Bombay High Court
Someshwar Gundappa Randave vs State Of Maharashtra & Others on 3 March, 2016
Bench: R.V. Ghuge
WP 2557/95
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2557/1995
Someshwar S/o Gundappa Randale,
Age 22 years, Occu.Service,
R/o Randale Niwas, Majage Nagar,
Latur, Dist. Latur.
...Petitioner...
Versus
ig 1 The State of Maharashtra.
2
Lal Bahadur Shastri Shikshan
Sanstha, Dattanagar, Latur.
Through its Secretary,
District Latur.
...Respondents...
.....
Shri B.M. Dhanure, Advocate for petitioner.
Shri V.G. Shelke, AGP for respondent no.1.
Shri V.G. Sakolkar, Advocate for respondent no.2.
.....
CORAM: RAVINDRA V. GHUGE, J.
DATE: 03.03.2016
ORAL JUDGMENT :
1] This petition was admitted by order dated
10.2.1998. No interim relief was granted to the
petitioner.
2] The petitioner was appointed by an order of
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appointment dated 11.6.1990. Clause (1) of the
appointment order indicates that he would be on probation
for the academic year 1990-91. By appointment order
dated 1.6.1991, his appointment on probation was
continued for the academic year 1991-92 and 1992-93.
3] The petitioner had contended that he was orally
terminated by the respondent and hence he preferred
Appeal No.163/1992 u/s 9 of the Maharashtra Employees of
Private Schools (Conditions of Service) Act, 1977, before
the School Tribunal at Aurangabad. It was specifically
contended that he was orally terminated on 10.9.1992 with
effect from 11.9.1992.
4] The respondent - management appeared before the
Tribunal and has taken a stand that the management has
not terminated the services of the petitioner. He had
abandoned employment by remaining unauthorizedly absent
for seven consecutive days. In the light of Rule 16 (2)
of the MEPS Rules, 1981, he stood automatically relieved
on the ground that he has abandoned his service
considering the fact that he is not a permanent employee.
The appeal filed by the petitioner was, therefore,
dismissed by order dated 5.4.1995.
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5] The learned Advocate for the petitioner has
strenuously submitted that the impugned judgment is
unsustainable and deserves to be quashed and set aside.
He submits that he is covered by Rule 16(3) of the MEPS
Rules. He was appointed by following the due procedure.
He was orally terminated with effect from 11.9.1992. He
had, therefore, attained the deemed status of a permanent
employee.
6] The petitioner has relied upon the judgment of
this Court in the matter of Santoshi Mahila Mandal &
another v. Presiding Officer & others (2011 (6) BCR 9) to
contend that the plea of abandonment of service is to be
proved and if the charge of abandonment is not proved,
the petitioner would be entitled for reinstatement.
7] The petitioner further relies upon the judgment
of this Court in the matter of Bhadrawati Shikshan
Sanstha v. Hashib Pasha (2014 (2) Mh.L.J. 652) to contend
that even if there is abandonment of service, six months
wages have to be paid by the management to the employee
in the light of the said judgment.
8] Shri Dhanure, learned Advocate for the
petitioner, therefore, submits that this petition
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deserves to be allowed and the petitioner deserves to be
reinstated in service with continuity and full back wages
since he has been terminated illegally by the management
and for no fault on his part.
9] Shri Sakolkar, learned Advocate appearing on
behalf of the management, has supported the impugned
judgment. He submits that the petitioner is covered by
Rule 16(2) of the 1981 Rules. There was no procedure
followed by the management while issuing the appointment
order to the petitioner. The Head Master in his
individual capacity had issued orders of appointment.
10] Rules 16 (2) and 16 (3) of the 1981 Rules read
as under:-
"(2) An application for leave other than casual
leave or extension of leave or to proceed on
leave after vacation shall ordinarily be made in
good time before the date from which the leave or
its extension is sought. Even in exceptional
cases where it is not possible to apply
beforehand because of circumstances beyond the
control of the employee, the application shall be
made within 7 days from the date of absence. A
non-permanent employee shall be deemed to have
abandoned his service if he fails to apply for
leave within seven days from the date of absence.
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(3) In the case of a permanent employee who,
without sufficient cause, fails to apply for
leave within 7 days from the date of absence, it
shall be treated as breach of discipline and he
shall be liable for suitable disciplinary action
after due inquiry. A permanent employee who is
absent from duty (without leave continuously for
a period exceeding three years), shall be deemed
to have voluntarily abandoned his Services."
11]
There can be no debate that Rule 16(2) is
applicable to non-permanent employees and Rule 16(3) is
applicable to permanent employees. The petitioner had
not attained the deemed status of a permanent employee as
is defined u/s 5(2) of the MEPS Act, 1977. He,
therefore, was a non-permanent employee.
12] In the light of the above, the petitioner could
not establish before the School Tribunal that he was
orally terminated from 11.9.1992. The petitioner did not
make efforts to call for the attendance record available
with the management so as to indicate the actual date
till which he had marked his presence on the Attendance
Roll and had discharged his duties as a Clerk.
13] In the absence of the record and in the absence
of the petitioner having made any effort to seek
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direction from the Tribunal in order to compel the
management to produce the record, the School Tribunal did
not have any material before it to arrive at a conclusion
that the respondent - management had orally refused work
to the petitioner and he was, therefore, orally
terminated. The Tribunal concluded that the petitioner
had failed to prove his termination and the management
had established that he was unauthorizedly absent for
more than 7 days without leave.
14] The view taken by this Court in Santoshi Mahila
Mandal (supra) is not applicable to the case in hand
since the employee in the said case was working from
1.1.1979 till 3rd of December, 1993, as a permanent
teacher. Being a permanent teacher, he was covered by
Rule 16(3), which mandated the management to initiate
steps in the event the said teacher was unauthorizedly
absent. It is in that backdrop that this Court partly
allowed the appeal filed by the management only to the
extent of back wages and confirmed the order of
reinstatement.
15] The petitioner has cited the judgment of this
Court in the case of Bhadrawati Shikshan Sanstha (supra)
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to contend that while terminating the service of an
employee, even if he is a non-permanent employee,
compensation equivalent to the salary of six months needs
to be paid to the employee.
16] The said judgment is also not applicable to this
case for the reason that this Court has specifically
observed in paragraph no.8 of the judgment that the
management had issued an advertisement for the post of
Peon and had appointed the employee on the said post. He
acted bona-fide in pursuance to the advertisement and
offered his candidature for the post. He was misled by
the management on account of mis-representation that the
post on which he was appointed was a clear and permanent
post and in that backdrop, he was terminated on the
ground that it is not a permanent vacant post. This
Court granted compensation of six months salary for this
act of mis-representation.
17] In the instant case, the appointment of the
petitioner indicates that he was appointed for one year.
The second appointment order indicates that he was being
continued for another two years. The fact remains that
the petitioner has not been able to prove that he was
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orally terminated from service.
18] In the light of the above, this petition being
devoid of merit is, therefore, dismissed. Rule is
discharged. No order as to costs.
(RAVINDRA V. GHUGE, J.)
ndk/c33168.doc
