by contractor labourers (page 576 of audit report which shows table depicting the above position).

[vi] Though the reporting time is 9.00 am., the respondent was frequently reporting late for duty (page 676 to 681).

[vii] The appellants had reason to believe that the respondent herself or at her instance was getting RTI applications made pseudonymously.

[viii] The respondent had got consultancy services without due diligence to Prime Business Solution Mumbai at higher rate of Rs.14.40 lakhs per annum without bringing to the notice of the Managing Director offer made of Rs.7.20 lakhs per annum by M/s.Work Force Solution, Ahmedabad (page 616 to 618, 628 & 635).

33.2 These allegations are found to be prima facie proved in the Enquiry Report dated 21.11.2017 and they form the foundation for the termination of the contract of the respondent, Page 44 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT then they were serious misconducts. Some of them relate to financial loss to the company and any charge or allegation of financial loss would amount to serious misconduct. It cannot be said that such charge or allegation would be relating to average or poor performance and that too from an officer as high as the respondent drawing a substantial annual package. 33.3 We further find from the above allegations that they do not relate to a period after August, 2017 to first week of November, 2017. These allegations would relate back to the work of the respondent over a much larger period of may be couple of years. Therefore, a proper inquiry followed by adequate opportunity ought to have been afforded before terminating the contract.

33.4 Since Mr. Patel has insisted and referred to these documents, we may only refer to one mentioned at point [iv] above which shows that this was a false charge / allegation sought to be made against respondent. The documents filed at page 672 to 675 of the paper book relate to the allegations that there was non-payment of dues like provident fund, etc. to the legal representatives of the deceased employee for about one year Page 45 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT which shows callous and indifferent attitude of the respondent. The document at page 672 refers to a claim of provident fund made on 10.01.2018 in respect of deceased employee Shri Girishbhai Patel. The same document shows that the claim is dated 10.01.2018, which is after the termination of the respondent made on 28.11.2017. The other document attached at page 675 is the death certificate, according to which, Shri Girishbhai Patel died on 26.01.2018. The death certificate is shown to have been issued on 10.08.2017. The family members did not obtain the death certificate for 8 months and they apparently made the claim on 10.01.2018. From the document at pages 673 & 674 we find the payment of Rs.20,49,375/- made to the legal heirs on 12.01.2018 by NEFT. How the respondent could be held responsible for the delayed payment, is not understood from the above documents. This may further indicate that there was some pre-determination to somehow or the other hold the respondent guilty of certain charges with which she had no concern and stands falsified from the record itself. Thus, the entire exercise of setting up of the Committee and getting a report was not bonafide. Other allegations referred to above will show that they are either vague and if they were actually existing then the respondent did not deserve "Outstanding" and Page 46 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT "Exceptional" annual performance reports. Both cannot coexist and go together.

34. In our considered view also, the facts and circumstances which are placed on record by way of documents and the chronology set out compels us to derive an inference that the termination of the contract was not simpliciter, genuine and bonafide. We do not wish to record any further and leave the matter at this stage. The ultimate conclusion of the learned Single Judge, in our considered opinion, does not require any interference.

35. For all the reasons recorded above, the appeal fails and is accordingly dismissed. In view of the dismissal of the appeal, connected Civil Applications stand disposed of.

(VIKRAM NATH, CJ) (ASHUTOSH J. SHASTRI, J) FURTHER ORDER Page 47 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020 C/LPA/1225/2019 CAV JUDGMENT After pronouncement of the judgment, Mr. D.G.Chauhan, learned counsel for the appellants made a request that the effect and operation of this judgment be stayed for three months to enable him to avail the further remedy. However, in the facts and circumstances of the case, we do not find any justification for accepting the request. It is accordingly rejected.

(VIKRAM NATH, CJ) (ASHUTOSH J. SHASTRI, J) Vahid/RADHAKRISHNAN.K.V./ GAURAV THAKER/ SUBRAHMANYAM Page 48 of 48 Downloaded on : Mon Jul 27 20:33:19 IST 2020