Ku. Veena Shamrao Kakde vs The Presiding Officer, ...
2004 Latest Caselaw 242 Bom

JUDGMENT

S.T. Kharche, J.

1. Rule. Rule made returnable forthwith.

2. By invoking the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the order dated 3.4.2002 passed by the College Tribunal by which the appeal preferred by the petitioner employee was dismissed, upholding dismissal issued by the management on 17.8.2001 w.e.f. 17.9.2001 is under challenge in this petition.

3. Relevant facts are as under :

The petitioner was appointed as Lecturer on 20.12.1995 In Social Work in the college run by respondent No. 3. The respondent No. 5 granted approval to the appointment of the petitioner on 6.3.1996 for the academic Session 1995-96 so also the respondent No. 4 Director of Social Welfare, Maharashtra State. Pune approved the appointment of the petitioner on 31.3.1998. The petitioner had secured admission to M. Phil, course for the year 1996-97 since there were no students in the college of respondent No. 2 for M. Phil, course. The employees who were the lecturers and teaching as well as a non teaching staff working in the college went on hunger strike on 8/ 11 /2000 in respect of various demands by giving one month's notice in advance. The respondent Nos. 2 and 3 started disciplinary action against the employees who had participated in the strike and the petitioner alongwith other employees were placed under suspension and departmental enquiry was started against them. On 7.12.2000 there was settlement between the management and the employees as well as the non teaching staff. The petitioner was placed under suspension by an order dated 27.4.2001 on certain charges against her. The departmental enquiry against the petitioner was completed on 30.7.2001. Thereafter the services of the petitioner came to be dismissed w.e.f. 17.9.2001. The petitioner, being aggrieved by her dismissal, carried appeal before the University/ College Tribunal. The Tribunal rejected the appeal on 3.4.2002 and this is how the petitioner is before this Court.

3. Mr. Deshpande, the learned Counsel for the petitioner contended that the proceedings of departmental enquiry have been vitiated because the petitioner was not paid subsistence allowance as well as TA/DA allowance for attending the departmental enquiry at Nagpur. and therefore, her dismissal was ab initio void. He contended that the petitioner was not given the opportunity to defend herself in the enquiry proceedings, and therefore, there was violation of the principles of natural justice. He contended that this Court dealt with the identical question in unreported case of the similarly situated employee of the college in Writ Petition No. 11 5 of 2003. He pointed out that this Court by the order dated 1st July, 2003 passed in the bunch of writ petitions including Writ Petition No. 115 of 2003 held that since the subsistence allowance was not paid to the employees during the period of departmental enquiry proceedings, the enquiry proceedings have been vitiated, and therefore, non payment of the subsistence allowance during the period of suspension and enquiry goes to the root of the matter, and therefore, even the enquiry would stand vitiated. Mr. Deshpande further contended that he has no objection if the petitioner is reinstated in service with all monetary benefits flowing from the reinstatement and if the respondent management wants to take necessary steps for initiating fresh enquiry into the charges against the petitioner, in accordance with law.

4. The next submission of Mr. Deshpande is that the appeal of the petitioner has been rejected by the Tribunal on 3.4.2002 and this petition has been filed on 7.3.2003, after about a period of one year. He contended that Section 5 of the Limitation Act, 1963 is not. applicable for invoking the jurisdiction under Articles 226 and 27 of the Constitution, and therefore, question of limitation does not arise. In support of these submission, he relied on the decision of the Hon'ble Supreme Court in the case of State of U.P. and Ors. v. Raj Bahadur Singh . Mr. Deshpande contended that the petition has been filed within one year and hence the same cannot be thrown out on the ground that it suffers from latches and delay. He further contended that the impugned order cannot be sustained in law and deserves to be set aside.

5. Mr. Mardikar, the learned Counsel for the management and college, respondent Nos. 2 and 3 contended that the subsistence allowance has been already paid to the petitioner, may be after the decision of the enquiry, and therefore, it cannot be said that the enquiry against the petitioner is vitiated on the ground of non payment of the subsistence allowance when the enquiry proceedings were going on. He contended that the petitioner has been paid not only his salary but also the subsistence allowance for the period 1.8.1998 to 30.9.2000, and therefore, her dismissal on various charges was legal. He contended that the petitioner has filed this writ petition after the period of about one year from the decision of the Tribunal and no explanation for delay and latches has been given. Mr. Mardikar contended that in such circumstances since the Tribunal was perfectly justified in dismissing the appeal, the writ petition itself is not maintainable and deserves to be dismissed. In support of these submissions, he relied on the decision of the Hon'ble Supreme Court in the case of M.C. Ahmednagar v. Shah Hyder Beig .

6. I have given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is not in dispute that the petitioner is employed as Lecturer in the Athavale College, Chimur, district Chandrapur. It is also not in dispute that there was some settlement between the management and the employees on 7.12.2000 in respect of the demands put forth by the employees. Thereafter, instead of adhering to the settlement, it appears that the employees had gone on hunger strike on 8.11.2000 and thereafter several employees were placed under suspension and the departmental enquiries were held against them.

7. Mr. Deshpande, the learned Counsel for the petitioner rightly submitted that this writ petition is perfectly maintainable as Section 5 of the Limitation Act, 1963 is not applicable. Simply because the writ petition is filed after the period of one year, it does not follow that the same suffers from latches and delay. In State of U.P. v. Raj Bahadur Singh it has been held in para 2 that : "In our opinion the approach of the High Court is not justified. There is no time-limit for filing the writ petition. All that the Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him. But the High Court appears to have examined the matter as if it was a case under Section 5 of the Limitation Act, 1963. Apart from the above, we do not think that the proceedings should be prolonged any further. Even if the Tribunal is right in its opinion, the only result would be that the disciplinary authority would be now required to pass final order in the disciplinary proceedings. Having regard to the nature of the charge and having regard to the nature of the charge and having regard to the fact that the respondent was only a temporary employee....

8. This Court while dealing with the bunch of writ petitions took the view that since the subsistence allowance was not paid to the employees during the course of enquiry proceedings, the enquiry itself vitiated. There is no reason for this Court to take a different view of the matter especially when it is admitted position that subsistence allowance was not paid to the petitioner when the enquiry was going on against her. It would also be relevant to note that enquiry against the petitioner was conducted at Nagpur and she was required to attend the dates of enquiry at Nagpur from Chimur and it is contended that she was also not paid the T.A. and D.A. for the purpose of attending the dates of the enquiry. It would reveal that the management-college did not dispute the allegations of the petitioner before the Tribunal that subsistence allowance as well as T. A, and D.A. was not paid, and therefore, the only conclusion could be reached is that the petitioner was not paid the subsistence allowance as well as T.A. and D.A. which has prejudiced her rights of putting her defence. Non payment of subsistence allowance during the period of suspension and enquiry, in this case also goes to the root of the matter and therefore, this Court is of the considered opinion that the order of the Tribunal will have to be set aside. In that view of the matter, the impugned order passed by the Tribunal cannot be sustained in law and as a result of this, the petition deserves to be allowed. This Court, therefore set aside the impugned order and direct the respondents to reinstate the petitioner in service and it follows that the petitioner would be entitled to get necessary benefits flowing from the reinstatement. The petitioner is directed to report on duty on 15th April, 2004 and the respondents would permit her to file her joining report and would also send her salary bills to draw all benefits, if not paid earlier to which the petitioner would be entitled to, to the competent authority. It is also made clear that the respondent management would be at liberty to take necessary steps for initiating a fresh enquiry into the charges levelled against the petitioner, in accordance with law, if they so desire. The petition stands disposed of accordingly in these terms and conditions.