Madhuri Prakash Kulkarni vs State Of Maharashtra And Anr.
2002 Latest Caselaw 398 Bom

JUDGMENT

V.G. Palshikar, J.

1. By this petition the petitioner has challenged the order dated March 27, 2001 passed by respondent No. 2 i. e. Maharashtra Housing and Area Development Board, Pune. By this order the petitioner's services were terminated, Certain facts giving rise to the present petition will have to be noticed for proper adjudication of the questions raised before us by this petition.

2. On July 26, 1982 the petitioner was appointed as judicial clerk in the office of the Estate Manager, Pune of the respondent No. 2 - Board. Since then she is working there under the respondent No.2. In October, 1992 the petitioner was prosecuted under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 on the allegation that the petitioner demanded and attempted to obtain and accepted Rs. 100/- from one Shri A. D.Kadam as illegal gratification for issuance of refund of deposit cheque.

3. On November 17, 1993 the petitioner's suspension was revoked and she was permitted to work as clerk. On September 19, 1998 the learned Sessions Judge, decided the Criminal Case No. 6 of 1993 and convicted the petitioner to suffer rigorous imprisonment for one year and fine of Rs. 500/-. This judgment of the Sessions Judge is pending before this Court in Criminal Appeal No. 744 of 1998. The appeal is admitted and the sentence of conviction of the petitioner is suspended. After the conviction of the petitioner for criminal offence the respondent No. 2 passed an order on October 9, 1998 terminating the services of the petitioner with effect from the date of her conviction by the Competent Court. Obviously this action was taken by the Board as the petitioner was convicted of offence involving moral conduct and consequently no further inquiry into her conduct was necessary.

4. The petitioner represented against this order of termination basically on the ground that the conviction is not final and her appeal is pending before the High Court and consequently the likelihood of her total acquittal cannot be overruled and she should not therefore be made to suffer during the pendency of that appeal. The respondent No. 2 accepted this representation and again reinstated the petitioner in service on May 17, 1999. This order was passed subject to the result of Criminal Appeal No. 744 of 1998 pending in this Court challenging the conviction of the accused. Thus, the petitioner was reinstated in services of respondent No.2 for second time after taking into consideration the pendency of her criminal appeal. From May 17, 1999 therefore the petitioner was working with the respondent No. 2.

5. However on March 27, 2001 another order was issued whereby the order dated May 17, 1999 reinstating the petitioner cancelling the order of termination dated October 9, 1998 was cancelled that is to say that the petitioner was again terminated from services. It is this order which is impugned in this writ petition by the petitioner basically on the ground of violation of principles of natural justice. It is the case of the petitioner that as far as the law applicable on the issue of termination of service is concerned it is well settled. The employer has the right to terminate the services of an employee who is found guilty of criminal offence by the Court of Competent Jurisdiction if the Service Rules so permit and in such event the termination can take place immediately there being no need to observe the principles of natural justice before termination of services as the delinquent employee has already been tried in the Court of law for alleged misconduct and there is finding of Competent Court which shows that she is guilty of misconduct or offence as the case may be. This is also settled principle of law that if for the same state of facts the employer wants to punish the employee then irrespective of pendency of the proceedings or result thereof the right of the employer to do so is affected. He can proceed departmentally to punish the employee for the alleged misconduct. However in such a case the employer is duty bound to take up such departmental proceedings as are envisaged by the department for conducting a fair trial of the delinquent for the alleged misconduct committed by him that is to say a reasonable opportunity of presenting himself be given by the employer.

6. In the present case the employer i.e. respondent No. 2 has chosen the first option viz. terminating services of the petitioner in view of the order of conviction passed by the Court of Competent Jurisdiction. Such termination was therefore ordered by the respondent No.2 on October 9, 1998 and the petitioner was put out of job. It was thereafter that her request to consider the pendency of criminal appeal in High Court that the mailer was reconsidered by respondent No. 2 and she was reinstated in services for the second time. Here the respondent No. 2 employer has chosen to wait for outcome of the appeal proceedings pending before this Court and has consequently reinstated the petitioner for the second time. It is also during that period open for an employer in such event even now to terminate the services of the petitioner on the ground of conviction or error committed in earlier reinstatement but in so doing it must in law observe the principles of natural justice. A notice to show cause why her services be not terminated in view of the issuance of order dated May 17, 1999 was necessary. The petitioner was entitled to show cause why the second reinstatement was not liable to be reviewed, recalled or revoked. Failure on the part of respondent No. 2 to give any such notice has resulted in obvious violation of principles of natural justice and on this ground alone the second order dated March 27, 2001 is liable to be set aside. It is accordingly set aside.

7. We however make it clear that right of the respondent No. 2 employer to issue show cause notice as to why the order dated May 17, 1999 should not be recalled or reviewed as the petitioner will have protection of law for reviewing the order after giving adequate opportunity to show cause to the petitioner. In the result therefore the petition is allowed. Rule made absolute. Order dated March 27, 2001 is quashed and set aside. The right of employer-respondent No. 2 - Board to initiate the proceedings as mentioned above is reserved. There will be no order as to costs.