Bombay High Court

Pitambar Sitaram Ingle vs The President, Dr. Babasaheb ... on 25 April, 2016

Bench: R.V. Ghuge

                                              1




                                                                                
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                          BENCH AT AURANGABAD




                                                        
                            WRIT PETITION NO.8063 OF 2013

    Pitambar S/o Sitaram Ingle,
    Age-39 years, Occu-Service,




                                                       
    R/o At N-9, K-34/5,
    Pawan Nagar, HUDCO,
    Tq. and Dist. Aurangabad
                                                                    PETITIONER




                                             
    VERSUS 

    1. The President,
                               
        Dr.Babasaheb Ambedkar Smarak Samiti,
                              
        Fulle Nagar, Peer Bazar,
        Tq. and Dist.Aurangabad,

    2. The Head Mistress,
        Nagsen Madhyamik Vidyalaya,
      

        Fulle Nagar, Peer Bazar,
        Tq. and Dist. Aurangabad,
   



    3. The Education Officer,
        (Secondary),
        Zilla Parishad,                                             RESPONDENTS

Tq. and Dist.Aurangabad

Mr.S.R.Kolhare, Advocate for the petitioner. Mr.V.D.Gunale, Advocate for respondent Nos. 1 and 2. Mr.A.P.Basarkar, AGP for respondent No.3.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 25/04/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

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consent of the parties.

2. I have heard the learned Advocates for the respective sides at

length.

3. The issue raised is with regard to the impugned judgment of

the School Tribunal, Aurangabad. Appeal No.22/2012 has been

dismissed by the impugned judgment dated 07/12/2012 primarily on

the ground that the petitioner's appointment does not appear to be in

consonance with the procedure laid down in Law and therefore his

appeal deserves to be dismissed in the light of the judgment delivered

by this Court in the matter of Anna Manikrao Pethe Vs. The

Presiding Officer, School Tribunal and others, 1997 (3) Mh.L.J. 697.

4. Learned Advocate for the petitioner points out the

advertisement dated 30/05/1998 published in "Dainik Lokmat",

typed copy of which is at page Nos.39 and 39-A. The Staffing Pattern

issued by the Education Officer (Secondary) dated 23/07/1999

indicates that there were 4 posts of Peons available with the

respondent School for the academic year 1998-1999 and 1999-2000.

Pursuant to the advertisement, the petitioner was appointed as a

Peon for one academic year. On 08/06/2001, the Management

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passed a resolution to grant permanency to the petitioner. Proposal

was forwarded for approval by the Management. By order dated

11/06/2009, as per Schedule D, under Rule 9(5) of the M.E.P.S.

Rules, the petitioner was confirmed in service.

5. A proposal was forwarded by the Management on 23/08/2001

seeking continuation of the petitioner. Prior thereto, by an order

dated 22/10/1999, the Education Officer had granted approval to the

service of the petitioner from 12/06/1999 for a period of 2 years prior

to he being confirmed in employment on 23/08/2001.

6. Mr.Kolhare, learned Advocate for the petitioner/employee

submits that despite the above, the School Tribunal has concluded

that the service of the petitioner is not in accordance with the

procedure. He further submits that the Tribunal has come to a

conclusion that as the petitioner was absent from 19/11/2006, there

is no termination and hence the appeal lacks cause of action.

7. The petitioner submits that he was orally terminated on

11/06/2008 after having put in 9 years in employment. The Tribunal

has lost sight of this fact and has merely placed reliance upon the

judgment in the Anna Pethe case (supra) and mis-directed itself. He

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submits that the petitioner is willing to face a departmental enquiry

as per the MEPS Rules and he can establish that he was not absent

but was terminated from employment.

8. Mr.Gunale, learned Advocate appearing on behalf of the

Management contends that the petitioner had developed a habit of

reporting for duties in a drunken state. Several complaints were

lodged by teachers and students. He was unauthorizedly absent from

19/02/2006 till 20/01/2007, from 22/06/2007 to 18/11/2007 and

then has been continuously absent from 23/05/2008 till he

preferred his appeal on 14/09/2009.

9. Mr.Gunale further submits that the Management is willing to

conduct a Departmental Enquiry against the petitioner for his

unauthorized absenteeism as it has not terminated his services.

However, there is no vacancy since the posts of Peon have been

reduced and the respondent cannot reinstate him today.

10. I find from the record before the Court that the petitioner was

appointed pursuant to an advertisement and has been granted

permanency and regularization. His service has been approved. I

do not find any reason for which the School Tribunal should have

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opened the issue as to whether the petitioner was properly appointed

or not, in the face of the fact that the Management had taken a stand

that he was unauthorizedly absent and wanted to avoid disciplinary

proceeding. The documents placed on record, though were not cited

before the Tribunal, are indicative of the fact that a procedure was

followed by the Management in appointing the petitioner pursuant to

an advertisement and he was granted permanent approval by the

Education Officer which has not been questioned by the

Management. For this reason, the order of the Tribunal dismissing

the appeal deserves to be quashed and set aside.

11.. It, therefore,emerges that on the one hand, the petitioner

claims of oral termination and on the other hand, the Management

claims that he was remaining absent and there were complaints

about his drinking habits. Both the parties are aggreable for a

departmental enquiry so as to consider their rival claims and let the

Enquiry Committee decide the truthfulness in the claims put forth.

12. The Hon'ble Supreme Court in the matter of Vidya Vikas

Mandal and another Vs. Education Officer, 2007(3) Mh.L.J. 801 has

held in paragraph No.8 and 9 as under :-

"8. As rightly pointed out by the learned counsel for the

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appellants, Rule 37 (6), which is mandatory in nature, has not been strictly complied with. The Inquiry Committee comprising of

three members, as already noticed, only one member nominated by the Management has submitted his Inquiry report within the time stipulated as per Rule 37 (6) and admittedly, the other two

members nominated by the employee and an independent member have not submitted their report within the time prescribed under Rule 37 (6). However, the learned Judges of the

Division Bench, though noticed that the two members out of three

found the employee not guilty, failed to appreciate that the said findings by the two members of the committee were submitted

after the expiry of the period prescribed under Rule 37(6). In our opinion, the report submitted by individual members is also not in accordance with the Rules. When the Committee of three

members are appointed to inquire into a particular matter, all the

three should submit their combined report whether consenting or otherwise. Since the report is not in accordance with the mandatory provisions, the Tribunal and the learned Single

Judge and also the Division Bench of the High Court have committed a serious error in accepting the said report and acted on it and thereby ordering the reinstatement with back wages. Since the reinstatement and back wages now ordered are quite

contrary to the mandatory provisions of Rule 37 (6), we have no hesitation in setting aside the order passed by the Tribunal, and learned Single Judge and also of the Division Bench of the High Court. In addition, we also set aside the order passed by the Management based on the report submitted by the single member of the Committee, which is also quite contrary to the

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Rules.

9. In view of the order now passed by this Court, the Rule 36(2)

(a) is now to be invoked and as per the said Rule, one member from amongst the members of the Management is to be nominated by the Management or by the President of the

Management if so authorised by the Management, and one member is to be nominated from amongst the employees of any private school and the third member to be chosen by the Chief

Executive Officer from the panel of teachers on whom

State/National Award has been conferred. We direct the Management of the School to constitute the Committee in

accordance with sub-Rules (i) (ii) & (iii) of Rule 36(2)(a) to go into the matter afresh. The respondent no.2, the employee, will be now treated under suspension and he will be entitled to the

subsistence allowance as per rules with effect from the date of

termination of his services. The inquiry shall be completed by the Committee within a period of six months from the date of their nomination/constitution."

13. In the light of the above, the impugned judgment of the School

Tribunal is quashed and set aside. I do not find any purpose in

remitting the appeal back to the School Tribunal. The issue with

regard to whether the petitioner was absent or whether the

Management prevented the petitioner from reporting for duties could

be more advantageously considered by the Enquiry Committee.

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14. In the light of the above and considering the ratio laid down by

the Hon'ble Supreme Court in Vidya Vikas Mandal judgment (supra),

the petitioner shall be treated as being placed under suspension by

the respondent from the date of this order and shall pay the

petitioner suspension allowance on monthly basis as per rules. An