Bombay High Court
Pradeep Vinayakrao Patil vs Abhay Yuwa Kalyan Kendra And Ors on 5 May, 2017
Bench: P.R. Bora
1 WP NO 4834/2001 & 4835/2001
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4834 OF 2001
Ravindra Uttamrao Wagh
Age : 36 Yrs., Occ. Service,
R/o : Dhule, Taluka &
Dist.: Dhule. .... PETITIONER
VERSUS
1. Abhay Yuwa Kalyan Kendra
Through its Chairman
(College of Physical Education)
Anmol Nagar, Deopur, Dhule
Taluka & Dist. Dhule.
2. The Principal
Abhay Yuwa Kalyan Kendra's
College of Physical Education,
Mumbai - Agra road, Dhule
Taluka & Dist. Dhule.
3. The Registrar
North Maharashtra University,
Jalgaon.
4. The State of Maharashtra
.... RESPONDENTS
::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 01:01:21 :::
2 WP NO 4834/2001 & 4835/2001
WITH
WRIT PETITION NO. 4835 OF 2001
Pradeep Vinayakrao Patil
Age : 33 Yrs., Occ. Service,
R/o : C/o Prof. R.U.Wagh,
Ramchandra Nagar,
99, behind Market Yard,
Dhule. .... PETITIONER
VERSUS
1. Abhay Yuwa Kalyan Kendra
Through its Chairman
(College of Physical Education)
Anmol Nagar, Deopur, Dhule
Taluka & Dist. Dhule.
2. The Principal
Abhay Yuwa Kalyan Kendra's
College of Physical Education,
Mumbai - Agra road, Dhule
Taluka & Dist. Dhule.
3. The Registrar
North Maharashtra University,
Jalgaon.
4. The State of Maharashtra
.... RESPONDENTS
::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 01:01:21 :::
3 WP NO 4834/2001 & 4835/2001
Mr. Girish Rane, Advocate for Petitioners.
Mr. Y.B.Bolkar, Adv., Advocate for R - 3.
Mr. S.P.Tiwari, A.G.P. for R - 4.
.............................
CORAM : P.R.BORA, J.
JUDGMENT RESERVED ON : APRIL 25th, 2017
JUDGMENT PRONOUNCED ON : MAY 5th, 2017
.............................
JUDGMENT :
1. The petitioners have challenged the common
order passed by the learned University and College
Tribunal, Aurangabad [for short, 'Tribunal'] on 26/02/2001
in Miscellaneous Application Nos. 40/2000 and 41/2000.
The petitioners had filed aforesaid applications u/s 63 of
the Maharashtra Universities Act, 1994 [for short, 'said
Act'] and the same have been rejected by the Tribunal
vide the impugned order.
2. The petitioners had filed Appeal Nos. 14/1988
and 18/1988 before the Tribunal challenging their
termination. Both the aforesaid Appeals were allowed by
the following common order passed on 01/07/1999 by the
Presiding Officer, University and College Tribunal,
4 WP NO 4834/2001 & 4835/2001
Aurangabad, which reads thus,
" Since the impugned termination letter has
been withdrawn, it follows that no cause action
surveyors for adjudication of question of legality or
otherwise of that termination letter. All that is left is
whether in view of the circumstances, the Appellant
would be entitled to salary from the date of their
termination till the date they joined the duties, and
onwards. The moment impugned order is withdrawn,
it follows that the Appellant would be entitled to
other consequential relief which depended on the
adjudication of the impugned order. Since the
impugned order is withdrawn, it follows that the
Appellants are entitled to consequential relief of
salary during the period from 01.04.1999 till
28.06.1999 and onwards, and it is ordered
accordingly."
3. Since the respondents did not comply with the
said order, the petitioners filed Misc. Application Nos.
18/1999 and 19/1999. Said applications were disposed of
by following common order passed by the Tribunal on
16/02/2000.
" 1. These contempt petitions now
deserves to be disposed off in the set of
following circumstances :
2. By order dated 12/01/2000,
respondent No. 1 was held guilty of
contempt of the Tribunal for disobeying
the order dated 01/07/1999 and he was
fined Rs. 500/-. Advocate for the
respondent makes statement that fine
was deposited vide receipt No. 4115.
The respondent No. 1 was further
directed to comply with the order of this
Tribunal by or before 19/01/2000. On
5 WP NO 4834/2001 & 4835/2001
19/01/2000, when matter came before
this court, it was stated on behalf of
respondent No. 1 that the appellants are
at liberty to join right at this place at
Aurangabad in the office of Tribunal
itself. Accordingly, Appellants joined on
19/01/2000. A copy of the joining
report is filed at Exh. 16 and R-5
respectively on 19/01/2000. It is also
stated by the Appellants in the court that
the salary has been paid to them. In
view of all these aspects, both of these
contempt petitions now stands disposed
off. "
4. As contended in the petitions, respondents
did not allow the petitioners to join services as was
undertaken by them before the Tribunal and the
petitioners were, therefore, constrained to file
Miscellaneous Application Nos. 40/2000 and 41/2000.
Said applications were dismissed by the Tribunal vide the
impugned order. The Tribunal has dismissed the said
applications observing that when the contempt
applications were disposed of by the Tribunal on an
undertaking given by the respondents that they will permit
the petitioners to join the services and if the petitioners
are not allowed to enter the college and engage the
classes by the respondents, it will provide the petitioners
altogether a different cause of action which is beyond the
scope of Section 63 of the said Act. Perusal of the
impugned order shows that the Tribunal has recorded
6 WP NO 4834/2001 & 4835/2001
finding that in such a case the action of the respondents
of not allowing the petitioners to join the services would
amount to otherwise termination and as such the
petitioners have the remedy of filing Appeal before the
appropriate forum and preferring application again u/s 63
of the said Act, was not permissible.
5. Mr. Rane, learned counsel for the petitioners
had assailed the said order passed by the Tribunal.
Learned counsel submitted that the learned Tribunal has
not properly appreciated the provisions u/s 63 of the said
Act. Reading out Section 63 of the said Act, learned
counsel submitted that the request made by the
petitioners clearly falls within the ambit of section 63 of
the said Act.
6. I deem it appropriate to reproduce
hereinbelow the relevant portion of Section 63 of the Act
of 1994 which reads thus:
"63. (1) If the university or, as the case may be,
management fails, without any reasonable cause, to
comply with any direction issued by the Tribunal under
section 61 within the period specified in the direction, or
within such further period as may be allowed by the
Tribunal, the university or, as the case may be,
management shall on conviction, be punished,--
7 WP NO 4834/2001 & 4835/2001
(a) for the first offence, with fine which may extend to
one thousand rupees; Provided that, in the absence of
special and adequate reasons to the contrary to be
mentioned in the judgement of the Tribunal, the fine shall
not be less than one hundred rupees; and
(b) for the second and subsequent offences, with fine
which may extend to two thousand rupees;
Provided that, in the absence of special and adequate
reasons to the contrary to be mentioned in the
judgement of the Tribunal, the fine shall not be less than
five hundred rupees:
Provided further that, when the direction issued by the
Tribunal is not complied with within the period stipulated
in the direction or within such further period as allowed
by the Tribunal, and when the contravention is a
continuing one, the convicted person shall be punished
with a further fine of rupees one hundred per day during
which such contravention continues after conviction. "
7. Previous applications filed by the petitioners
under Section 63 of the Act of 1994, were disposed of by
the learned Tribunal on an assurance and undertaking
given by respondent no.1 to the Tribunal to the effect that
the present petitioners would be allowed to join their
duties. In fact, the joining reports which were got
prepared before the Tribunal and were placed on record of
the Tribunal on 19.1.2000 were the notional joining
reports. However, as has been complained by the
petitioners, the said joining reports remained only on
paper and in reality respondent nos. 1 and 2 did not allow
the petitioners even to enter in the college premises. The
allegations so made by the petitioners are not denied by
8 WP NO 4834/2001 & 4835/2001
respondent nos. 1 and 2. In the impugned order the
learned Tribunal has also noted that the factual averments
made by the petitioners in their applications that they are
not allowed to enter the college and engage the classes
are not disputed.
8. In the premise of the undisputed facts as
aforesaid, the finding recorded by the Tribunal, `that since
the appellants were allowed to report on duty and of which
the record was made available while passing order dated
16.2.2000, there is compliance of that part of the order'
is ex facie unsustainable. The Tribunal has failed in
appreciating that the notional joining reports existing on
record of the Tribunal had lost their sanctity and
significance in view of the subsequent fact brought on
record that the said joining reports were not acted upon.
It has to be, therefore, held that the order passed by the
Tribunal was not complied with and disobedience of the
said order was continuing.
9. The act of respondent nos. 1 and 2 of not
allowing the petitioners to enter the College and engage
the classes has direct nexus with the undertaking given by
respondent nos. 1 and 2 to the Tribunal on 19.1.2000 and
9 WP NO 4834/2001 & 4835/2001
it cannot be said that such an act of respondent nos. 1
and 2 would form a different cause of action beyond the
scope of Section 63 of the Act of 1994. Had it been the
case of respondent nos. 1 and 2 that in pursuance of the
undertaking given by them to the Tribunal, the petitioners
were allowed to join their duties and thus, the notional
joining reports of the petitioners submitted before the
Tribunal on 19.1.2000 were given effect to and
subsequently the services of the petitioners were again
terminated, then it could have been said that there was a
separate cause of action and it could also have been held
that the same was beyond the scope of Section 63 of the
Act of 1994.
10. Respondent nos. 1 and 2 have submitted their
affidavit in reply in the present petition. In the reply so
filed, respondent nos. 1 and 2 have not denied the
allegation made by the petitioners that they were not
allowed to join their duties and sign the muster rolls on
20th of June, 2000 and even thereafter though the
petitioners were regularly visiting the College and
requesting the authorities to allow them to join the duties.
On the contrary, the respondents have come out with a
case that the Physical Education College in which the
10 WP NO 4834/2001 & 4835/2001
petitioners were appointed is no longer in existence and
the said College was closed by resolution dated
15.11.1998. By not denying the allegation that the
petitioners were not allowed to join their duties on 20th
January, 2000, the respondents have, in a way, confirmed
the fact that they did not fulfill the undertaking given by
them to the Tribunal on 19th January, 2000 on the basis
of which the order came to be passed on 16th February,
2000 by the Tribunal thereby disposing of the application
Nos.40/2000 and 41/2000.
11. From the facts as aforesaid, there remains no
doubt that respondent nos. 1 and 2 committed breach of
an undertaking given by them to the Tribunal and
consequently, the order passed by the learned Tribunal
directing reinstatement remained not complied with and
the contravention of the said order was thus continuing
one. Though for the first contempt, the learned Tribunal
had punished the contemnors with fine, the Tribunal was
not precluded to take cognizance of the subsequent
offences in view of Section 63(1)(b) of the Act of 1994.
The Tribunal, thus, has erred in recording a finding that
the allegations made by the petitioners in the
Miscellaneous Application Nos. 40 of 2000 and 41 of 2000
11 WP NO 4834/2001 & 4835/2001
were beyond the scope of Section 63 of the Act of 1994.
12. In the circumstances, the matter needs to be
remitted back to the Tribunal for deciding it afresh.
Hence, the following order:
ORDER
1. The order passed by the University and College
Tribunal at Aurangabad on 26.2.2001 in Miscellaneous
Application Nos. 40 of 2000 and 41 of 2000 is quashed
and set aside.
2. Both the matters are remitted back to the
University and College Tribunal for deciding the same
afresh.
3. Parties shall appear before the University and
College Tribunal on 8th June, 2017, at 11.00 a.m.
4. The Writ Petitions are allowed. Rule made
absolute in aforesaid terms.
(P.R.BORA)
JUDGE
....
agp//W.P. 4834...2001 - [ J ]
