Bombay High Court
Mahaveer Pravin Jain vs Khandsh Education Society ... on 7 December, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
901 CIVIL APPLICATION NO.12660 OF 2021
IN WP/1750/2018 WITH WP/1738/2018 WITH
WP/1750/2018 WITH CA/12661/2021 IN WP/1738/2018
MAHAVEER PRAVIN JAIN
VERSUS
KHANDESH EDUCATION SOCIETY THROUGH ITS SECRETARY
JALGAON AND OTHERS
...
Advocate for Applicants/petitioners : Mr. Waramaa B. R.
AGP for Respondent/s-State : Mr. S. B. Yawalkar.
Advocate for Respondent Nos.1 &2 : Mr. S. P. Brahme a/w
Mr. M. S. Shah.
...
CORAM : RAVINDRA V. GHUGE, AND
S. G. MEHARE, JJ.
DATE : 07.12.2021
PER COURT :-
1. On 03.12.2021, we had passed the following order :
"1. In both these civil applications the applicants were
working as 'Junior Clerk' in Class-3 post and a 'Peon' in Class-4
post, respectively. The issue raised in their writ petitions is as
against the refusal of grant of approval by the concerned
authority on the ground that these two applicants were
appointed irregularly. The salary grants were therefore not
extended to these two employees and they were treated as being
in the employment of the Institutions, which posts were not
supported by grant-in-aid.
2. While dealing with the writ petitions filed by these two
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petitioners, challenging the refusal of approval, this Court
(Coram: Z. A. Haq and S. M. Gavhane, JJ.) admitted the
petitions vide order dated 24/02/2020 and directed the
Management as under :
"4. However, considering the facts of the case and
nature of the controversy, following order is passed :
[i] The Respondent-Management shall make
payment to the petitioner in the prescribed pay scale as
per the rules, for the post of Peon.
[ii] The arrears, after adjusting the amount paid,
shall be paid by the Respondent-Management by a
Demand Draft or by depositing the amount in the bank
account of the petitioner, till 15.05.2020.
[iii] The Respondent-Management shall continue to
pay the regular salary to the petitioner as per the
prescribed pay scale every month along with other
emoluments by depositing the amount in the bank
account of the petitioner.
[iv] The Respondent-Management is at liberty to
make claim for disbursement of the amount from the
department and if such claim is made, the department
shall take decision as per the rules."
3. The Management preferred review petitions, which were
considered by this Court and by order dated 24/09/2021, this
Court recorded in paragraph Nos.7 to 14 as under :-
"7. The contention is that the writ petitions have
been filed by the original appellants/ employees, who
were terminated employees of the review applicant/
Management. Both the parties settled the dispute before
the University Tribunal and the Management agreed to
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reinstate the employees without backwages on the
condition that they would be paid salary as per the pay
scale. The Management would seek reimbursement of
the amount of salary paid to the employees and if the
Education Department declines to sanction the payment
as per the pay scale, the Management would not be
responsible. Since the Education Department declined
to sanction salary grants as the employees, according to
the Education Department, were not appointed by
following the legal procedure, that the employees have
preferred Writ Petition Nos.1738/2017 and 1750/2018
for challenging the decision of the Education
Department dated 18.08.2017.
8. We find from the record that the learned counsel
representing the Management, when the interim orders
sought to be reviewed dated 24.02.2020 were passed, is
not the advocate, who has preferred these Review
Applications. When the writ petitions are pending and
the order sought to be reviewed is an interim order
passed therein, the party seeking review should have
practiced self imposed restraint and ideally should have
approached this Court through the same advocate.
Nevertheless, we have extensively heard the learned
advocate for the review applicants and we do not intend
to go into the issue as to why the Management has
opted for a new advocate. We leave this issue to the
good conscience and wisdom of the Review Applicants.
9. It is undisputed that the employees at issue were
being paid Rs.140/- per day, which is about Rs.4200/-
per month. Our judicial conscience is shocked by this
fact. We do not expect a human being to keep his mind,
body and soul together with a paltry amount of
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Rs.4200/- per month in which he and his family is to
survive.
10. The above aspect was canvassed before the
learned Bench which passed the interim orders dated
24.02.2020 and after considering this aspect, the
learned Bench has passed the interim orders.
11. The learned advocate for the review applicants/
Management submits that the directions at paragraphs
4(i) and 4(iv) need to be reviewed. The basis for such
contention is that the settlement between the employees
and the Management does not prescribe that the
Management should pay the pay scale to the employees
if the Education Department does not sanction the
prescribed pay scale. We do not find that the said
submission could be sustained for the reason that the
compromise between the employees and the
Management cannot create a financial burden on the
State Government, which is not a party to the
settlement between the two outside the Court. No such
settlement without participation of the Government,
could create a financial burden on the Government,
either directly or indirectly. In this backdrop and
keeping in view that an employee cannot be expected to
sustain himself and his family in Rs.4200/- per month,
we do not find that paragraph 4(i) deserves to be
reviewed.
12. Insofar as paragraph 4(iv) is concerned, the
State Government, which is not a party to the
settlement, is not obliged to grant funds for the reasons
which are already subject of challenge in the pending
Writ Petitions. The fact remains that the Management
has reinstated the employees so as to avoid the
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judgment of the University Tribunal and after the
employees waived the backwages which reduced the
financial burden on the Management. Disallowing of the
bills, would cast the burden on the Management to
make the payment of salary to the employees, who are
admittedly working with the Management and cannot
be expected to survive with Rs.4200/- per month.
13. In view of the above, paragraph 4(iv) of the
interim order does not call for review as no error or
mistake apparent on the face of the record is made out.
14. The Review Applications are, therefore,
rejected."
4. Paragraph 12 of the above reproduced order would
indicate that these applicants were earlier terminated and they
had approached the University Tribunal and vide judgment of
the learned University Tribunal, they were reinstated in
employment.
5. By these two civil applications, the applicants submit that
they have been terminated from employment by orders dated
01/11/2021, on the ground that they were appointed as daily
wagers, they were not occupying a post and as the Management
has to pay their salary from it's coffers, the Management cannot
afford to continue them in employment without salary grants
being extended to them.
6. We have perused the impugned order. Though the
applicants have not pleaded in their civil applications, we find
that the impugned order dated 01/11/2021 is based on a
Resolution passed by the Governing Council of the Management
on 01/11/2021 and the services of the applicants have been
terminated with retrospective effect from 31/10/2021. In the
light of the law laid down by this Court in Assaram Raibhah
6 901-CA-12660-21 & ors.odt
Dhage Vs. Executive Engineer & ors., 1989 (2) C.L.R. 331,
termination with retrospective effect is unforeseen and
impermissible in law. The Management can surely terminate an
employee by following due process of law as a Court cannot
prevent a Management from terminating services of an
employee by way of blanket relief.
7. The learned Advocate for the Management graciously
submits that he would take instructions from the Management
and make a statement on 07/12/2021.
8. In view of the above, we are placing these applications in
the 'passing orders' category, on 07/12/2021."
2. Today, the learned advocate for the Management submits
that the Management, while issuing the termination order to
the petitioners, committed an error in dating the termination
order as 31.10.2021. By a resolution dated 01.11.2021, it was
decided by the Management to terminate the services of the
petitioners. A specific date was not mentioned in the resolution
dated 01.11.2021. Hence, considering the order of this Court
dated 03.12.2021, the Management has recalled it's earlier
termination order dated 31.10.2021 and has passed a fresh
order dated 06.12.2021 making the termination effective from
08.12.2021. The said order has been forwarded through
R.P.A.D. as well as WhatsApp. The learned advocate for the
petitioners submits that they have received the WhatsApp
7 901-CA-12660-21 & ors.odt
message, but yet to receive copies of the order. He further
submits that now, in the Court Hall, he has received a copy of
the said order.
3. The learned advocate for the Management submits that
considering the peculiar situation as above, both the
petitioners have been paid their wages with effect from
01.11.2021 till 08.12.2021.
4. The learned advocate for the petitioners submits that
these petitioners have been terminated only to frustrate the
order of the High Court. The learned advocate for the
Management has pointed out from the termination order that
as approval is refused to these two employees and since they
have to be paid salary from the coffers of the Management, it is
not possible for the Management to sustain their private
services and hence their services have been terminated.
5. This Court had passed an order in the Writ Petition
taking into account the cause of action put forth. Both the
petitioners were challenging the refusal of their approval.
Since no Court can pass an order directing a Management
never to terminate an employee and as the law mandates that
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any protection to be granted to the employee could be in the
nature of 'not to terminate without following the due
procedure of law', any such termination would be an
independent cause of action. The Maharashtra Public
Universities Act provides powers to grant reliefs, to a Tribunal
under Section 83. An appeal can be filed before the Tribunal
under Section 81, challenging the dismissal, removal or
otherwise termination or compulsory retirement of an
employee or his reduction in rank, by the University or the
Management. Such appeal shall be maintainable before the
Tribunal.
6. Considering the above, these two Civil Applications are
disposed off.
7. We leave the petitioners / applicants at liberty to avail of
the remedy as is permissible under the Maharashtra Public
Universities Act.
8. Needless to state, since the petitions filed by these two
petitioners pertain to a challenge to the refusal of the
Education Officer in granting approval to their services, both
the petitions cannot be said to be infructuous and can be
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considered on their own merits.
9. As such, list both the petitions on 10.01.2022. If time
permits, the petitions would be considered finally at
admissions stage.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
...
vmk/-
