Manojkumar Shriram Patil vs Dhangai Vidhayak Karya Mandal And ...
2018 Latest Caselaw 312 Bom

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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                      WRIT PETITION NO. 5635 OF 1998


          Shri Manojkumar Shriram Patil,
          Age- 35 years, Occu. Service,
          R/o. At and Post Mhasadi,
          Taluka Sakri, Dist. Dhule.                       ...Petitioner.

                   Versus

 1.       Dhangai Vidhayak Karya Mandal's
          Shri Chilu Dhavlu Deore
          Madhyamik Vidyalaya, Mhasadi,
          Taluka Sakri, District - Dhule.

 2.       Shri Chilu Dhavlu Deore
          Madhyamik Vidyalaya, Mhasadi,
          Taluka Sakri, District - Dhule.

 3.       Shri Satish Atmaram Deore,
          Age- 29 years, Occu. Head Master,
          Shri Chilu Dhavlu Deore
          Madhyamik Vidyalaya, Mhasadi,
          Taluka Sakri, District - Dhule.               ...Respondents.


                                  WITH
                      WRIT PETITION NO. 1892 OF 1998


 1.       Dhangai Vidhayak Karya Mandal's
          Shri Chitu Dhavlu Deore
          Madhyamik Vidyalaya, Mhasadi,
          Taluka Sakri, District - Dhule.

 2.       Shri Chitu Dhavlu Deore
          Madhyamik Vidyalaya, Mhasadi,
          Taluka Sakri, District - Dhule.

 3.       Shri Satish Atmaram Deore,
          Age- 29 years, Occu. Head Master,
          Shri Chitu Dhavlu Deore




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          Madhyamik Vidyalaya, Mhasadi,
          Taluka Sakri, District - Dhule.                                ...Petitioners.

                   Versus

          Shri Manojkumar Shriram Patil,
          Age- 35 years, Occu. Service,
          R/o. At and Post Mhasadi,
          Taluka Sakri, Dist. Dhule.                                     ...Respondent.


          Advocate for Petitioner : Shri Aditya Sikchi
                                      h/f.  Shri S.P. Shah. 
          Advocate for Respondent : Shri S.K. Shinde.


                                             CORAM : RAVINDRA V. GHUGE, J.

Dated : 11th January, 2018

ORAL JUDGMENT :

1. The petitioner in the first petition is the original appellant

before the School Tribunal in Dhule Appeal No. 56/1994. The

petitioner in the second petition, who is respondent No. 1 in the first

petition, is the Management/Employer in relation to the appellant.

2. The appellant has challenged the judgment of the School

Tribunal dated 02/08/1997 to the extent of he being denied

continuity in service and back wages. The Management has filed the

second petition challenging the same judgment to the extent of the

direction issued by the Tribunal to the Management to reinstate the

appellant instantly.

3. No interim relief was granted to the appellant. Interim relief

was granted to the Management by staying the impugned judgment,

if the impugned order was not already implemented. Subsequently,

on 02/08/2001, this Court has declined interim relief to the

Management, as the appellant was already reinstated in service and

was working.

4. I have considered the strenuous submissions of the learned

advocate for the respective sides.

5. The controversy between the appellant and the Management

has been reduced to the issue of whether continuity in service can be

granted to the appellant as the appellant, who is present in the

Court, has instructed the learned advocate to make a statement that

he is waiving the back wages if the Management withdraws its

petition. Learned counsel for the Management submits on

instructions that the appellant has been working for the last about

21 years, after he was reinstated in 1997 and he is about 56 years of

age today, with less than two years for retirement.

6. Notwithstanding the above statement made, I have perused

the impugned judgment and the record available which does not

indicate in any manner that the Management has followed the MEPS

Rules 1981 in arriving at a presumption that the appellant has

abandoned employment. It was proved before the Tribunal and the

record establishes that the appellant was working from 01/08/1990

till 19/06/1994 as an Assistant Teacher, prior to his termination, for

four years.

7. It is settled law that when refusal to allot work, which

amounts to termination, is held to be illegal, reinstatement with

continuity of service is normally granted. It is only in a case of a

short spell of employment like one year or two years which is

followed by a long duration of unemployment like 15/20 or 25

years, then the Hon'ble Apex Court has ruled in the following

cases that compensation in lieu of reinstatement and continuity

of service would be practical and pragmatic :-

1. Assistant Engineer, Rajasthan State Agriculture Marketing

Board, Sub-Division, Kota Versus Mohan Lal [2013 LLR

1009],

2. Assistant Engineer, Rajasthan Development Corporation

and another Versus Gitam Singh [(2013) 5 SCC 136],

3. BSNL Versus Man Singh [(2012) 1 SCC 558],

4. Jagbir Singh Versus Haryana State Agriculture Marketing

[(2009) 15 SCC 327] .

8. In the instant case, the appellant, after putting in about four

years of employment, succeeded before the School Tribunal on

2/08/1997. He was reinstated within a short period thereafter and

has been working for more than 21 years. Paragraph No. 10 of the

impugned judgment which deals with the aspects as to whether the

appellant had abandoned employment or the Management had

refused work, suffers from several grammatical mistakes. I am of

the view that after reading the entire paragraph No. 10, which runs

into above four pages, the meaning that can be drawn is that the

Management could not support its stand of abandonment of

employment against the appellant. So also, since the appellant was

deemed permanent under Section 5 (2) MEPS Act 1977, unless such

an employee is absent continuously for the period of three years,

there can be no presumption of abandonment. So also, while

concluding paragraph No. 10, the Tribunal has concluded that

various attempts made by the appellant to report for duties shows

that he was prevented from reporting for duties and therefore, it can

be treated as being otherwise termination. Hence, the moment the

Tribunal concludes that the appellant was terminated by

Management, the defence of abandonment fails as abandonment is

an exception to termination.

9. The petitioner/appellant is about 56 years of age. In about

two years, he would retire from employment. Though, he has

claimed back wages for the period from 19/06/1994 till

13/10/1997, placing reliance upon the judgment of the

Hon'ble Apex Court in the matter of Deepali Gundu Surwase

Versus Kranti Junior Adhyapak Mahavidhyalaya (D.Ed) and others

[(2013) 10 SCC 324)], it is stated that he is giving up his claim for

back wages.

10. In this backdrop, at the stroke of retirement his service from

1990 till 1994 with the break thereafter on account of the illegal

termination, would deprive him of all retiral benefits for a period of

almost 7 years. Taking into account all the above factors, I deem it

appropriate to grant continuity to the appellant from the date of his

termination 19/06/1994 till the date of his actual retirement

13/10/1997.

11. As such, Writ Petition No. 5635/1999 (Old Bombay No.

5614/1997) filed by the appellant/employee is partly allowed. The

impugned judgment of the School Tribunal dated 02/08/1997, is

modified to the extent of Clause (2) by adding the word "continuity

in service from the date of his termination till his reinstatement".

Rule is made partly absolute accordingly.

12. Consequentially, Writ Petition No. 1892/1998, filed by the

Management is dismissed. Rule is discharged.

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