Bombay High Court
Ku. Alka D/O Mohansingh Thakur vs Director Of Education, Secondary ... on 7 September, 2017
Bench: B.P. Dharmadhikari
Judgment. wp3943.11
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3943 OF 2011
AND
LETTERS PATENT APPEAL NO. 306/2009.
..........
WRIT PETITION NO. 3943 OF 2009.
Ku. Alka d/o Mohansingh Thakur,
Aged about 43 years,
Occupation Service, Resident of
Indira Nagar, Tumsar,
Tq. Tumsar, District Bhandara. ..... PETITIONER.
VERSUS
1. Director of Education,
Secondary and Higher Secondary
Education, Directorate Maharashtra
State, Pune - 1.
2.Backward Classes Shaikshanik
and Shanskrutik Sudharna Mandal,
through its President,
Durga Colony, Tumsar,
District Bhandara. ..... RESPONDENTS.
--------------------------
Shri M.S. Wakil, Advocate for the Petitioner.
Ms. N.P. Mehta, Asstt. Govt. Pleader for Respondent No.1.
Shri R.L. Khapre, Advocate, for Respondent no.2 in Writ Petition and
Appellant in L.P.A.
--------------------------
Judgment. wp3943.11
CORAM : B. P. DHARMADHIKARI
& ARUN D.UPADHYE ,
JJ.
DATE : SEPTEMBER 07, 2017.
ORAL JUDGMENT : (Per : B.P. Dharmadhikari, J.)
Matters are part heard. In view of facts which have emerged
while Shri Wakil, learned Counsel for the petitioner was arguing Writ
Petition No. 3943/2011, we do not find it necessary and proper to
consider challenge in Letters Patent Appeal No. 306/2009, at this stage.
Parties agree that adjudication in that Letters Patent Appeal has to wait.
2. Facts necessary for present order can begin with narration of
order of termination dated 16.08.1996. The appellant in Letters Patent
Appeal and respondent no.2 in present Writ Petition (hereinafter referred
to as "the employer" for short), terminated petitioner Alka, by an order
dated 16.08.1996. Reasons therefor are again not relevant at this stage.
3. Petitioner Alka, approached School Tribunal in Appeal under
Section 9 of the Maharashtra Employees of Private School (Conditions of
Service) Regulation Act, 1977. The School Tribunal decided here appeal
on 14.12.2000 and found that being a permanent employee, she could not
have been terminated, except without holding proper departmental
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enquiry. Defence of employer that she did not possess necessary
qualifications prescribed in Schedule-B of Item 4 for the post of Craft
Teacher and, therefore, she did not attain permanency, was turned down.
4. Learned Single Judge in Writ Petition No. 582/2001, filed by
the employer, brought down the quantum of back wages to 25% and
directed respondent no.1 in Writ Petition to hold enquiry into the
qualification held by petitioner Alka. This judgment of learned Single
Judge has been questioned in Letters Patent Appeal. In Letters Patent
Appeal, this Court has granted stay to reinstatement. During pendency of
Letters Patent appeal, respondent no.1 has completed the exercise of
finding out the qualification of petitioner Alka and by order dated
21.01.2010, declared her not qualified.
5. Appellant employer in Letters Patent Appeal is relying upon
this finding to press the appeal.
6. However, Shri Wakil, learned counsel appearing on behalf of
the petitioner has invited our attention to apparent violation of principles
of natural justice. He has pointed out how various notices for hearing
were sent and the petitioner Alka was denied an effective opportunity to
bring on record equivalence or then to establish her identity.
Judgment. wp3943.11
7. Shri Khapre, learned Counsel appearing for respondent no.2 in
Writ Petition No. 3943/2011 has very fairly submitted that respondent
no.2 is not concerned with the orders or defects, if any, in the process of
verification undertaken by respondent no.1.
8. Ms. Mehta, learned A.G.P. attempted to justify the exercise.
She claimed that dates of hearing or changes therein were communicated
to the petitioner Alka from time to time and now on 18.01.2010, she was
aware of hearing scheduled on 21.01.2010. She submits that exercise was
undertaken by respondent no.1 because of directions of this Court in Writ
Petition and hence, there was anxiety to complete the same at the earliest.
9. Notices of hearing issued to petitioner are of different dates. It
appears that on 18.01.2010, she received two inconsistent notices. By a
communication dated 15.01.2010, served upon her on 18.01.2010, she
was supposed to appear at Pune on 19.01.2010. On very same date,
employer forwarded her a communication and pointed out that hearing
scheduled on 19.01.2010 was postponed to 21.01.2010. According to the
learned counsel for petitioner, because of this sudden development and as
her future was at stake, petitioner Alka got disturbed and in panic rushed
to the office of the Deputy Director of Education, Nagpur Division, Nagpur
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to enquire about correct position.
10. We find that this change in date or then date of hearing was
within knowledge of Education Officer at Bhandara. On 14.01.2010, that
officer wrote to employer and communicated date of hearing as
19.01.2010. Date of hearing was however, not communicated to Alka. It
appears that on 15.01.2010 itself Education Officer was informed by the
office of the Director of Education, that hearing would take place on
21.01.2010.
11. Thus, in the face of this development on 15.01.2010, petitioner
received a communication on 18.01.2010, which mentioned date of
hearing to be 19.01.2010 only. This communication is by her employer.
12. These developments therefore, give credence to her
apprehension and justify act of rushing to Nagpur to verify correct date.
13. It is on record that after going back, on 21.01.2010, she sent a
telegram to respondent no.1 at about 2 p.m. and informed her inability to
remain present.
14. It is in this backdrop that the impugned order came to be
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passed at Pune, after holding hearing on 21.01.2010. The order is
communicated to petitioner Alka with forwarding letter dated 03.03.2010.
Order does not carry any date.
15. Order does not make reference to telegram sent by the
petitioner Alka. It may therefore, have been passed immediately after
hearing or before receipt of the telegram.
16. In any case, when various communications about fixing date of
hearing and calling upon her to remain present at Pune, or then about
change in date of hearing are looked into, fact that notices were of too
short duration is clear. Petitioner was not given even breathing time to
prepare and to reach Pune. Notices were of at the most two days or three
days duration.
17. In this situation, we do not wish to go into the contention of
learned A.G.P. that petitioner Alka could have remained present on
21.01.2010. Learned Single Judge has on 25.03.2009, given time of two
months to respondent no.1 to complete the exercise. That time was
already over, and merely because there is a time bound direction or then
time has expired, principles of natural justice cannot be disregarded. It
appears that after noticing the fact that time has expired, office of
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respondent no.1 got panicky and issued notices one after the other to the
parties.
18. Considering the issue referred to the Director and its
importance and these developments, we quash and set aside the said
order communicated to Alka with forwarding letter dated 03.03.2010.
Proceedings for finding out correctness or otherwise and sufficiency of
educational qualification held by Alka, are placed back before respondent
no.1. We direct the parties to appear before respondent no.1 on
29.09.2017, and to abide by its further instructions in the matter. The
authority shall on that date or thereafter, as per its convenience proceed
to hear the parties and take suitable decision in terms of directions
contained in judgment of learned Single Judge dated 25.03.2009 in Writ
Petition No. 582/2001 in next three months.
19. Accordingly we allow Writ Petition No. 3943/2011. Rule is
made absolute in aforesaid terms with no order as to costs. Office to list
Letters Patent Appeal No. 306/2009 on 08.01.2018.
JUDGE JUDGE
Rgd.
