Janshakti Shikshan ... vs Ku.Karuna Baburao ...
2017 Latest Caselaw 9389 Bom

 Judgment                                          1                                wp1902.99.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                           WRIT PETITION NO. 1902  OF 1999


 1. Janshakti Shikshan Sanstha,
    Pandharkawada, Dist. Yavatmal,
    through its Secretary, having its 
    office at Shri Babasaheb Deshmukh
    Parwekar Mahavidyalaya,Pandharkawada,
    Taluka Kelapur, Dist. Yavatmal.

 2. The Principal, Shri Babasaheb Deshmukh
    Parwekar Mahavidyalaya, Pandharkawada,
    Taluka : Kelapur, Dist. Yavatmal. 

                                                                     ....  PETITIONERS.

                                     //  VERSUS //


 1. Ku. Karuna Baburao Patil alias
    Smt. Karuna W/o. Govindrao Kale,
    aged about 36 years, Occ.: Service,
    R/o. Saraswati Bhawan, Akhada Ward,
    Pandharkawada, Taluka Kelapur,
    Dist. Yavatmal. 

 2. Amravati University, Amravati,
    through its Registrar.  

 3. The Presiding Officer,
    University and College Tribunal, 
    Nagpur University, Nagpur. 
                                                                    .... RESPONDENTS
                                                                                  .

  ___________________________________________________________________
 Shri A.M.Gordey, Sr. Advocate a/b. Ms V.S.Gordey, Adv. for Petitioners. 
 Shri S.P. Bhandarkar, Advocate for Respondent No.1.  
 Shri S.S.Ghate, Advocate for Respondent No.2.  
 ___________________________________________________________________




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  Judgment                                             2                                wp1902.99.odt




                              CORAM : Z.A.HAQ, J.

DATED : DECEMBER 07, 2017.

ORAL JUDGMENT :

1. Heard.

2. The petitioners/ management have challenged the order passed

by the University and College Tribunal allowing the appeal filed by the

respondent No.1/employee and quashing the notice of termination.

3. The relevant undisputed facts are :

The petitioner No.1/management is running a college which is

recognized by the Government of Maharashtra and is affiliated to Amravati

University, Amravati. In the academic session 1993-1994, subject of

Philosophy was introduced for students of Bachelor of Arts (B.A.) on no-

grant basis. In 1993-1994 some students of B.A. Part-I opted for the subject

Philosophy and the workload was about 5 periods per week. The respondent

No.1/employee was appointed as Contributory Lecturer on clock hour basis

for that academic session. In the academic session 1994-1995 the workload

for this subject increased and was around 10 periods per week. The

respondent No.1 was continued as Contributory Lecturer in that session also.

In 1995-1996 the workload for this subject increased further and was about

15 period per week and as sufficient workload was available regular

Judgment 3 wp1902.99.odt

appointment was required to be made and therefore, the college issued an

advertisement, conducted interviews and after following the prescribed

procedure appointed respondent No.1 as lecturer for academic session 1995-

1996. In 1996-1997 the workload for the subject was sufficient and

therefore, the respondent No.1 was continued.

4. According to the management, in 1997-1998, students of B.A.-I

had not opted for subject Philosophy and consequently the workload for the

said subject reduced to 10 periods per week and then in 1998-1999 the

students of B.A. Part-I and B.A. Part-II did not opt for the subject Philosophy,

and the workload further reduced and it was about 5 periods per week.

The respondent No.1/employee disputes that the students had

not opted for the subject Philosophy and it is the case of the respondent No.1

that the petitioners had deliberately not made the subject of Philosophy

available to the students who took admission in 1997-1998 and in 1998-

1999.

5. According to the management, a resolution was passed on 10 th

January, 1999 that as the workload for the subject Philosophy had reduced in

the academic session 1999-2000 there would be no workload for the subject

and the respondent No.1 be retrenched by giving three months' notice.

Pursuant to this resolution notice dated 25th January, 1999 was issued

Judgment 4 wp1902.99.odt

informing the respondent No.1 that her services shall stand terminated w.e.f.

30th April, 1999 / 1st May, 1999.

The respondent No.1/ employee approached the Tribunal by

filing appeal under Section 59 of the Maharashtra Universities Act, 1996,

with the grievance that the notice issued by the management was illegal.

The management opposed the claim of the respondent No.1/employee. After

considering the rival submissions, the Tribunal concluded that as the

respondent No.1/employee was appointed after following prescribed

procedure and had been in the employment for more than 2 years she

acquired status of confirmed employee as per clause (4) of Statute No.53 of

the University. The Tribunal further held that as per clause 8(f) of Ordinance

No.24 of the University, the services of the respondent No.1/ employee could

not have been terminated without seeking prior approval of the University.

The Tribunal has accordingly allowed the appeal filed by the employee.

6. At the time when this petition was taken up for hearing on

admission, one of the ground raised on behalf of the petitioner was that the

appeal filed by the respondent No.1/ employee before the Tribunal was not

maintainable as the appeal under Section 59 of the Maharashtra Universities

Act, 1994 was available only against the order of termination and not against

the notice of termination. The issue was referred to Larger Bench. By

judgment delivered on 22nd August, 2016, the Division Bench of this Court

Judgment 5 wp1902.99.odt

has held that appeal under Section 59 of the Maharashtra Universities Act,

1994 is maintainable even if the appeal is filed before the termination order

becomes effective.

7. The learned Senior Advocate for the petitioners has submitted

that the Tribunal has committed an error in relying on the provisions of the

Statute No.53 and Ordinance No.24 of the University. It is argued that

Statute No.53 was made by Nagpur University under the provisions of the

Nagpur University Act, 1974 and when Amravati University came into

existence, statutes or ordinances were not framed by the Amravati University

and Statute No.53 and Ordinance No.24 were made applicable to Amravati

University in view of the provisions of Section 108 of the Amravati University

Act, 1983, that the statutes and ordinances made under the Nagpur

University Act, 1974 were made by the Executive Council as per the powers

conferred under Section 24(1)(vi) of the Nagpur University Act, 1974,

however, under the Maharashtra Universities Act, 1994 the power to frame /

prescribe statutes and ordinances were with the Management Council as per

Section 28(u) of the Maharashtra Universities Act, 1994 and as the authority

to frame statutes and ordinances under the Maharashtra Universities Act,

1994 was different, it has to be treated that the statutes and ordinances

framed under the Nagpur University Act and adopted and made applicable

to the Amravati University were inconsistent and were not saved under

Section 115(2)(xii) of the Maharashtra Universities Act, 1994. The

Judgment 6 wp1902.99.odt

submission on behalf of the petitioners is that as the Statute No.53 and

Ordinance No.24 were inconsistent with the scheme of the Maharashtra

Universities Act, 1994 and were not saved under Section 115 of the

Maharashtra Universities Act, 1994, the respondent No.1/ employee cannot

be granted protection relying on Statute No.53 and Ordinance No.24.

8. From the scheme of the Maharashtra Universities Act, 1994 it is

clear that the statutes and ordinances which were made under the Nagpur

University Act, 1974/Amravati University Act, 1983 were saved provided

they were not inconsistent with the provisions of the Maharashtra

Universities Act, 1994. The submission made on behalf of the petitioners

that as the Statute No.53 and Ordinance No.24 made under the Nagpur

University Act, 1974 were made applicable to the Amravati University as per

Section 108 of the Amravati University Act, 1983 and as they were made by

Senate, could not have been made applicable after the enforcement of the

Maharashtra Universities Act, 1994 as under this Act the power to make

statutes and ordinances is with different authority i.e. 'Management Council',

cannot be accepted as there is presumption that the legislature was aware

while enacting Section 115(2)(xii) of the Maharashtra Universities Act, 1994

that the statutes and ordinances under the Nagpur University Act, 1974 and

Amravati University Act, 1983 were made by the Senate and not by

Management Council. If the submission made on behalf of the petitioners on

this point is accepted, then none of the statutes or ordinances made under

Judgment 7 wp1902.99.odt

the Nagpur University Act and Amravati University Act could have been

saved and in that case clause (xii) of sub-section (2) of Section 115 of the

Maharashtra Universities Act, 1994 would be redundant.

9. As far as merits of the matter are concerned, the Tribunal has

rightly held that the respondent No.1/ employee acquired the status of

confirmed employee as per clause (4) of Statute No.53 and as her services

were terminated on the ground that workload was not available, the

management was required to seek prior approval and the university as per

clause 8(f) of Ordinance No.24 of the University and it having not been done,

the termination notice is bad in law.

Thus, I find that the findings recorded by the Tribunal does not

require any interference by this Court.

10. The question is what relief can be granted to the respondent

No.1 in the facts of the case. It is not disputed by the respondent No.1-

employee that after 1999 subject of Philosophy is not being taught to the

students of the college. Thus, the respondent No.1 cannot be reinstated for

want of workload. The age of the respondent No.1 at present is about 54

years. Though the learned advocate for the respondent No.1 has submitted

that she would be entitled for compensation equivalent to the arrears of

back-wages, the respondent No.1 has not placed anything on record to show

that she was not gainfully employed during the relevant period.

Judgment 8 wp1902.99.odt

11. In these facts, in my view, the relief can be molded in the

following terms:

i) The petitioner No.1 / Management shall pay

compensation of Rs.Eight Lakhs to the respondent No.1 /

employee in lieu of reinstatement and back-wages. This

amount of compensation shall be paid by the petitioner No.1/

management to the respondent No.1/employee by Demand

Draft till 5th March, 2018. If the amount is not paid till 5 th

March, 2018 the petitioner No.1/Management shall be liable to

pay interest on the amount of Rs.Eight Lakhs @ 9% per annum,

the interest being chargeable from 1st May, 1999 till the

amount is paid to the respondent No.1/employee.

ii) The order passed by the Tribunal is modified in the

above terms.

The writ petition is partly allowed. In the circumstances, the

parties to bear their own costs.

JUDGE

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