Bombay High Court
Janshakti Shikshan ... vs Ku.Karuna Baburao ... on 22 August, 2016
Bench: V.A. Naik
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1902/1999
Janshakti Shikshan Sanstha, Pandharkawada, Distt. Yavatmal through its
Secretary and another
...Versus...
Kum. Karuna Baburao Patil alias Smt. Karuna w/o Govindrao Kale and others
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri A.M. Gordey, Sr. Adv. with Mrs. R.D. Raskar, Adv. for petitioners
Shri H.A. Deshpande, Advocate for respondent no.1
CORAM : SMT. VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
DATE : 22.08.2016
Whether an appeal under Section 59 of the
Maharashtra Universities Act, 1994 (hereinafter referred to the
Act for the sake of brevity) could be filed by an employee against
an order of termination before the date on which the termination
is to take effect, is the question that is required to be answered by
this Division Bench.
Though a writ petition challenging the order of the
University and College Tribunal in an appeal under Section 59 of
the Act needs to be placed before the learned Single Judge for
hearing in view of the Bombay High Court Appellate Side Rules,
the occasion for placing this matter before the Division Bench is
referable to the order of the learned Single Judge, dated
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22.8.2000. After disagreeing with the view expressed by the
learned Single Judge of this Court, in the judgment, reported in
1998 (1) Mh.L.J. page 707, the learned Single Judge hearing
this petition on 22.8.2000 requested the Hon'ble, the Chief
Justice, that the matter should be placed before the Division
Bench for deciding whether an appeal under Section 59 of the Act
could be filed against the order of termination, dismissal or
removal though the termination is to take effect on a date,
subsequent to the date of filing of the appeal.
ig The petitioner - Management had by the order, dated
25.1.1999 terminated the services of the respondent w.e.f.
30.4.1999, that is, after the completion of the notice period. On
the receipt of the said order, dated 25.1.1999, the respondent
filed an appeal before the University and College Tribunal on
6.2.1999. The appeal filed by the respondent was allowed by the
Tribunal, by the judgment, dated 7.5.1999. The said judgment is
challenged by the petitioner - Management in this writ petition.
When this matter came up for admission and hearing before the
learned Single Judge of this Court on 22.8.2000, a submission
was made on behalf of the petitioner - Management by placing
reliance on a judgment of another learned Single Judge, reported
in 1998 (1) Mh.L.J. 707 that the Tribunal had no jurisdiction to
entertain the appeal filed by the respondent, as in view of the
provisions of Section 59 (1) of the Act, an appeal could have
been filed only by an employee, who is dismissed, terminated or
removed. It was canvassed before the learned Single Judge on
22.8.2000 that the respondent's services were not terminated on
the date of filing the appeal, i.e., on 6.2.1999, as by the order
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dated 25.1.1999, the termination was to take effect only on
30.4.1999. The learned Single Judge, however, on a reading of
the provisions of Section 59 (2) of the Act, disagreed with the
view expressed by the learned Single Judge in the judgment,
reported in 1998 (1) Mh.L.J. 707 as in the view of the learned
Single Judge that was hearing this writ petition, if the respondent
would have waited for his termination to take effect on
30.4.1999, he would have run the risk of filing the appeal beyond
the period of limitation. In view of the divergence in the views of
the two learned Single Judges, the learned Single Judge hearing
this writ petition on 22.8.2000 requested the Hon'ble, the Chief
Justice to place the matter before the Division Bench for
appropriate orders. In pursuance of the said order, dated
22.8.2000, the Hon'ble, the Chief Justice had directed the
placement of this writ petition before the Division Bench.
However, neither the learned Single Judge hearing the writ
petition on 22.8.2000 nor the Hon'ble, the Chief Justice have
framed the question for reference. Though the question is not
framed, it is clear that the question that arises for consideration in
the matter placed before us is, whether an employee is entitled to
file the appeal against the order of termination though the actual
termination is to take effect later, that is, after the filing of the
appeal.
Shri Gordey, the learned Senior Counsel appearing
for the petitioner - Society relied on the judgment of the learned
Single Judge, reported in 1998 (1) Mh.L.J. 707 to submit that a
Tribunal, constituted under the Maharashtra Universities Act, has
no jurisdiction to decide the case of threatened dismissal or
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termination of an employee. It is submitted that a right of appeal
is available to an employee only after he/she is dismissed,
removed or otherwise terminated. It is submitted that the view
expressed by the learned Single Judge in the judgment, reported
in 1998 (1) Mh.L.J. 707 reflects the correct position of law and
this Court may hold that in the circumstances of the case, the
right of appeal would not be available. It is, however, fairly stated
that while expressing the aforesaid view in the judgment,
reported in 1998 (1) Mh.L.J. 707, the learned Single Judge had
not considered the provisions of Section 59 of the Act in the
entirety and the provisions of Sub Section 2 of Section 59 of the
Act were not considered.
Shri Deshpande, the learned Counsel for the
respondent submitted that the view expressed by the learned
Single Judge while recording the order of disagreement, dated
22.8.2000 would be the expression of the correct position of law.
It is submitted that on a combined reading of the provisions of
Section 59 (1) and (2) and Section 60 of the Act, it is clear that
an employee would have a right to file an appeal after he/she
receives the order of termination or dismissal and the fact that the
termination would take effect on a subsequent date would not
disentitle the employee to file the appeal. It is submitted that in
any case, the defect, if any, in filing the appeal before the date on
which the actual termination takes effect would stand cured by
the pendency of the appeal, till the date on which the termination
takes effect. It is submitted that in the judgment, reported in
1998 (1) Mh.L.J. page 707, the Hon'ble Single Judge was
considering the question whether the Labour Court under the
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Maharashtra Recognition of Trade Unions and Prevention of
Unfair Labour Practices Act, 1971 could grant an interim relief in
an action initiated by an employee against an order of
termination that was to take effect on a subsequent date and the
question involved in this case did not fall for consideration in that
case.
For deciding the question that falls for consideration
in this case, it would be necessary to refer to the relevant
provisions of Section 59 of the Act. The relevant provisions of the
Act read thus :-
"Section 59 (1) Notwithstanding anything
contained in any law or contract for the time being in
force, any employee (whether a teacher or other
employee) in any university, college or recognized
institution (other than that managed and maintained
by the State Government, Central Government or a
local authority), who is dismissed or removed or
whose services are otherwise terminated or who is
reduced in rank by the university or management and
who is aggrieved, shall have a right of appeal and any
appeal against any such order (shall) lie to the
Tribunal :
Provided that, no such appeal shall
lie to the Tribunal in any case where the matter
has already been decided by a court or Tribunal
of competent jurisdiction or is pending before
such court or Tribunal on the date of
commencement of this Act or where the order of
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dismissal, removal, otherwise termination of
service or reduction in rank was passed by the
management at any time before the date on
which this Act comes into force and in which case
the period for filing an appeal has expired.
(2) Such appeal shall be made by the
employee to the Tribunal, within thirty days from the
date of receipt by him of the order of dismissal,
removal, otherwise termination of services, or
reduction in rank, as the case may be :
Provided that, where such order was
made before the date of commencement of this
Act, such appeal may be made if the period of
thirty days from the date of receipt of such order
has not expired."
On a reading of the provisions of Section 59 of the
Act, it is clear that an appeal could be filed by a teaching or a
non-teaching employee of any University, College or a recognized
Institution, who is dismissed or removed or whose services are
otherwise terminated. In this case the order of termination, dated
25.1.1999 is served on the respondent - employee by the
Management and the order recites that the services of the
respondent shall stand terminated w.e.f. 30.4.1999. It is apparent
on a reading of the said order that the services of the
respondent were terminated by the petitioner - Management by
the order, dated 25.1.1999 and only the termination was to take
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effect on a subsequent date, on the expiry of the notice period, on
30.4.1999. The services of the respondent stood terminated by
the order of termination, though the termination was to take
effect on a subsequent date. It is not the case of the petitioner -
Management that the services of the respondent were not
terminated by the order, dated 25.1.1999 and hence it cannot be
a case of threatened termination. On a reading of paragraph 6 of
the order of termination, it appears that by the said order, the
respondent was informed that his services would stand
terminated w.e.f. 30.4.1999. It would be necessary to hold that if
an order terminating the services of an employee is served on the
employee, the employee would have a right to file an appeal
against his termination, though the actual termination is to take
effect from a date, that is, subsequent to the order of termination.
The provisions of Sub Section 2 of Section 59 of the Act throw
some light on the question that falls for consideration before us. It
would be necessary to harmoniously read the provisions of Sub
Section 1 and 2 of Section 59 of the Act to give effect to the
provision in respect of the right to appeal. Sub Section 2 of
Section 59 of the Act refers to the presentation of the appeal by
an employee within 30 days from the date of receipt of the order
of termination, dismissal or removal and does not provide that
the appeal could be filed by an employee within 30 days from the
date of order of termination or the date on which the termination
takes effect. Sub Section 2 of Section 59 refers to the receipt of an
order of termination, dismissal or removal and does not refer to
the date on which the termination, removal or dismissal is to take
effect. Though the provisions of Sub Section 1 of Section 59 are
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clear, Sub Section 2 of Section 59 of the Act throw greater light
on the controversy for leading to a conclusion that an appeal
could be filed by an employee against the order of termination,
dismissal or removal, though the actual termination would take
effect on a date, subsequent to the filing of the appeal. Our view
could be further fortified by the provisions of Sub Section 1 of
Section 60 of the Act that refer to the powers of the Tribunal to
stay the effect, operation of any order against which an appeal is
made. ig After holding that an appeal could be filed by an
employee against the order of termination, dismissal or removal,
though the termination, dismissal or removal would take effect on
a date subsequent to the filing of the appeal, we direct the
Registry to place the matter before the learned Single Judge for
hearing the writ petition on merits.
JUDGE JUDGE
Wadkar
2208wp1902.99.odt
C E R T I F I C A T E
I certify that this order uploaded is a true and correct
copy of original signed order.
Uploaded by : S.S. Wadkar, P.S. Uploaded on : 26/08/2016
