Bombay High Court
Smt. Mohinibai Badriprasad ... vs Gokul Pitambar Patil And Another on 18 August, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6043 OF 2014
1 Smt.Mohinibai Badriprasad Agrawal Shikshan
Prasarak Mandal, Nandurbar,
Office : Shivaji Road, Kasar Galli,
Nandurbar, District Nandurbar.
Through its President.
2 The Incharge Head Master,
Mahatma Jyotiba Fule Secondary School,
Lahan Kadwan, Tq.Nawapur,
District Nandurbar.
...PETITIONERS
-VERSU-
1 Shri Gokul s/o Pitambar Patil,
Age : 46 years, Occupation : Service,
R/o Near Santoshi Mata Mandir,
Visarwadi, Tq.Navapur,
District Nandurbar.
2 The Education Officer (Secondary),
Zilla Parishad, Nandurbar,
District Nandurbar.
...RESPONDENTS
...
Advocate for Petitioners : Shri Bagul D.S. and Shri G.D.Jain.
Advocate for Respondent 1 : Shri S P Brahme.
AGP for Respondent 2 : Shri P.N.Kutti.
...
CORAM: RAVINDRA V. GHUGE, J.
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DATE :- 18th August, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 On 16.08.2016, after extensively hearing the learned
Advocates for the respective sides and considering the request of the
learned Advocates, I have passed the following order:-
"1. I have heard the learned Advocates for the respective
sides at length on 27/07/2016, 11/08/2016 and
again today.
2. After the conclusion of their submissions and before I
could begin the dictation of the judgment, I intimated
to the litigating sides that the right of the
Management to conduct an enquiry would be
sustained subject to placing the respondent/ employee
under suspension from the date of alleged oral
termination 21/06/2010 and on payment of
subsistence allowance as per rules, keeping in view
the observations of the Hon'ble Supreme Court in
paragraph Nos.8 and 9 of Vidya Vikas Mandal & Anr
vs The Education Officer & Another, 2007(3) Mh.L.J.
801 = 2007(11) SCC 352.
3. Mr.Brahme submitted on instructions that even now
the respondent is willing to waive all back wages on
the condition that he would be given continuity of
service and there shall be no disciplinary proceedings
by digging up the old charges.
4. Mr.Bagul submits that he would take instructions
from the petitioners President and Secretary and
make a statement on 18/08/2016.
5. Considering the above, stand over to 18/08/2016. It
is made clear that there shall be no further
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submissions addressed to the Court."
3 It is informed by Shri Bagul that the Petitioners are not in a
position to make any statement and as such, this petition be considered on
it's own merits.
4 The submissions of Shri Bagul can be summarized as follows:-
(a) The Respondent No.1 / Employee was appointed as an
Assistant Teacher with Petitioner No.2/ Institution on
01.06.1999.
(b) The said Institution was without any grants from the State
Government.
(c) On 31.08.2002, the Education Officer granted approval to the
services of the Respondent/ Employee.
(d) The Employee was absent from 26.03.2010.
(e) The first notice regarding unauthorized absenteeism was
issued on 17.04.2010.
(f) The Employee appeared before the Management on
21.04.2010 and stated that he was suffering from fever and
could not report for duties.
(g) The second notice was issued on 23.04.2010 which was
replied to by the Employee on 27.04.2010.
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(h) The Employee submitted a detailed reply on 29.04.2010.
(i) The third, fourth and fifth notices dated 01.05.2010,
06.05.2010 and 15.05.2010 issued to the Employee were not
replied to.
(j) The Employee preferred Appeal No.15/2012 before the
School Tribunal alleging oral termination on 21.06.2010.
(k) The Petitioners filed their Written Statement in the appeal
and specifically contended that there was no oral termination
at the hands of the Management, the Employee is not
punished with dismissal from service, he is remaining
unauthorizedly absent, he has committed several misconducts
of grave and serious nature and therefore, is not reporting for
duties for the fear of suffering disciplinary proceedings and
the appeal is misconceived.
(l) By judgment and order dated 16.08.2013, the School Tribunal
has erroneously come to the conclusion that the Petitioners
have orally terminated the services of the Employee on
21.06.2010.
(m) The School Tribunal has erroneously granted reinstatement
with continuity and full back-wages to the Employee.
(n) When there was no termination at all in the eyes of law, there
is no question of allowing the appeal and granting any relief
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pursuant to the setting aside of the purported termination.
5 Shri Brahme, learned Advocate appearing on behalf of the
Respondent/ Employee, submits as under:-
(a) The Employee, after having been appointed as an Assistant
Teacher on 01.06.1999, was promoted as Headmaster on
01.06.2004.
(b) He has not committed any misconduct and merely because he
was absent for some period due to illness, the Petitioners felt
antagonized and therefore, have restrained him from
reporting for duties.
(c) The Employee desperately tried to report for duties, but in
vain.
(d) Finally, upon being convinced that the Management is
intentionally restraining the Employee from reporting for
duties on 21.06.2010, he preferred his appeal alleging oral
termination.
(e) The appeal was filed on 25.08.2011 since the Employee was
pursuing the Management to withdraw from their acts of
restraining him from reporting for duties and upon failing to
convince the Management, he finally approached the School
Tribunal.
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6 Having considered the submissions of the learned Advocates
for the respective sides, it is apparent in this case that the contention of
the Management that the Employee is himself not remaining present on
duties, is pitted against the statement of the Employee that the
Management is restraining him from reporting for duties. It is word
against word.
In the Written Statement filed before the School Tribunal,
though the Management contends that the Employee himself is not
reporting for duties and is unauthorizedly absent, the Management,
besides merely issuing notices to the Employee, did not exercise it's right
as an Employer to initiate disciplinary proceedings regarding the charge of
unauthorized absenteeism against the Employee. On the one hand, the
Management contends that the Employee was unauthorizedly absent and
on the other hand, the Management, for reasons best known to it, has not
initiated any disciplinary proceedings. It also appears from the Written
Statement that the Management has taken a stand that the Employee has
committed grave and serious misconducts and in order to avoid the
disciplinary proceedings, he is not remaining present.
8 During the course of his submissions, Shri Bagul submits, on
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instructions from the Petitioners, that they could not initiate the
disciplinary proceedings against the Employee because he was not
available and was not reporting for duties. I find such contention to be a
lame excuse. It cannot be accepted that the Management is not aware of
the law especially the MEPS Act, 1977 and the MEPS Rules, 1981. Rule
16(3) of the MEPS Rules, 1981 clearly provides that if a permanent
employee is remaining unauthorizedly absent, the Management will have
to initiate proceedings against him. The other option available under the
MEPS Rules, 1981 is that the Management will have to wait for a period
of three years, during which the permanent employee is unauthorizedly
absent continuously, so as to draw a conclusion that the permanent
employee has abandoned employment. It is beyond comprehension that
the Management issued five notices in a period of four weeks from
17.04.2010 till 15.05.2010 alleging that the Employee is unauthorizedly
absent, but refrained from initiating the disciplinary proceedings.
9 I also do not find any statement in the Written Statement filed
by the Management before the School Tribunal that since the Respondent/
Employee is not terminated, he may report for duties subject to the
Management exercising it's right to initiate disciplinary proceeding against
him.
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10 In contra distinction, the Respondent/ Employee alleged oral
termination from 21.06.2010. After having received the Written Statement
from the Management in the appeal before the School Tribunal, it was
open for the Employee to immediately make a claim before the School
Tribunal through an application seeking leave to report for duties. I do not
find any such application having been filed. As such, it appears that both
the sides have merely taken the stands contradictory to each other and
yet, neither the Management made an offer to allow the Employee to
report for duties, nor has the Employee put forth a request for joining
duties during the pendency of the proceedings before the School Tribunal.
11 It emerges from the record and especially from the
contentions of the Management that the Employee has been remaining
unauthorizedly absent and has committed several misconducts which are
of grave and serious nature. All these misconducts apparently are
preceding the purported date of oral termination which is 21.06.2010.
12 In the peculiar facts of this case, I am of the view that though
on the one hand, the right of the Management to initiate the disciplinary
proceedings cannot be curbed or curtailed and on the other hand, in the
light of the contentious issue regarding unauthorized absenteeism, it
would not be fair to direct reinstatement of the Employee, lest it would
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amount to prejudging the matter and concluding that there was no
unauthorized absenteeism on the part of the Employee.
13 I am arriving at this conclusion in the peculiar facts of this
case and particularly in the light of paragraphs 8 and 9 of the judgment of
the Honourable Supreme Court in Vidya Vikas Mandal (supra), which read
thus:-
"8. As rightly pointed out by the learned counsel for the
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
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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
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."
14 Shri Bagul strenuously submits that as the Employee was
never terminated, there can be no presumption that he should be placed
under suspension from the date of termination which is 21.06.2010. He
submits that since there was no termination at all, the issue of
unauthorized absenteeism will have to be kept open to be considered in
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the disciplinary proceedings. The Management is willing to place the
Respondent/ Employee under suspension forthwith by seeking permission
under Rule 35 of the MEPS Rules, 1981 from the Education Officer and is
willing to initiate the disciplinary proceedings under Rules 36 and 37.
15 Shri Brahme has relied upon the judgment of this Court in the
matter of Madhukar Namdeo Patil vs. The Chairman, Sudhagad Education
Society, 2000(4) Mh.L.J. 206, contending that no Rule under the MEPS
Rules, 1981 contemplates automatic suspension. He further submits that
Section 4(6) of the MEPS Act, 1977 has been dealt with by this Court in
Madhukar Namdeo Patil judgment (supra) by which no employee can be
suspended, dismissed, removed or his services cannot be otherwise
terminated except in accordance with the provisions of the MEPS Act,
1977 and the Rules made thereunder. Considering the facts in the said
case, I do not find that said judgment is applicable to this case.
16 If I am to accept the submissions of Shri Brahme, the
Respondent/ Employee will have to be granted reinstatement
prospectively since the issues as to whether, he was unauthorizedly absent
or he was attempting to report for duties and the Management
purportedly restrained him, are to be gone into. Such contentious issues
cannot be considered by this Court in it's writ jurisdiction. Unless this
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allegation of unauthorized absenteeism is not properly gone into by the
Enquiry Committee under Rules 36 and 37 of the MEPS Rules, 1981, there
cannot be any conclusion as to which of the sides is narrating the truth.
17 The submissions of Shri Brahme cannot be accepted even for
the reason that granting reinstatement from the purported date of
termination which is 21.06.2010 in the face of the Management
contending that the Employee was never terminated, would amount to
presuming falsehood on the part of the Management/ Employer. If the
Employee was sure of having been restrained from joining duties, he
would have filed an application before the School Tribunal upon receipt of
the Written Statement so as to seek permission to report for duties
forthwith. Failure to do so and failure to seek any order from the School
Tribunal for joining duties in the face of the contentions of the
Management in the Written Statement that the Employee had never been
terminated, cannot be countenanced and at the same time, the Employee
cannot be rewarded with back-wages.
18 In my view, upon considering the ratio laid down by the
Honourable Supreme Court in paragraphs 8 and 9 of Vidya Vikas Mandal
(supra) reproduced above, it appears to be equitable to keep the
Respondent/ Employee under suspension so as to ensure that the
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Management/ Employer follows the due procedure of law in conducting a
proper enquiry.
19 The School Tribunal has arrived at a conclusion that there
was oral termination from 21.06.2010. Considering the said date as being
the date from which the rival contentions of the parties originate, I deem
it proper to direct the reinstatement of the Respondent/ Employee from
21.06.2010 and to be treated as being under suspension subject to
payment of suspension allowance strictly in accordance with Rule 35 of
the MEPS Rules, 1981. In doing so, ends of justice would be met meaning
thereby, on the one hand, the right of the Management to initiate the
disciplinary proceedings would not be taken away and on the other hand,
the contention of the Employee that he was not unauthorizedly absent,
but was orally terminated from 21.06.2010, would be gone into by the
Enquiry Committee under Rules 36 and 37.
20 In the light of the above, this Writ Petition is partly allowed
and the impugned judgment of the School Tribunal to the extent of
directing grant of back-wages is set aside. The Petitioner/ Management
shall treat the Respondent/ Employee to be under suspension w.e.f.
21.06.2010 and shall initiate the disciplinary proceedings under Rules 35
and 36 of the MEPS Rules, 1981 under the following conditions:-
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(a) The Petitioner/ Management shall pay the subsistence
allowance to the Respondent/ Employee as per the MEPS
Rules, 1981 from 21.06.2010, within a period of SIX WEEKS
from today and shall continue to pay his subsistence
allowance until the enquiry proceedings culminate into a final
order as per law.
(b) The Petitioner/ Management shall follow Rules 36 and 37 of
the MEPS Rules, 1981 and shall initiate the disciplinary
proceedings within a period of SIX WEEKS from today, if it so
desires, failing which it shall be presumed that the Petitioner/
Management does not desire to initiate the disciplinary
proceedings and after passage of six weeks as directed above,
the Respondent/ Employee will then be treated as being
entitled to full wages w.e.f. 21.06.2010.
(c) Since this Court is relying upon paragraph 9 of the Vidya
Vikas Mandal judgment (supra), the concerned Education
Officer shall pass necessary orders according permission for
suspension of the Respondent/ Employee w.e.f. 21.06.2010.
(d) In the event, considering that the Petitioner / Management is
receiving 20% grant-in-aid from the Government and the
suspension allowance is to be paid from the said grants, the
Education Officer shall, accordingly, take a decision strictly in
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accordance with the law applicable.
(e) The issue of unauthorized absenteeism and any other
misconduct as is alleged by the Petitioner/ Management in
the Written Statement filed before the School Tribunal, shall
be subject to the result of the disciplinary proceedings.
(f) The disciplinary proceedings/ departmental enquiry, if any
initiated, shall be completed in accordance with the time
frame as is prescribed under the MEPS Rules, 1981.
21 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
