Vilas S/O Cimpatrao Kangale vs The State Of Maharashtra Thr Its ...
2017 Latest Caselaw 2780 Bom

                                                                              WP.267.12
                                             1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                 NAGPUR BENCH, NAGPUR.

                               WRIT PETITION NO. 267 OF 2012


     Vikas s/o Champatrao Kangale,
     Aged about 56 years, R/o 
     Near Ramdevbaba Mandir,
     R/o Morshi, District
     Amravati.                         ....                           PETITIONER

                  // VERSUS //  

     1] State of Maharashtra, through
        its Secretary, Department of 
        Revenue and Forest,
        Mantralaya, Mumbai-32,

     2] The Sub-Divisional Officer,
        Morshi, District Amravati.     ....                         RESPONDENTS


     Mr. R.V. Shiralkar, Advocate for petitioner.
     Mr.   A.V.   Palshikar,   Assistant   Government   Pleader   for   respondent
     nos. 1 & 2.  


                     CORAM :  B.P. DHARMADHIKARI & ROHIT B. DEO, JJ.

DATED : JUNE 6, 2017.

ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.).

1] Heard Mr. R.V. Shiralkar, learned Counsel for the

petitioner and Mr. A.V. Palshikar, learned Assistant Government

Pleader for the respondent nos. 1 & 2.

WP.267.12

2] The challenge in this Writ Petition under Article 226 of the

Constitution of India is to adjudication by Maharashtra Administrative

Tribunal on 22.12.2010 in Transfer Application No. 907/92. Before its

transfer to Maharashtra Administrative Tribunal, proceedings were

registered in this Court as Writ Petition No. 2544/87.

3] Petitioner born in 1955 was working with Executive

Engineer, P.W.D. Achalpur, District Amravati. He was dismissed on

30.10.1982 and that dismissal was questioned by him before the

Labour Court in Complaint (ULP) No. 285/82. Second Labour Court

at Akola decided the Complaint and allowed it. His employer was

directed to reinstate him with continuity and back wages. Admittedly,

the petitioner did not join as per this order dated 11.2.1985.

4] After this termination on 30.10.1982, petitioner was

appointed on 10.2.1984 by S.D.O., Morshi as a nominee of the

freedom fighter. The order of appointment stipulated that his

appointment was of purely temporary nature and without assigning

any reason, he could be terminated. The respondent no.2 S.D.O. on

25.7.1985 relieved him from Government service with effect from

15.7.1985 stating that his services were no longer required. The

WP.267.12

petitioner made a representation pointing out that others appointed

with him and junior to him were being continued. He, therefore,

enquired about the grounds of termination. On 19.8.1985 he was

informed by S.D.O. that for misappropriation of cement bags

petitioner was dismissed from Government service vide order dated

30.10.1982. As such, he could not have been continued in

employment in terms of order dated 10.2.1984.

5] After communication of these reasons, petitioner

approached this Court in Writ Petition No. 2544/87. After constitution

of Maharashtra Administrative Tribunal, the Writ Petition was

transferred to MAT where it came to be registered as Transfer

Application No. 907/92. It has been decided on 22.12.2010 holding

that latter employment of petitioner with respondent no.2 was

temporary and its termination was as per stipulation in order of

appointment. As it was a non-stigmatic order, no interference was

possible. Maharashtra Administrative Tribunal, therefore, dismissed

the challenge.

6] Thereafter, the present Writ Petition came to be filed and it

has been admitted for final hearing on 24.1.2012.

WP.267.12

7] Mr. R.V. Shiralkar, learned Counsel for the petitioner,

submits that though the appointment order issued to petitioner by

respondent no.2 on 10.2.1984 stipulated that appointment was liable

to be terminated without assigning any reason as it was of temporary

nature, still as he was a nominee of a freedom fighter, when others

were continued in service the use of power to terminate is obviously

with ulterior motive. Hence, enquiry was made which revealed that

the earlier dismissal for alleged misappropriation in October, 1982

was the real reason. That termination was already set aside by

Second Labour Court at Akola on 7.10.1983 and had the petitioner

been given notice, he could have pointed it out to respondent no.2.

He, therefore, submits that in this situation, use of power to terminate

is itself not fair and hence the MAT should have intervened in the

matter.

8] The learned A.G.P. points out that grant of employment on

10.2.1984 itself was unsustainable. The petitioner already had

Government job and because of misconduct he was dismissed from it

in October, 1982. Because of that dismissal, he could not have

claimed status as nominee of a freedom fighter and procured fresh

employment. As he suppressed previous employment and dismissal,

WP.267.12

he was given another appointment order dated 10.2.1984. After

getting the knowledge of his previous service, by an innocuous order

without casting any stigma his services are not required by his

employer. He, therefore, submits that no interference is warranted in

the matter.

9] Mr. R.V. Shiralkar, learned Counsel for the petitioner, in

brief reply points out that obtaining employment by playing fraud was

not the reason for termination. Suppression of previous dismissal is

the reason communicated on 19.8.1985. Reason was not available

because of order of reinstatement with continuity and back wages

passed by 2nd Labour Court at Akola. He further states that as of

today petitioner has already crossed the age of superannuation and

hence, this Court may in the present situation grant him appropriate

relief.

10] The facts are not in dispute. Earlier employment of

petitioner with P.W.D. was brought to an end on 30.10.1982. This

dismissal was questioned by petitioner in Complaint (ULP) No.

285/82, i.e. under Section 28 read with Schedule IV Item 1 of the

MRTU & PULP Act, 1971. The Second Labour Court at Akola framed

WP.267.12

the preliminary point whether domestic enquiry was properly and

legally held against the complainant, i.e. the present petitioner. This

point has been answered on 7.10.1983. Labour Court found that the

enquiry was illegal and improper. Complainant was not given any

opportunity to defend. It, therefore, answered the point accordingly.

Thereafter, employer was given opportunity to prove misconduct in

Labour Court. Employer failed to avail that opportunity and hence on

11.2.1985 the complaint was allowed and relief of reinstatement with

back wages and continuity came to be granted.

11] Thus, on 25.7.1985 when respondent no.2 put an end to

employment of petitioner as no longer required, because of this

adjudication dated 11.2.1985 earlier dismissal was not at all in

existence. Petitioner was not given any show-cause notice and only

because of that dismissal his employment came to an end. It is

important to note that suppression of previous employment or

previous dismissal was not the reason given in it.

12] The order of removal from employment dated 25.7.1985

only communicates that services of petitioner were no longer required

by State Government. He was discontinued from 15.7.1985

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afternoon retrospectively by order dated 25.7.1985. The order is no

doubt innocuous and it also does not contain any reference to any

inculpatory material. As such, communication of reasons when

enquired by petitioner cannot make that order stigmatic. But this

order is retrospective in nature. Not only this, on that date dismissal

of petitioner was no longer in existence. The reason that services of

petitioner were not required appears to be incorrect because others

including his juniors were continued in service. Hence, we find that

the order of termination dated 25.7.1985 is unsustainable and liable

to be quashed and set aside.

13] The question today is about the nature of relief to be given

to petitioner. The petitioner has not definitely while procuring

employment on 10.2.1984 pointed out his previous employment with

State Government and his dismissal from that service. He has

definitely not pointed out Complaint (ULP) No. 285/82 filed by him or

its adjudication by Labour Court on 11.2.1985. Even after he was

terminated on 25.7.1985, he has not made any representation

pointing out these details. In a way, therefore, the petitioner also has

contributed to the present situation.

WP.267.12

14] In this situation, we are not inclined to burden public

employment unnecessarily with liabilities like pension, gratuity and

provident fund. We set aside the order of termination dated

25.7.1985 and in lieu of reinstatement, grant petitioner wages for

three years, i.e. wages which he would have received in last three

years of his employment as compensation.

15] The amount of wages shall be accordingly worked out in

six months and shall be paid to the petitioner. If the amount is not so

paid, it shall carry 6% interest per annum after the expiry of period of

six months till its realization. Needless to mention that apart from this

amount, the petitioner shall not be entitled to receive any other

amount from the respondent.

16] The Writ Petition is thus partly allowed and disposed of.

Rule is made absolute in the above terms with no order as to costs.

                     JUDGE                                              JUDGE.

     J.