Bombay High Court
Shri Madhukar V. Wagh vs The Chief Executive Officer on 23 November, 2011
Bench: G. S. Godbole
1
spb
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8330 OF 2011
Shri Madhukar V. Wagh ... Petitioner.
V/s.
1. The Chief Executive Officer, Education
Dept. (Primary) Z.P., Raigad, Alibag & Anr. ... Respondents.
---
WITH
WRIT PETITION NO. 8331 OF 2011
Shri Sachin A. Dhole ... Petitioner.
V/s.
1. The Chief Executive Officer, Education
Dept. (Primary) Z.P., Raigad, Alibag & Anr. ... Respondents.
---
WITH
WRIT PETITION NO. 8332 OF 2011
Sou. Jayshree A. Pokale ... Petitioner.
V/s.
1. The Chief Executive Officer, Education
Dept. (Primary) Z.P., Raigad, Alibag & Anr. ... Respondents.
---
WITH
WRIT PETITION NO. 8334 OF 2011
Shri Ashok D. Khedkar ... Petitioner.
V/s.
1. The Chief Executive Officer, Education
Dept. (Primary) Z.P., Raigad, Alibag & Anr. ... Respondents.
---
WITH
WRIT PETITION NO. 8335 OF 2011
Shri Satish Vaijinathrao Pokale ... Petitioner.
V/s.
1. The Chief Executive Officer, Education
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2
Dept. (Primary) Z.P., Raigad, Alibag & Anr. ... Respondents.
---
WITH
WRIT PETITION NO. 8336 OF 2011
Shri Sandeep S. Funde ... Petitioner.
V/s.
1. The Chief Executive Officer, Education
Dept. (Primary) Z.P., Raigad, Alibag & Anr. ... Respondents.
---
WITH
WRIT PETITION NO. 8622 OF 2011
Smt. Anita Raosaheb Nagargoge ig ... Petitioner.
V/s.
1. The Secretary, Shikshan Sewak District
Selection Committee, Raigad- Alibag & Ors. ... Respondents.
---
Mr. S.C. Mangle, Advocate for the Petitioners in W.P.Nos. 8330/11 to
8332/11 and 8334/11 to 8336/2011.
Mr.Sachin U.Dhakephalkar, Advocate for the Petitioner in W.P.
8622/11.
Mr. C.G. Gavnekar, Advocate for the Respondent Nos.1 & 2.
Ms. P.S. Cardozo, AGP for Respondent No.5 in W.P.No.8622/2011.
---
CORAM : G.S. GODBOLE, J.
DATE : 23rd NOVEMBER, 2011
P.C. :
1 Since the controversy involved in all these Writ Petitions is
identical and since the Respondents in all these Petitions are same
though the Petitioners are different, all these Petitions are being
disposed of by this common Order. Even Advocates appearing for
the Petitioners and Respondents have consented for disposal of the
Writ Petitions by a common Order.
2 Rule. Rule made returnable forthwith in all these Petitions. Mr.
Gavnekar, Advocate waives service on behalf of the Respondent Nos.
1 and 2. On the oral prayer made by the Advocate for the Petitioners
in Writ Petition Nos. 8330/11, 8331/11, 8332/11, 8334/11,
8335/11 and 8336/2011, the name of Respondent No.3 -Block
Development Officer is allowed to be deleted. Similarly on the oral
prayer by the Advocate for the Petitioner in Writ Petition No.
8622/2011, name of the Respondent No.4-Block Development Officer
is allowed to be deleted. The learned AGP appears for Respondent
No.5 in W.P.No.8622/2011.
3 Government of Maharashtra has framed a Scheme called as
"Shikshan Sevaks Scheme" by issuing G.R. dated 13th September, 2000
which was modified from time to time by issuing various Government
Resolutions, one of which is dated 27th February, 2003. All the
Petitioners were appointed in the post of Shikshan Sevak on the
following dates : In the first six Writ Petitions, all the Petitioners
were appointed on 21.12.2006 as Shikshan Sevaks; whereas in the 7th
Petition filed by Advocate Mr. Dhakephalkar, the Petitioner was
appointed on 5th December, 2006. All these Petitioners accordingly
served as Shikshan Sevaks for almost three years and at that stage, the
Chief Executive Officer, Zilla Parishad Raigad, Alibag passed
impugned orders on 19.11.2009. By the said impugned orders, the
services of all the Petitioners were terminated on the ground that the
Government Resolution contemplated preparation of the select list
for the appointment of Shikshan Sevaks and the waiting list, approval
of such select list and waiting list of the Shikshan Sevaks and
appointments of all the Shikshan Sevaks in the vacancies created in
a particular year only from the select list prepared for that year. The
impugned orders further proceed on the basis that while making the
appointment, the select list will remain valid only for that particular
year. The impugned orders further provide that while making
appointments of Shikshan Sevaks, before issuing appointment orders,
an office note has to be prepared and after the Selection Committee
finalizes the list, thereafter with the approval of the Secretary to the
Shikshan Sevak Samiti, who is Education Officer (Primary), the Chief
Executive Officer, who is the Ex-Official Chairman of Shikshan Sevak
Samiti can sign appointment order. This reason is given in the first
six orders. In the 7th order which is challenged in the Writ Petition No.
8622/2011, this reason is not given. The common reason in the
impugned orders is to the effect that though the name of the
Petitioner was not appearing in the select list for the year, 2006 they
had been illegally appointed. On that ground without issuing any
show cause notice, the services of the Petitioners were terminated by
the impugned orders dated 19.11.2011.
4 It needs to be stated here that all the Petitioners had
challenged the orders of termination by filing Appeals and all the
Appeals were allowed by setting aside the Orders of termination and
passing order of reinstatement. All these orders were challenged by
filing Writ Petitions in this Court by the Chief Executive Officer, Zilla
Parishad Raigad, Alibag and others. By order dated 20th September,
2011 passed by the learned single Judge (Coram: Ranjit More, J. )
all the Writ Petitions were allowed with the following order :
"1 Heard learned counsel for the respective parties.
2 All these petitions involve common question and, are,
therefore,being disposed of together.
3. The Zilla Parishad, Raigad by filing the aforesaid writ
petitions challenges the common order dated 11.3.2011
passed by One Man Grievance Committee (for short
"Grievance Committee") constituted for entertaining
complaints of Shikshan Sevaks. By the said order, the action
on the part of Zilla Parishad Raigad, terminating service of
Respondent No. 1, in each of the aforesaid writ petitions,
was quashed and set aside and Respondent No.1 directed to
be reinstated as an Assistant Teacher forthwith with
continuity of service.
4. Mr Gavnekar, learned counsel for the petitioners relies
upon the Apex Court judgment in the case of the Secretary
Vs. Shivaji Bhagwat More & Ors in Civil Appeal No.
4988/2011. By the said judgment, the Apex Court was
pleased to hold that the State Government by executive fiat
or the High Court under Article 226 of the Constitution
cannot constitute Quasi Judicial Tribunal. The Apex Court
also held that the decision of the Grievance Committee is not
enforceable or executable, however, same is in the nature of
recommendation, that can be made the basis by the
Education Department, to issue appropriate directions, in
accordance with law. In short, the Apex Court held that the
Grievance Committee constituted under the Shikshan Sevaks
Scheme cannot order reinstatement of a Shikshan Sevak.
Faced with this difficulty, Mr Mangle, agrees for setting
aside the impugned order. However, he submits that liberty
may be granted to respondent No.1 to challenge the order of
termination by filing a proceeding before appropriate
Forum. Mr Gavnekar, learned counsel for the petitioners has
no objection, if this liberty is granted to respondent No.1.
In the above circumstances, petition is disposed of by
passing the following order:-
ORDER.
(1) Impugned order passed by One Man Grievance
Committee dated 14.6.2011 is quashed and set
aside.
(2) Respondent No.1 is at liberty to file proceedings,
before appropriate forum, challenging the
impugned order of termination. In the event, such
proceedings are filed within a period of four weeks
from today, the petitioners shall not oppose the
same on the ground of limitation.
(3) It is made clear that I have not gone into the
merits of the case and all points and contentions
of the respective parties with regard to the
termination order, are kept expressly open.
(RANJIT MORE, J.)"
5 In view this, the present Writ Petitions have been filed for
challenging the orders of termination. Affidavit-in-Reply has been
filed in the first six Writ Petitions and Mr. Gavnekar states that the
same may be considered to be adopted as an Affidavit-in-Reply in
the 7th Writ Petition. The Affidavits reiterate that the Petitioners were
not included in the select list of Shikshan Sevaks for the year 2006
and only on that ground their services were terminated. The fact that
no show cause notice was given to the Petitioners before termination
of their services is not disputed in the Affidavit.
6 Mr. Mangle, the learned Advocate for the Petitioners in the first
six Petitions has rightly relied upon the Judgment of the Supreme
Court between Basudeo Tiwary and Sido Kanhu University & Ors.,
reported in 1999 (LLJ) Supreme Court of India 214.1 Mr. Mangle and
Mr. Dhakephalkar submitted that the impugned orders of termination
of services of the Petitioners were passed in complete violation of
principles of natural justice as no show cause notice was served nor
any enquiry was conducted prior to the termination, giving any
opportunity to the Petitioners to meet the case which was sought to
be put up against them. They have advanced various other
submissions even on the merits of the controversy. However, since I
am inclined to accept the first submission regarding violation of
Rules of natural justice, it is not necessary to deal with other
submissions at this stage.
7 Mr. Gavnekar did not dispute the factual position that no
notice was served on the Petitioners. He, however, relied on the
Affidavit-in-Reply and contended that since the names of the
Petitioners, according to the Respondents Z.P., were not in the select
list of the year 2006, their appointments had been wrongly and
fraudulently made and therefore, they did not have any right to the
post.
1 1999 (LLJ) Supreme Court of India 214.
8 Mr. Gavnekar also contended that the Petitioners have
alternate efficacious remedy under the provisions of the Maharashtra
Zilla Parishad and Panchayat Samaties Act, 1961.
9 In so far as the submission of Mr. Gavnekar regarding existence
of the alternate remedy is concerned it is settled principal of law that
if an order is passed in clear violation of the rules of natural justice,
existence of the alternate remedy is normally not treated as a bar to
exercise of the Jurisdiction under the Constitution of India. Hence,
objection regarding alternate remedy will have to be overruled.
10 I have considered the rival submissions and as stated above, I
am inclined to allow all the Writ Petitions purely on the ground that
the impugned orders have passed by breaching the rules of natural
justice. The ratio of the Judgment of the Supreme Court in the case
of Basudeo Tiwary (supra) is clearly applicable to the facts of this
case. I deem it necessary to reproduce paragraphs 8 to 13 of the said
Judgment which read thus :
"8. Several contentions have been addressed by
learned counsel on either side. However, for the purpose of
disposal of this appeal, it is suffice to consider only one
aspect of the matter and that is, whether the appellant had
been given an opportunity of being heard before
terminating his services and in the absence of the
same whether such termination is valid. The High
Court took the view that the appointment of the appellant
made by the Syndicate of the University by its
resolution dated January 24, 1986 is illegal and on that
basis took the view that the termination of the
services was in order but did not examine the aspect with
which we are concerned in the present case as to
the non-observance of rule of Audi Alteram Partem.
9. The law is settled that non-arbitrariness is an
essential facet of Article 14 pervading the entire realm of
State action governed by Article 14. It has come to
be established, as a further corollary, that the audi alteram
partem facet of natural justice is also a requirement
of Article 14, for, natural justice is the antithesis of
arbitrariness. In the sphere of public employment, it
is well settled that any action taken by the employer
against an employee must be fair, just and reasonable
which are components of fair treatment. The conferment
of absolute power to terminate the services of an
employee is antithesis to fair, just and reasonable
treatment. This aspect was exhaustively considered by a
Constitution Bench of this Court in Delhi Transport
Corporation vs. D.T.C. Mazdoor Congress reported in
(1991-I-LLJ-395).
10. In order to impose procedural safeguards, this
Court has read the requirement of natural justice in many
situations when the statute is silent on this point. The
approach of this Court in this regard is that omission to
impose the hearing requirement in the statute under which
the impugned action is being taken does not exclude
hearing - it may be implied from the nature of the
power - particularly when the right of a party is
affected adversely. The justification for reading such a
requirement is that the Court merely supplies
omission of the legislature. (Vide Mohinder Singh Gill &
Anr. vs. The Chief Election Commissioner & Ors. AIR
1978 SC 851) and except in case of direct legislative
negation or implied exclusion. (vide S.L. Kapoor vs.
Jagmohan & Ors. AIR 1981 SC 136).
11. In the light of these principles of law, we have to
examine the scope of provision of Section 35(3) which
reads as follows :-
"35(3) Any appointment or promotion made
contrary to the provisions of the Act,
Statutes,Rules or Regulations or in any irregular or
unauthorised manner shall be terminated at
any time without notice.
12. The said provision provides that an appointment
could be terminated at any time without notice if the same
had been made contrary to the provisions of the
Act, Statutes, Rules or Regulations or in any
irregular or unauthorised manner. The condition
precedent for exercise of this power is that an appointment
had been made contrary to Act, Rules, Statutes and
Regulations or otherwise. In order to arrive at a
conclusion that an appointment is contrary to the
provisions of the Act, statutes, rules or regulations etc. a
finding has to be recorded and unless such a finding is
recorded, the termination cannot be made, but to arrive
at such a conclusion necessarily an enquiry will have
to be made as to whether such appointment was
contrary to the provisions of the Act etc. If in a given case
such exercise is absent, the condition precedent stands
unfulfilled. To arrive at such a finding necessarily enquiry
will have to be held and in holding such an enquiry
notice to the person whose appointment is under enquiry
will have to be issued to him. If notice is not given to him
then it is like playing Hamlet without the Prince of
Denmark, that is, if the employee concerned whose rights
are affected, is not given notice of such a proceeding and
a conclusion is drawn in his absence, such a conclusion
would not be just, fair or reasonable as noticed by this
Court in D.T.C. Mazdoor Sabha's (supra) case. In such an
event, we have to hold that in the provision there
is an implied requirement of hearing for the purpose of
arriving at a conclusion that an appointment had been
made contrary to the Act, statute, rule or regulation etc.
and it is only on such a conclusion being drawn, the
services of the person could be terminated without
further notice. That is how Section 35(3) in this case will
have to be read.
13. Admittedly in this case notice has not been given to
the appellant before holding that his
appointment is irregular or unauthorised and ordering
termination of his service. Hence the impugned order
terminating the services of the appellant cannot be
sustained."
11 Thus all these Petitions deserve to succeed only on the ground
of failure to follow rules of natural justice. While setting aside the
impugned orders, it will have to be made clear that this order does not
preclude the Respondents from taking appropriate disciplinary action
by issuing the show cause notice and then take action in accordance
with the law with regard to the service of the Petitioners.
12 Hence, I pass following order:
i. The impugned orders dated 19.11.2009 passed in this
Writ Petitions thereby terminating the services of the
Petitioners are quashed and set aside only on the ground
that the said orders had been passed in breach of the
Rules of natural justice viz. without affording any
opportunity of being heard to the Petitioners.
ii. All the Petitioners will be reinstated with all consequential
reliefs like back wages etc.; with permanency in the
employment on completion of the probation period. It is
made clear that all the Petitioners will be deemed to be in
service for that purpose.
iii. Needless to state that this order does not preclude the right
of the Respondent- Z.P. to initiate appropriate disciplinary
proceedings or other proceedings as may be permissible
in law to take action against the Petitioners for the
alleged illegal/ irregular appointments of the Petitioners.
All contentions of the Petitioners and Respondents raised
in that regard are expressly kept open.
iv. Rule in all the Writ Petitions is made absolute in
the aforesaid terms with no orders as to costs.
(G.S.GODBOLE,J.)
