Sanjayl Awachit Patil vs Rahul Educlation Society
2016 Latest Caselaw 5704 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD




                                                                                     
                                 WRIT PETITION NO.2205 OF 1996




                                                             
    Sanjay Awachit Patil,
    C/o Satish Awachit Patil,
    Deopur, Vit Bhatti,




                                                            
    Near Durga Mata Mandir,
    Deopur, Dhule.
                                                        ...PETITIONER
              -VERSUS-




                                                
    1         Rahul Education Society,
              Anand Nagar, Deopur,   
              Dhule.
              Through it's President/ Chairman.
                                    
    2         Head Master,
              Nalanda Vidyalaya, Deopur,
              Dhule.
                                                        ...RESPONDENTS
       

                                             ...
             Advocate for Petitioner : Shri D.J.Patil h/f Shri N.B.Suryawanshi.
    



            Advocate for Respondents : Shri V.D.Hon, Senior Advocate a/w Shri 
                                          A.V.Hon.
                                             ...





                                           CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 29th September, 2016

Oral Judgment :

1 The Petitioner is aggrieved by the judgment and order dated

20.09.1994 delivered by the School Tribunal, Nashik by which his Appeal

No.1/1994 has been partly allowed by passing the following order:-

"1. Appeal of the appellant is partly allowed. Instead up holding the termination order issued by the management, I award lesser punishment u/s 11(2D)

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and direct management to appoint the appellant on the post of Peon. By issuing fresh appointment and

direct the management to allow him to work on that post till he legally entitled to hold that post.

2. The prayer of the appellant to reinstate him on the

post of Lab Attendant and give back wages are hereby rejected.

3. There is no order as to costs.

4. Management is directed to observe these directions by

appointing appellant on the post of Peon by issuing fresh appointment order within 40 days from the date of knowledge or from the date of receipt of copy of order, comply and report."

There is no dispute as regards the following factors:-

(a) The Petitioner was appointed as a Peon on 13.06.1984.

(b) On 01.05.1991, he was promoted as a Lab Attendant.

(c) His services have been approved by the competent authority.

(d) He was served with the order of suspension dated 05.07.1993

suspending him with retrospective effect from 28.06.1993.

(e) He was served with the charge sheet dated 29.09.1993.

(f) The enquiry was concluded by report dated 04.01.1994.

(g) On the same day 04.01.1994, the Petitioner was terminated

by a single sentence order with retrospective effect from

28.06.1993.

3 The learned Advocate for the Petitioner draws my attention to

the charge sheet and submits that the charge sheet is vague and

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ambiguous. He then draws my attention to the impugned order delivered

by the School Tribunal wherein the School Tribunal concluded that the

enquiry is vitiated as Rules 36 and 37 of the MEPS Rules, 1981 have not

been properly complied with while conducting the enquiry.

4 He submits that surprisingly, though the School Tribunal

allowed the appeal partly, it awarded a lesser punishment and directed the

Respondent/ Management to appoint the Petitioner on the post of Peon by

issuing a fresh appointment order and allow him to work. He submits that

the operative part of the order reproduced above, would indicate that the

same is perverse and erroneous.

5 Shri Hon, learned Senior Advocate appearing on behalf of the

Respondent/ Management, has strenuously defended the impugned order.

He concedes that the Management has not challenged the impugned

judgment in this Court. He further submits that pursuant to the impugned

order of the School Tribunal, the Management intimated the Petitioner to

report to the school so as to initiate steps as per the order of the Tribunal.

He submits that the Petitioner was employed elsewhere in some ginning

factory for nine months.

    6              He,   therefore,   submits   that   neither   the   Petitioner   can   be 





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reinstated as a Lab Attendant nor is he entitled to any back wages. He has

strenuously supported the enquiry conducted.

7 Having considered the submissions of the learned Advocates,

I have gone through the petition paper book.

8 Shri Hon has defended the enquiry conducted against the

Petitioner. The said enquiry has been set aside for the reason that the

Convener sent the report of the Enquiry Committee on 04.01.1994 and on

the same day, the Petitioner was terminated with retrospective effect. In

paragraph 6 of the impugned judgment, the School Tribunal has

considered various stages at which the enquiry was faulted and as a result

of which, the enquiry was rendered unsustainable. The submissions of

Shri Hon in support of the enquiry cannot be accepted or considered for

the reason that after the enquiry was set aside by the School Tribunal, the

Management has not chosen to challenge the judgment of the Tribunal

before this Court and has thus, accepted the verdict of the Tribunal.

9 Insofar as the order of termination is concerned, it requires no

debate that there cannot be termination with retrospective effect. Time

and again, the Honourable Supreme Court as well as this Court has

concluded that termination with retrospective effect is unforeseen in law.

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(See Assaram Raibhah Dhage vs. Executive Engineer, Sub Divisional, Mula,

1988 (4) Bom. C.R. 158 : 1987 (2) CLR 231). Consequentially, the order

of termination dated 04.01.1994 w.e.f. 28.06.1993 deserves to be quashed

and set aside. Consequentially, the Petitioner is entitled to reinstatement.

10 Insofar as the contention of the Petitioner that the charge

sheet is vague and ambiguous is concerned, I have no reason to disagree

with the learned Advocate for the Petitioner. I have gone through the ten

charges levelled upon the Petitioner in Marathi, which, upon being

translated in English, would read as under:-

(1) You took some money from the Clerk of the School Shri C.N.Gangurde in March, 1993 and did not explain what you

have done with the money.

(2) You do not behave properly in school and when you are directed to perform any work, which would take one hour, you take the whole day.

(3) You do not keep the lab and material in the lab in proper condition.

(4) You always speak lies and you reach the school late and leave

the school early.

         (5)        You defame the trustees of the Trust.
         (6)        You   apologized   on   28.01.1993   in   the   presence   of   your 
                    relatives and friends of the trustees.
         (7)        You are fickle minded and you are a mischief monger.
         (8)        You are the cousin brother of the trustee and because you are 





                                                          *6*                          901.wp.2205.96

a disabled person, you were given employment and you have forgotten the favours done by the Management.

(9) You have taken undue advantage of your relations with the

trustees.

(10) In the last two years, your conduct has not improved.

11 It is quite apparent that the charges levelled upon the

Petitioner are as vague as they could have been. The enquiry conducted on

the basis of the said charge sheet, is unsustainable since no details have

been set out in the charge sheet, no employee is expected to defend

himself on such vague and ambiguous charges. Considering the manner in

which the enquiry was conducted and the contents of the charge sheet, I

do not find that the School Tribunal has committed any error in setting

aside the enquiry.

12 The impugned judgment, in my view, is unsustainable for the

reason that when the enquiry was set aside and the charge sheet makes

out no charge against the Petitioner, the School Tribunal has modified the

punishment of dismissal and has granted a lesser punishment by directing

the Respondent/ Management to issue a fresh appointment order to the

Petitioner. His prayer for reinstatement and back wages was rejected. In

the peculiar backdrop recorded as above, such an order is unsustainable in

law.

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    13              The   Honourable   Apex   Court   in   paragraphs   8   and   9   of   it's 

judgment in the case of Vidya Vikas Mandal and another vs. Education

Officer and another, 2007(3) Mh.L.J. 801 (SC), has concluded that when

the enquiry is set aside, the Management is to be directed to conduct the

enquiry afresh from the stage at which it is vitiated and the employee is to

be placed under suspension from the date of his termination and is

entitled for subsistence allowance until fresh orders are passed.

14 However, in the instant case, I do not find it appropriate to

direct the Management to conduct a de-novo enquiry after 23 years since

the charge sheet itself is vague and ambiguous and indicates that the

Management had no material before it to level any charge upon the

Petitioner. Even as regards the charge of alleged misappropriation, no

details are given. The amount is not mentioned. The Petitioner was a Lab

Attendant and had no reason to accept any money from the Clerk of the

School. In the absence of specific particulars and details, the said charge is

also equally vague. I do not find any purpose in allowing the Management

to conduct a de-novo enquiry after 23 years.

15 Insofar as the payment of back wages is concerned, the

Honourable Apex Court in the matter of Nicholas Piramal India Limited v/s

*8* 901.wp.2205.96

Hari Singh, 2015 (2) CLR 468, has concluded that 50% back wages

would be appropriate relief to reduce the rigours of litigation and

unemployment. The Respondent/ Management contends that they had

invited the Petitioner to the school. The direction of the School Tribunal

was to issue a fresh appointment order and allow the Petitioner to work as

a Peon. No such fresh appointment order has been placed on record. The

plea taken by the Management that the Petitioner was called upon to

report to the School, is only to create a make believe picture since the

Management was directed to issue a fresh appointment order and it is not

the case of the Management that they have issued a fresh appointment

order and appointed the Petitioner.

16 In the peculiar facts as above, this Writ Petition is partly

allowed. The impugned judgment of the School Tribunal is quashed and

set aside. Appeal No.1/1994 is allowed with the following directions:-

(a) The Petitioner, who is about 48 to 50 years old today, be

reinstated as a Lab Attendant on the post which he was

occupying earlier, within a period of TWO WEEKS from today.

(b) The Respondent/ Management shall calculate his back wages

including all allowances, on year to year basis, considering

the gradual rise in wages and accordingly, pay 50% back

wages to the Petitioner by calculating his gross wages at par

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with comparable Lab Attendant, if any.

(c) The back wages shall be paid by the Respondent/

Management to the Petitioner within a period of TWELVE

WEEKS from today, failing which interest at the rate of 6%

would be payable from the date of this judgment till the

amount is actually paid.

(d) There shall be continuity in service to the Petitioner from the

date of his retrospective termination 28.06.1993 till his actual

reinstatement.

(e) Considering the fact that there were no charges against the

Petitioner and he was persecuted by vague and ambiguous

charge sheet dated 22.09.1993, I am imposing costs of

Rs.25,000/- (Rupees Twenty Five Thousand) on the

Respondent / Management to be paid to the Petitioner within

a period of TWELVE WEEKS from today.

17 Rule is made partly absolute in the above terms.

    kps                                                            (RAVINDRA V. GHUGE, J.)