Uttam Ramrao Bandgar And Anr vs Anandrao Naik Prathamik Ashram ...
2017 Latest Caselaw 3097 Bom

                                        1               WP NO.1964 OF 2009


       IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                  BENCH AT AURANGABAD

                   WRIT PETITION NO.1964 OF 2009


  1.       Uttam s/o Ramrao Bandgar,
           Age 37 years, Occ. Nil.,
           r/o. Sattadharwadi, Tq. Ausa,
           Dist. Latur.

  2.       Savita d/o Durgappa Mane,
           Age 34 years, Occ. Nil.,
           r/o as above.
                                    ...PETITIONERS

                   VERSUS

  1.       Anandrao Naik Prathamik Ashram Shala,
           Sattadharwadi, Tq. Ausa,
           Dist. Latur,
           Through its President.

  2.       The Special District Social
           Welfare Officer,
           Latur Region, Latur,
           Dist. Latur.

                                            ...RESPONDENTS

                            ...
  Mr. V.D.Gunale, Advocate for the petitioners.
  Mr.N.P.Patil Jamalpurkar, Advocate for respondent no.1.
  Respondent no.2 served.
                            ...
                  CORAM: P.R.BORA, J.

                               DATE : JUNE 13th, 2017

                                      ***




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                                                2                  WP NO.1964 OF 2009

                                      Date of reserving the
                                      judgment:25/4/2017

                                      Date of pronouncing
                                      the judgment: 13/6/2017
                                           ***

  JUDGMENT:

1. The petitioners have challenged the order

passed by the Divisional Social Welfare Officer, Latur

Division, Latur, which was communicated to them vide

covering letter dated 6.6.2008. The petitioners had filed

appeals before the Divisional Social Welfare Officer

challenging the action of respondent no.1 of orally

terminating their services w.e.f. 16th of June, 1997. The

learned Divisional Social Welfare Officer has rejected the

appeal so filed by the petitioners.

2. It is the case of the petitioners that the

petitioner no.1 was appointed as Assistant Cook by an

order dated 1.11.1992 passed by respondent no.1 in the

Primary Ashram School whereas petitioner no.2 was

appointed in the said school as a Cook vide order dated

12.6.1995. According to the petitioners, their

3 WP NO.1964 OF 2009

appointments were made after following due process of

law and on clear and vacant posts. The Divisional Social

Welfare Officer vide order dated 31st October, 1996, had

accorded approval to the appointments of the petitioners

so made by respondent no.1. It is the further case of the

petitioners that though their appointments were on a clear

and vacant posts and were made by following due process

of law, respondent no.1 illegally terminated their services

by an oral order. The petitioners have alleged that

before terminating their services by an oral order,

respondent no.1 did not give any notice to the petitioners

or pay any compensation in lieu of the said notice. It is

further allegation of the petitioners that without assigning

any reason, respondent no.1 illegally and arbitrarily

terminated their services.

3. Aggrieved by the alleged oral termination, the

petitioners initially approached the Labour Court by filing

complaint under the provisions of M.R.T.U. & P.U.L.P. Act,

1971. The Labour Court was pleased to allow the

complaint so filed by the petitioners and had directed

respondent no.1 to reinstate the petitioners with continuity

4 WP NO.1964 OF 2009

of service and with full backwages. The order so passed

by the Labour Court was challenged by respondent no.1

before the Industrial Court at Latur by filing Revision

Application. The Industrial Court at Latur, however, did

not cause interference in the order passed by the Labour

Court and, consequently, dismissed the Revision (ULP)

Application filed by respondent no.1. Aggrieved by the

order passed by the Labour Court, and the order passed by

the Industrial Court, respondent no.1 preferred a Writ

Petition before this Court bearing Writ Petition

No.7478/2006 alleging that the Labour Court was not

having jurisdiction to entertain the complaints so filed by

the petitioners. This Court ( Coram: B.R.Gavai, J.), vide

order passed on 17th of January, 2007, upheld the

objection so raised on behalf of the present respondent

no.1 and consequently allowed the petition, thereby

setting aside the order passed by the Labour Court and

confirmed by the Industrial Court. The Court, however,

gave liberty to the present petitioners to file an appeal

before the Divisional Social Welfare Officer to challenge

their termination before the said authority and further

directed the Divisional Social Welfare Officer to decide the

5 WP NO.1964 OF 2009

appeal, if so filed within a period of three months from the

date of filing of such appeal. Accordingly, the petitioners

jointly filed an appeal before the Divisional Social Welfare

Officer at Latur bearing Appeal No.2/2007. The learned

Divisional Social Welfare Officer, on his assessment of the

material brought before him, dismissed the appeal filed by

the petitioners vide the order which is impugned in the

present petition.

4. Shri Gunale, learned Counsel appearing for the

petitioners, assailed the impugned order on various

grounds. Learned Counsel submitted that the Divisional

Social Welfare Officer has failed in appreciating that since

the petitioners were appointed on clear vacant posts by

following due process of law, respondent no.1 could not

have orally terminated their services without following the

due process of law. Learned Counsel further submitted

that the Divisional Social Welfare Officer has grossly erred

in holding that the appointment orders so issued in favour

of the petitioners were for a fixed period and, as such,

came to an end by efflux of time. Learned Counsel,

referrring to Rule 26 and Rule 28 of the M.E.P.S. Rules,

6 WP NO.1964 OF 2009

submitted that in view of the specific provisions in the

aforesaid Rules, the act on the part of respondent no.1 of

orally terminating the services of the petitioners is illegal

and deserves to be set aside and the petitioners are

entitled for the relief of reinstatement with continuity of

service and with full backwages.

5. Shri N.P.Patil Jamalpurkar, learned Counsel

appearing for respondent no.1, supported the impugned

judgment. Learned Counsel submitted that both the

petitioners were temporarily appointed for a period of one

year and approval to their appointment by the Social

Welfare Officer was granted for that period only. Learned

Counsel further submitted that the appointment orders

issued in favour of the petitioners clearly specify that their

appointments were only for a period of one year and their

services should come to an end by efflux of time on expiry

of the said period. Learned Counsel further submitted

that, accordingly, the services of both the petitioners came

to an end by efflux of time and there was no question of

terminating their services orally or by written order.

Learned Counsel further submitted that thereafter a fresh

7 WP NO.1964 OF 2009

advertisement was issued by respondent for filling in the

posts held by the petitioners. Learned Counsel further

submitted that the petitioners did not apply for the posts

so advertised. Learned Counsel further submitted that

even otherwise since there were complaints against the

petitioners and it was noticed that the petitioners were

negligent in their duties, the management had decided not

to continue the petitioners in service by giving further

appointment to the petitioners after they completed the

tenure of their service as per the appointment orders

issued in their favour. Learned Counsel submitted that

the Divisional Joint Registrar has not committed any error

in dismissing the appeals filed by the petitioners.

Learned counsel, therefore, prayed for dismissal of the

petition.

6. I have carefully considered the submissions

made on behalf of the learned Counsel appearing for the

respective parties. I have also perused the impugned

order and the other material placed on record by the

parties. Though it is the contention of the petitioners

that petitioner no.1 was appointed as an Assistant to Cook

8 WP NO.1964 OF 2009

by an order dated 1.11.1992 and petitioner no.2 was

appointed as a Assistant to Cook by an order dated

12.6.1995, the petitioners have not placed on record the

aforesaid appointment orders. Respondent no.1 has

specifically denied that any such appointment orders were

given to the petitioners by respondent no.1 at any point of

time. The petitioners have, however, filed on record the

appointment orders dated 16th June, 1996, issued in their

favour by respondent no.1. The aforesaid appointment

orders are not disputed by respondent no.1. Perusal of

the said appointment orders reveals that the very first

condition in the said appointment order is that

appointment of the petitioners was only for the said

academic year only and would cease to exist after expiry

of the said period and that no further communication will

be made in that regard. It is evident that without raising

any objection to the terms and conditions as are

incorporated in the appointment orders issued in their

favour by respondent no.1, petitioners resumed their

duties. In view of the specific clause in the aforesaid

appointment orders, the petitioners ceased to be in service

of respondent no.1 after expiry of the period of one year

9 WP NO.1964 OF 2009

i.e. 16.6.1997. As such, there appears no substance in

the allegation made by the petitioners that respondent

no.1 orally terminated their services w.e.f. 16.6.1997.

7. In the affidavit in reply filed by Shri Bhaurao

Anandrao Chavan, president of respondent no.1, he has

specifically averred that on 16.6.1997 an advertisement

was issued inviting applications to fill in the posts of

Assistant to Cook and in pursuance to the said

advertisement, Sidram Hiru Raut and Smt. Hirubai Ade

were appointed on the posts of Assistant to Cook and since

then they are working with respondent no.1 institution and

have become permanent employees of respondent no.1.

The petitioners have not filed any rejoinder or counter to

the affidavit in reply so filed by respondent no.1 denying

or disputing the contentions so raised as aforesaid.

According to the further averments in the affidavit in reply

filed by respondent no.1, the fact that the advertisement

was published by respondent no.1 on 16.6.1997 and in

pursuance of the said advertisement aforesaid two

persons, namely, Sidram Hiru Raut and Smt. Hirubai Ade

were appointed on the posts of Assistant to Cook and are

10 WP NO.1964 OF 2009

continuing in services it is well within the knowledge of

the petitioners. Admittedly, this fact has also not been

denied or disputed by the petitioners. There is, thus,

substance in the contention raised by respondent no.1 that

that the petitioners ought to have made the aforesaid two

persons, namely, Sidram Hiru Raut and Smt. Hirubai Ade,

parties in the present petition as well as in all earlier

petitions. Undisputedly, the aforesaid persons are not

added as respondents in the present petition nor they were

party to the proceedings before the Labour Court or

Divisional Social Welfare Officer.

8. In view of the fact that the petitioners have

failed in proving the very basic fact that respondent no.1

orally terminated their services, no case is made out in

favour of the petitioners. Moreover, as stated

hereinabove, the aforesaid two persons were necessary

parties to the present petition. The present petition,

therefore, cannot be considered also on the ground of non

joinder of necessary parties. The Writ Petition being

11 WP NO.1964 OF 2009

devoid of any substance, deserves to be dismissed and is

accordingly dismissed, however, without any order as to

the costs. Rule discharged.

(P.R.BORA) JUDGE

...

AGP/1964-09wp