Sunil Balkrishna Chandachkar vs President Khandesh Education ...
2016 Latest Caselaw 6365 Bom

                                         1




                                                                          
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                  
                            WRIT PETITION NO.2817 OF 1997

    Sunil Balkrishna Chandsarkar,
    Age-36 years, Occu-Unemployed,




                                                 
    Residing near Pandurang Building,
    Datta Mandir, Satana Naka,
    At Post : Malegaon,
    Dist. Nasik                                        -- PETITIONER




                                        
    VERSUS

    1.     The President,
                              
           Khandesh College Education Society,
           Jalgaon - 425002,
                             
           M.J.College Parisar,
           Jalgaon,

    2.     Dr.Director,
           Technical and Vocational Training Centre,
      


           Old Agra Road, Near Trambak Naka,
           Nasik,
   



    3.     Dy.Director of Education,
           Gole Colony, Nasik Region,
           Nasik,





    4.     Presiding Officer,
           School Tribunal
           Behind Runanubandh Mangal
           Karyalaya, Everest Colony,





           Nasik                                       -- RESPONDENTS

WITH WRIT PETITION NO.2818 OF 1997 Sunil Balkrishna Chandsarkar, Age-36 years, Occu-Unemployed, Residing near Pandurang Building, Datta Mandir, Satana Naka, At Post : Malegaon, Dist. Nasik -- PETITIONER

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VERSUS

1. The President, Khandesh College Education Society, M.J.College Campus, Jalgaon, Dist.Jalgaon,

2. Principal, Khandesh College Education Society, Industrial Training Centre/Sanstha,

Maniyar Law College, Jalgaon,

3. Presiding Officer, School Tribunal, Behind Runanubandh Mangal Karyalaya, Everest Colony, Nasik -- RESPONDENTS

Mr.A.G.Talhar h/f Mr.S.S.Gangakhedkar, Advocate for the petitioner. Mr.V.T.Choudhary, Advocate for respondent No.1. Mr.P.N.Kutti, AGP for respondent Nos. 2 and 3. Respondent No.4 is deleted in both the petitions being formal party.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 26/10/2016

ORAL JUDGMENT :

1. Respondent No.4 is the School Tribunal and hence it is deleted

from the proceedings.

2. Both these petitions have been filed by the petitioner / original

appellant since by the impugned judgment dated 08/08/1996, his

Appeals Nos.21/1994 and 34/1994, challenging his terminations

dated 05/09/1990 and 17/07/1994, have been dismissed.

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2. This Court, by its order dated 30/03/1998, has concluded that

it would be open to the petitioner/employee to prosecute only one

amongst the two causes of action. Mr.Talhar, learned Advocate for

the petitioner, therefore, submits that he would be prosecuting the

second cause of action arising out of the termination order dated

17/07/1994.

3. I have considered the submissions of the learned Advocates for

the respective sides at length and with their assistance, I have gone

through the petition paper book.

4. There is no dispute as regards the following factors :-

[a] The petitioner/employee was initially engaged by the

appointment order dated 22/08/1986 as an "Instructor" in the Trade of Draught'sman (Civil) in the Industrial Training Institute of the respondent Education Society. His salary structure has been mentioned in the appointment order.

[b] He has lastly worked upto 31/07/1990 which is a period of about 4 years.

[c] He was issued with order of termination 05/09/1990 wherein the Management has taken a stand that since one of its units has been closed, he would not have any work to do. [d] A Senior Instructor by name Mr.G.J.Mahajan was appointed as

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an Instructor in the surviving unit in August 1990. [e] Eventually, the first unit was permanently closed down in

August 1992 and the second unit was closed down from August 1993.

[f] Both the units are presently not operational.

5. It appears that the first termination order was issued by the

Management de-hors Rule 26 of the MEPS Rules, 1981. Same was

assailed after 4 years by the petitioner before the Tribunal. During

the pendency of Appeal No.21/1994, the Management issued the

second termination order dated 17/07/1994 "without prejudice to its

rights in the pending appeal".

6. It is, therefore, apparent that the first termination order was

issued without the compliance of the provisions of the rules and

consequentially the Tribunal has concluded that since the second

termination order has been issued, the said order would be

insignificant. It cannot be ignored that the second termination order

dated 17/07/1994 is in due compliance of Rule 26 and the petitioner

has been given 3 months termination notice and obviously salary for

the said 3 months period. The factum of closure is not disputed and

as such, the said ITI Institute conducted by the Management is no

longer operational. In this backdrop, the prayer for reinstatement,

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with continuity and full back wages put forth by the petitioner cannot

be entertained.

7. In the backdrop of the first termination order dated

05/09/1990, being unsustainable, it leads to a legal presumption

that the petitioner has continued in employment. The Management,

by way of abundant precaution, has issued the second termination

order so as to fall back upon the said order to justify the termination

of the petitioner. Considering Rule 26 and the reason for termination,

the order of termination dated 17/07/1994 deserves to be sustained

and has rightly been sustained by the Tribunal.

8. In the above backdrop, it has to be legally assumed that the

petitioner has continued in employment till the date on which his

termination order dated 17/07/1994 was given effect to. It is

undisputed that the second order effects the termination from

18/11/1994 and the petitioner has been paid his salary during the

notice period.

9. In the light of the above, the petitioner would thus be entitled

for his last drawn wages as paid to him by drawing an average of the

3 months notice period, for the period from 05/09/1990 till

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16/07/1994, assuming that the Management has paid the salary to

the petitioner during the notice period. Consequentially, the Second

Petition No.2818/1997 challenging the impugned termination order

dated 05/09/1990 is rendered infructuous and stands disposed of.

Rule is discharged.

10. The First Petition No.2817/1997 stands partly allowed only to

the extent of granting the petitioner his wages as observed in the

foregoing paragraph for the period 05/05/1990 till 16/07/1994. In

the event his wages have not been paid for the 3 months' notice

period, the same shall also be payable. The respondent/Management

shall accordingly pay the petitioner the said amount of wages within

a period of 12 weeks from today, failing which the said amount shall

carry simple interest @ 6% p.a. from the date of the impugned

judgment of the Tribunal till actually it is paid and the entire amount

shall have to be paid by the Management.

11. Rule is made partly absolute accordingly.

( RAVINDRA V. GHUGE, J.)

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