Chairman, Mah.Seva Mandal, ... vs Swapanali Rajendra Londhe And Ors
2017 Latest Caselaw 3807 Bom

                                     1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                       WRIT PETITION NO. 2427 OF 1998

     The Chairman, Maharashtra Seva Mandal,
     Ward No. 7, Belapur Road, Shrirampur,
     District Ahmednagar.                                    ...Petitioner.
  
            Versus

 1.  Mrs. Swapanali Rajendra Londhe,
      Age. Major, 
      C/o. Mrs. Sunanda Prabhakar Pise,
      "Suyash", Behind Kalaram Mandir, 
      Ward No. 7, Shrirampur, Dist. Ahmednagar.

 2.  Headmistress, Shankarrao Satoba Davkher 
      Kanya Vidyalaya, Ward No. 7,
      At Post Shrirampur, Dist. Ahmednagar.

 3.  Education Officer (Secondary), 
      Zilla Parishad, Ahmednagar.

 4.  F.J. Syed,
      Shankarrao Satoba Davkher,
      Kanya Vidyalaya, Ward No. 7, 
      Shrirampur, Dist. Ahmednagar.

 5.   State of Maharashtra.                             ...Respondents.



       Advocate for Petitioner : Shri S.V. Dixit.
       Advocate for Respondent No. 1 : Shri S.T. Shelke.
       AGP for Respondent No. 5 / State : Shri N.T. Bhagat.



                                      CORAM : RAVINDRA V. GHUGE, J.

                                      Dated    : 30th June, 2017







 ORAL JUDGMENT :

1. The petitioner is aggrieved by the judgment of the School

Tribunal dated 10/02/1998, by which, Appeal No. 100/1996,

filed by respondent No. 1 / employee was allowed and she was

granted reinstatement with continuity and full back wages with

effect from 13/06/1996.

2. This Court by order dated 27/07/1998, has admitted this

petition. No interim relief was granted to the petitioner and it

was directed to deposit Rs. 35,000/- (Rupees Thirty Five

Thousand only) in this Court, towards arrears of back wages.

However, the said amount, admittedly, has not been deposited.

Even though contempt petition was filed, the said amount is not

deposited.

3. I have considered the strenuous submissions of the

learned advocates for the respective sides. Shri Dixit, has taken

me through each of the thirteen grounds that have been set out

in the memo of the petition. He has pointed out the model

roaster for the year 1995 and 1996 and has submitted that

there was backlog and consequently the appointment of the

respondent / employee against the ST category can be

sustained.

4. I find from the record that the petitioner had terminated

the respondent No. 1 / employee by order dated 25/06/1995,

with retrospective effect from 13/06/1996. The only ground

raised was that the approval was granted for only one academic

year and hence she cannot be continued in service.

5. The impugned order of termination dated 25/06/1996,

cannot be sustained for two reasons. Firstly, that it is a

termination with retrospective effect. The learned Division

Bench of this Court in the matter of Asaram Raibhah Dhage

Versus Executive Engineer & Ors. [1989 (2) CLR page 331], has

observed in paragraph Nos. 1 to 4 as under :

"1. The services of an employee, be he permanent or

temporary, cannot be terminated with retrospective effect.

Such is the ratio of this judgment.

2. On 7th June 1980, the petitioner, a project displaced

person, was appointed as a Mustering Assistant in the

Work Charge Establishment at a monthly salary of Rs.

200/-. Thereafter he worked continuously without break

in service till March, 1986, when by a letter of termination

dated 11th March, 1986 his services were retrospectively

terminated with effect from 1st march, 1986. Hence this

writ petition.

3. The petitioner's learned Counsel Miss Purohit is

perfectly justified in making a grievance that it is

unthinkable that an employee's services can be terminated

with retrospective effect, as done in the present case. We

join learned Counsel in her astonishment. For that matter,

one of the conditions in the letter of appointment is that if

the petitioner desired to resign he was liable to pay one

month's salary or give one month's notice. It is therefore,

ironical that on the other hand, the petitioner's services

were terminated with retrospective effect.

4. However, the respondents' learned Counsel Mr.

Bhatkar ventures that the date of termination, namely

1-3-1986 in the letter of termination must be typographical

error. This is an ipse dixit; it is purely conjecture and

speculative reasoning. Significantly enough, in the

affidavit-in-reply, no such case of a typographical error is

even faintly suggested. For that matter, despite the fact

that in the petitioner it has been categorically stated in no

uncertain terms that by this letter of termination, the

petitioner's services were terminated with retrospective

effect from 1st March, 1986, not even then whisper of a

denial is to be found in the affidavit-in-reply. Thus the

myth of a typographical error stated across the Bar can

safely be ruled out."

6. Secondly, the termination order cannot be sustained since

lack of approval cannot be a reason for termination in the light

of the judgment delivered by the learned Full Bench of this

Court in the matter of Saint Ulai High School Versus Shri

Devendraprasad Jagannath [2007 (1) Mh.L.J. 597].

7. Shri Dixit, has strenuously submitted that the respondent

No. 1 / employee was appointed against ST category and the

approval was also for ST category. Normally, in my view there

can be no interference in the approval granted unless it is

subjected to a specific challenge. However, in this case, the

advertisement pursuant to which the respondent / employee

was appointed, did not indicate that the applications were called

for filling in the post reserved for the ST category. In the

absence of such a clause and in the absence of reservation, the

petitioner cannot contend that the respondent was appointed

against ST category. Moreover, her appointment order dated

31/12/1995, also does not state that she was appointed as

against the ST category.

8. It also cannot be ignored that she was appointed on

probation for a period of two years, though the probationary

period was not specifically mentioned. The MEPS, Act,

prescribes two years probation. So also, the model roaster

placed on record indicates that there was one post available for

the OBC category and the reservation that was carried forward

in 1995 was of one post against SC category and one post

against the ST category. This was besides the appointment of

the respondent / employee on the post reserved for OBC as is

indicated by the model roaster. On this count, as well, the

appointment cannot be faulted.

9. I have considered the impugned judgment in the light of

the submissions of the litigating sides. Keeping in view, the law

laid down in the matter of Asaram Raibhah Dhage (Supra), the

termination of the respondent / employee cannot be sustained.

So also, it cannot be stated that she was appointed against the

ST category. In this backdrop, the impugned judgment of the

School Tribunal to the extent of granting reinstatement with

continuity in service can neither be branded as being perverse

nor erroneous.

10. Shri Dixit, has then submitted that full back wages

cannot be granted as a matter of course. He submits that

whether the respondent / employee was gainful employed has

not been established. In my view, when it comes to a workmen

working in an industrial establishment, the law laid down by

the Hon'ble Apex Court in the matter of J.K. Synthetics Ltd.

Versus K.P. Agrawal, [(2007) 2 SCC 433], will be applicable. A

workmen would have to step into the witness box and lead

evidence for establishing that he is not in employment, had

made an effort for alternate employment and yet could not

secure employment. In the instant case, it has been denied that

she is in gainful employment and it was in less than two years

that the Tribunal has allowed the appeal. It appears that the

appeal was filed in 1996, for challenging the termination of

June 1996, and in about 18 months, the School Tribunal has

allowed the appeal.

11. Shri Dixit, submits that the petitioner institution is not in

a good financial condition, and full back wages cannot be paid.

Shri Shelke, submits that once the termination of a teacher is

held to be bad in law, full back wages have to be paid in the

light of the judgment of the Hon'ble Apex Court in the matter of

Deepali Gundu Surwase Versus Kranti Junior Adhyapak

Mahavidhyalay [(2013) to SCC 324], where the Apex Court has

granted full back wages. As such, I do not find any such

convincing reason or justifiable reason, by which, the back

wages to be paid to the respondent / employee could be

reduced.

12. In the light of the above, this petition being devoid of

merits is, therefore, dismissed. Rule is discharged.

13. The petitioner has not deposited the amount of Rs.

35,000/- (Rupees Thirty Five Thousand only) in this Court as

noted in paragraph No. 2 in this judgment. Consequently, I

deem it proper to impose interest on the said amount at the rate

of 3 % from the date of the direction of this Court which is

27/07/1998. As such, the petitioner / management shall pay

the full back wages from 13/06/1996 till actual reinstatement

of the respondent / employee on 30/07/1998, along with

interest at the rate of 3 % per annum from August, 1998. This

entire amount shall be paid within 12 weeks from today, failing

which the rate of interest of 3 % shall stand enhanced to 6 %

from August, 1998 till the amount is actually paid.

( RAVINDRA V. GHUGE, J. ) S.P.C.