Judgment. wp3943.11
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3943 OF 2011
AND
LETTERS PATENT APPEAL NO. 306/2009.
..........
WRIT PETITION NO. 3943 OF 2009.
Ku. Alka d/o Mohansingh Thakur, Aged about 43 years, Occupation Service, Resident of Indira Nagar, Tumsar, Tq. Tumsar, District Bhandara. ..... PETITIONER.
VERSUS
1. Director of Education, Secondary and Higher Secondary Education, Directorate Maharashtra State, Pune - 1.
2.Backward Classes Shaikshanik and Shanskrutik Sudharna Mandal, through its President, Durga Colony, Tumsar, District Bhandara. ..... RESPONDENTS.
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Shri M.S. Wakil, Advocate for the Petitioner. Ms. N.P. Mehta, Asstt. Govt. Pleader for Respondent No.1. Shri R.L. Khapre, Advocate, for Respondent no.2 in Writ Petition and Appellant in L.P.A.
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Judgment. wp3943.11
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CORAM : B. P. DHARMADHIKARI
& ARUN D.UPADHYE ,
JJ.
DATE : SEPTEMBER 07, 2017.
ORAL JUDGMENT : (Per : B.P. Dharmadhikari, J.) Matters are part heard. In view of facts which have emerged while Shri Wakil, learned Counsel for the petitioner was arguing Writ Petition No. 3943/2011, we do not find it necessary and proper to consider challenge in Letters Patent Appeal No. 306/2009, at this stage. Parties agree that adjudication in that Letters Patent Appeal has to wait.
2. Facts necessary for present order can begin with narration of order of termination dated 16.08.1996. The appellant in Letters Patent Appeal and respondent no.2 in present Writ Petition (hereinafter referred to as "the employer" for short), terminated petitioner Alka, by an order dated 16.08.1996. Reasons therefor are again not relevant at this stage.
3. Petitioner Alka, approached School Tribunal in Appeal under Section 9 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977. The School Tribunal decided here appeal on 14.12.2000 and found that being a permanent employee, she could not have been terminated, except without holding proper departmental ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:02 ::: Judgment. wp3943.11 3 enquiry. Defence of employer that she did not possess necessary qualifications prescribed in Schedule-B of Item 4 for the post of Craft Teacher and, therefore, she did not attain permanency, was turned down.
4. Learned Single Judge in Writ Petition No. 582/2001, filed by the employer, brought down the quantum of back wages to 25% and directed respondent no.1 in Writ Petition to hold enquiry into the qualification held by petitioner Alka. This judgment of learned Single Judge has been questioned in Letters Patent Appeal. In Letters Patent Appeal, this Court has granted stay to reinstatement. During pendency of Letters Patent appeal, respondent no.1 has completed the exercise of finding out the qualification of petitioner Alka and by order dated 21.01.2010, declared her not qualified.
5. Appellant employer in Letters Patent Appeal is relying upon this finding to press the appeal.
6. However, Shri Wakil, learned counsel appearing on behalf of the petitioner has invited our attention to apparent violation of principles of natural justice. He has pointed out how various notices for hearing were sent and the petitioner Alka was denied an effective opportunity to bring on record equivalence or then to establish her identity. ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:02 :::
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7. Shri Khapre, learned Counsel appearing for respondent no.2 in Writ Petition No. 3943/2011 has very fairly submitted that respondent no.2 is not concerned with the orders or defects, if any, in the process of verification undertaken by respondent no.1.
8. Ms. Mehta, learned A.G.P. attempted to justify the exercise. She claimed that dates of hearing or changes therein were communicated to the petitioner Alka from time to time and now on 18.01.2010, she was aware of hearing scheduled on 21.01.2010. She submits that exercise was undertaken by respondent no.1 because of directions of this Court in Writ Petition and hence, there was anxiety to complete the same at the earliest.
9. Notices of hearing issued to petitioner are of different dates. It appears that on 18.01.2010, she received two inconsistent notices. By a communication dated 15.01.2010, served upon her on 18.01.2010, she was supposed to appear at Pune on 19.01.2010. On very same date, employer forwarded her a communication and pointed out that hearing scheduled on 19.01.2010 was postponed to 21.01.2010. According to the learned counsel for petitioner, because of this sudden development and as her future was at stake, petitioner Alka got disturbed and in panic rushed to the office of the Deputy Director of Education, Nagpur Division, Nagpur ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:02 ::: Judgment. wp3943.11 5 to enquire about correct position.
10. We find that this change in date or then date of hearing was within knowledge of Education Officer at Bhandara. On 14.01.2010, that officer wrote to employer and communicated date of hearing as 19.01.2010. Date of hearing was however, not communicated to Alka. It appears that on 15.01.2010 itself Education Officer was informed by the office of the Director of Education, that hearing would take place on 21.01.2010.
11. Thus, in the face of this development on 15.01.2010, petitioner received a communication on 18.01.2010, which mentioned date of hearing to be 19.01.2010 only. This communication is by her employer.
12. These developments therefore, give credence to her apprehension and justify act of rushing to Nagpur to verify correct date.
13. It is on record that after going back, on 21.01.2010, she sent a telegram to respondent no.1 at about 2 p.m. and informed her inability to remain present.
14. It is in this backdrop that the impugned order came to be ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:02 ::: Judgment. wp3943.11 6 passed at Pune, after holding hearing on 21.01.2010. The order is communicated to petitioner Alka with forwarding letter dated 03.03.2010. Order does not carry any date.
15. Order does not make reference to telegram sent by the petitioner Alka. It may therefore, have been passed immediately after hearing or before receipt of the telegram.
16. In any case, when various communications about fixing date of hearing and calling upon her to remain present at Pune, or then about change in date of hearing are looked into, fact that notices were of too short duration is clear. Petitioner was not given even breathing time to prepare and to reach Pune. Notices were of at the most two days or three days duration.
17. In this situation, we do not wish to go into the contention of learned A.G.P. that petitioner Alka could have remained present on 21.01.2010. Learned Single Judge has on 25.03.2009, given time of two months to respondent no.1 to complete the exercise. That time was already over, and merely because there is a time bound direction or then time has expired, principles of natural justice cannot be disregarded. It appears that after noticing the fact that time has expired, office of ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:02 ::: Judgment. wp3943.11 7 respondent no.1 got panicky and issued notices one after the other to the parties.
18. Considering the issue referred to the Director and its importance and these developments, we quash and set aside the said order communicated to Alka with forwarding letter dated 03.03.2010. Proceedings for finding out correctness or otherwise and sufficiency of educational qualification held by Alka, are placed back before respondent no.1. We direct the parties to appear before respondent no.1 on 29.09.2017, and to abide by its further instructions in the matter. The authority shall on that date or thereafter, as per its convenience proceed to hear the parties and take suitable decision in terms of directions contained in judgment of learned Single Judge dated 25.03.2009 in Writ Petition No. 582/2001 in next three months.
19. Accordingly we allow Writ Petition No. 3943/2011. Rule is made absolute in aforesaid terms with no order as to costs. Office to list Letters Patent Appeal No. 306/2009 on 08.01.2018.
JUDGE JUDGE
Rgd.
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