Bombay High Court
Tulsiram Kashinath Gaulkar vs Hinganghat Shikshan Sanstha Thr. ... on 19 September, 2017
Bench: B.P. Dharmadhikari
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
LETTERS PATENT APPEAL NO.483/2009
IN
WRIT PETITION NO.220/1999 (D)
APPELLANT : Tulsiram Kashinath Gaulkar
Aged about 62 years, Occ. Nil,
R/o Seloo (Murpad), Post Saoli,
Tq. Hinganghat, Dist. Wardha.
...VERSUS...
RESPONDENTS : 1. Hinganghat Shikshan Sanstha,
Gandhi Ward, Hinganghat, Through
its Secretary/President.
2. The Headmaster, Adarsha Madhyamik
Vidyalaya, Seloo (Murpad), Post Saoli,
Tq. Hinganghat, Dist. Wardha.
3. The Education Officer (Sec.)
Zilla Parishad, Wardha.
4. Presiding Officer, School Tribunal,
Nagpur (Chandrapur).
(Deleted as per Court's order dt. 10-11-09)
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Shri D.J. Deshpande, Advocate for appellant
Shri K.L. Dharmadhikari, AGP for respondent no.3
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CORAM : B.P. DHARMADHIKARI AND
ARUN D. UPADHYE, JJ.
DATE : 19/09/2017
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ORAL JUDGMENT (PER : ARUN D. UPADHYE, J.)
1. The appellant has challenged the judgment and order dated
7/7/2009 passed by the learned Single Judge in Writ Petition
No.220/1999 as well as the judgment dated 24/11/1998 passed by the
learned School Tribunal in Appeal No.STN-119/1996.
2. Brief facts of the case are as under :-
The appellant has contended that he was appointed as
Assistant Teacher on 1/7/1985 on temporary basis as he was not trained
qualified teacher, i.e., not passed B.Ed. at the time of appointment. He
has contended that his appointment was on the year-to-year basis.
According to him, for the year 1992-93 he was deputed for the course of
B.Ed. and completed the B.Ed. course in the year 1994 and he was again
appointed on probation period for two years w.e.f. 4/7/1994. According
to him, his work was satisfactory during the entire service tenure.
3. The appellant has further contended that respondent no.1
by order dated 21/3/1996 has terminated his services w.e.f. 30/4/1996.
He challenged the said order before the School Tribunal by way of appeal
bearing Appeal No.STN-119/1996. The learned School Tribunal however
dismissed his appeal by judgment and order dated 24/11/1998. The
appellant then challenged the said order before the learned Single Judge
by way of Writ Petition No.220/1999. The said writ petition was
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dismissed on 7/7/2009. The appellant therefore filed the present letters
patent appeal.
4. We have heard both the sides at length. Shri Deshpande, the
learned Counsel for the appellant has submitted that termination order
dated 21/3/1996 is stigmatic one. He pointed out paragraph 3 and 4 of
the termination order and submitted that several allegations are made
against the appellant that he has not answered to the letters of the
Management, illegally signed the muster register and misbehaved with
Headmaster of the school. He further submitted that in the said
termination order, it is illegally mentioned that his appointment was
against the reserved post. He further submitted that the School Tribunal
as well as the learned Single Judge have not considered the said fact and
dismissed the appeal as well as writ petition. He further submitted that
the termination order is not simpliciter termination but it is stigmatic and
punitive. He, therefore, prayed to allow the letters patent appeal by
setting aside both the orders of School Tribunal as well as learned Single
Judge and grant benefits to the appellant.
5. Shri Dharmadhikari, the learned Assistant Government
Pleader appearing for respondent no.3 has submitted that the termination
order only refers the conduct of the appellant and it is not stigmatic or
punitive. The School Tribunal as well as the learned Single Judge were
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right while dismissing the appeal as well as writ petition and hence, no
interference of this Court is called for.
6. After considering the submissions of respective parties, we
have perused the termination order dated 21/3/1996 as well as both the
impugned judgments. It is not disputed that the appellant was appointed
as a probationer and working with respondent nos.2 and 3. The
termination order dated 21/3/1996 runs in several pages, which indicate
that the appointment of appellant was against reserved category. He has
not answered to the show-cause-notices given by the Management. He
has kept his service-book with him illegally, when there was direction to
take entry of his absence in the service book. He has also illegally signed
the muster register and misbehaved with the Headmaster and thereafter
giving reference to paragraph 3 to 5 of the termination order, final order
is passed, terminating the services of the appellant w.e.f. 30/4/1996. The
only question to be considered is, whether the said termination order is
simpliciter termination or stigmatic one. Both the Courts below held that
it is not a stigmatic one.
7. The learned Counsel for the appellant has submitted that
the termination order is stigmatic one and in support of his submission,
he relied on the decision of the Hon'ble Supreme Court, reported at
(1999) 3 SCC 60 (Dipti Prakash Banerjee...Versus...Satyendra Nath
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Bose National Centre For Basic Sciences, Calcutta and others). He
pointed out paragraph 41 of the said judgment to us and submitted that
in the said case allegations against the employee were that he was
involving in the scuffle and obtaining false signatures. The Committee has
held that it must be stigmatic one. In the case in hand, allegations are also
made against the appellant that he has illegally signed the muster register
as well as misbehaved with Headmaster of the school and illegally kept in
his possession his service-book, though there were directions of taking
some entries in the service-book. When any other employer will peruse
these reasons he is bound not to employ appellant. Order therefore is
stigmatic and could not have been passed without holding the
departmental enquiry.
8. The learned Counsel for the appellant has also relied upon
Sub Rule 9 of Rule 9 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Rules, 1981. He submitted that the
Management would have invoked the provisions of Sub Rule 9 of Rule 9
of the M.E.P.S. Rules, 1981 to fill up the post against reserved category.
But instead of doing so, the Management has issued show-cause-notices
and passed termination order on this ground.
9. Considering the submissions of the learned Counsel for the
appellant and after going through the provisions of Sub Rule 9 of Rule 9
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of the M.E.P.S. Rules, 1981, it appears that the Management has not
taken any steps to fill up the post by taking recourse to Sub Rule 9 of
Rule 9 of the M.E.P.S. Rules, 1981. Facts show that appellant was
recruited against an open post as a general category candidate as per
roster point. He also got necessary approval from education department
accordingly. Thus, roster point already exhausted could not have been
reopened by his employer. This exercise appears to be only with a view to
victimize him. It is, therefore, clear that the Management could not have
taken steps to the prejudice of the appellant by saying that his
appointment was against reserved post and shown it as one of the
grounds in the said termination order. On that count also the termination
order is liable to be quashed and set aside.
10. The appellant is terminated w.e.f. 30/4/1996 and was out
of employment. He had worked with respondent nos.1 and 2 for more
than ten years, i.e., from 1/7/1985 to 30/4/1996. Though his
appointment is probationary one, respondent nos.1 and 2 should have
initiated the enquiry against him on alleged misconduct. However,
without holding an enquiry he was terminated. The appellant is now
superannuated.
11. The termination order passed by Management is stigmatic
and punitive and liable to be quashed and set aside. The impugned orders
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under challenge are also liable to be quashed and set aside. The appellant
will have to be reinstated w.e.f. 1/5/1996 in service with respondent
nos.1 and 2.
12. Considering the above facts and circumstances of the case,
we are of the view that respondent nos.1 and 2 as well as respondent no.3
are liable to pay 50% back wages to the appellant from the date of his
termination till his superannuation. Hence, we pass the following order :-
O R D E R
(i) Letters Patent Appeal is partly allowed. The
termination order dated 21/3/1996 is quashed and set aside.
(ii) The judgment of the School Tribunal dated
24/11/1998 in Appeal No.STN-119/1996 as well as the judgment and
order passed by the learned Single Judge dated 7/7/2009 in Writ Petition
No.220/1999 are quashed and set aside.
(iii) The appellant is reinstated w.e.f. 1/5/1996
with respondent nos.1 and 2.
(iv) The appellant is entitled to 50% back wages
from the date of his termination till his superannuation till 2005.
(v) Respondent nos.1 and 2 are directed to pay
25% back wages to the appellant and respondent no.3 is directed to pay
25% back wages to appellant. Respondent nos.1 to 3 are directed to pay
the back wages within four months.
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With these directions, this letters patent appeal is
disposed of. There shall be no order as to costs.
JUDGE JUDGE
Wadkar
