Bombay High Court
Jagtrao Prataprao Patil vs The State Of Maharashtra And ... on 22 December, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
3237.20wp
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
902 WRIT PETITION NO.3237 OF 2020
Mr Jagtrao s/o Prataprao Patil,
Age: 54 years, Occu: Peon,
National Urban Livlihood Mission,
Corporation Jalgoan,
R/o. At Post Ningone, Bk, Post Taskheda,
Tq. Amalner, District Jalgaon ...PETITIONER
VERSUS
1. The State of Maharashtra,
Through it's Secretary
Urban Development Department,
Mantralaya, Mumbai-32
2. The Jalgaon Municipal Corporation,
Jalgaon, District Jalgaon,
Thr. It's Commissioner
3. The Commissioner,
Jalgaon Municipal Corporation,
Jalgaon, District Jalgaon ...RESPONDENTS
...
Mr S. R. Sapkal, Advocate for petitioner;
Mr S. G. Sangle, A.G.P. for respondent No.1;
Mr V. B. Patil, Advocate for respondent Nos.2 & 3
CORAM : RAVINDRA V. GHUGE
AND
S. G. MEHARE, JJ.
DATE : 22nd December, 2021
ORAL JUDGMENT (Per : Ravindra V. Ghuge, J.)
1. Rule. Rule made returnable forthwith and heard finally by
the consent of the parties.
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2. By this petition, the petitioner has put forth prayer clauses
(B) and (C), which read as under :-
"B) To quash and set aside termination order dated
12.10.2017 passed by the commissioner municipal
corporation Jalgaon and order dated 12.04.2018 passed
by the Deputy commissioner of General Administration
Municipal Corporation Jalgoan, by issuing appropriate
writ or order or directions in the nature of writ.
C) The respondents may kindly be directed to
reinstate the petitioner in service with all consequential
benefits like continuity of service and back wages."
3. We have considered the extensive submissions of the
learned Counsel for the respective sides. With their assistance, we
have perused the petition paper-book.
4. Shri. Patil, the learned Advocate representing respondent
Nos.2 and 3 - Corporation, has vehemently opposed this petition
contending that the petitioner was a 'Watchman' appointed on
16/10/1991. He is a workman under Section 2(s) of the Industrial
Disputes Act, 1947. The Corporation is an industry under Section
2(j) of the Industrial Disputes Act. The petitioner should have
approached the Labour Court. Instead, he has approached this
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Court. Moreover, for challenging the order dated 12/10/2017,
vide which he was dismissed from service, he was before the
Standing Committee of the Corporation, which rejected his appeal
on 09/03/2018. He has approached this Court on 21/02/2020,
after a delay of almost two years.
5. The undisputed factors before us are crystal clear. The
petitioner had joined as a 'Watchman' on 16/10/1991. He was
promoted as a 'Peon' on 03/04/2010. On 12/10/2017, the
Commissioner, Municipal Corporation issued him an order of
termination. His appeal was rejected by the Standing Committee
on 09/03/2018.
6. A single glance at the order of termination, dated
12/10/2017, indicates that the petitioner has been levelled with
several allegations, none of which have been proved by
conducting a departmental enquiry. The two paragraphs below
Clause-7 in the impugned order would indicate that there is a long
list of allegations, which have been levelled upon him. He was
issued with a simple show cause notice, as to why his service
should not be dismissed, vide communication dated 04/09/2017.
It requires no debate in the light of the crystallized position of law
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that a permanent employee cannot be terminated or dismissed
without conducting a departmental/domestic enquiry and without
charges being proved against him. As such, the impugned
termination order is unsustainable.
7. Had the petitioner approached the Labour Court, the things
would have been different in the light of the law laid down by the
Hon'ble Apex Court (Five Judges Bench) in case of Karnataka
State Road Transport Corporation Vs. Laxmidevamma (Smt)
& another, 2001 5 Supreme Court Cases 433.
8. We have heard the learned Counsel for the respective sides
on the grant of backwages. The learned Advocate for the
Corporation submits on instructions, that the petitioner has caused
an undue delay in approaching this Court. From 09/03/2018,
when his appeal was rejected by the Standing Committee, he
should have approached before this Court immediately. He has
filed the petition on 21/02/2020. He, therefore, submits that no
backwages should be granted to the petitioner.
9. We are of the view that had the petitioner approached the
Labour Court, he would have been entitled to a limitation period
of 90 days from 09/03/2018. As such, his request for backwages
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could be considered from 12/10/2017 to 09/06/2018. Having
approached this Court on 21/02/2020, his request for backwages
could be denied from 09/06/2018 till 21/02/2020.
10. On the quantum of backwages, the petitioner prays for
100% backwages.
11. Having considered the facts and circumstances of the case
and having noted that the Corporation is always in financial
stringency, we find that equities would be balanced if we grant
50% backwages, except for the period from 09/06/2018 till
21/02/2020.
12. Before parting with this judgment, we deem it appropriate
to record that as the termination order of the petitioner is being set
aside on account of no enquiry having been conducted, we cannot
fetter the rights of the employer in initiating an enquiry as is
prescribed in law. We would, therefore, leave it to the
Corporation to initiate such enquiry by issuance of a proper
charge-sheet, as is permissible in law, provided such action is
initiated within three three months from today.
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13. In view of the above, this petition is allowed in terms of
prayer clause (B). The petitioner shall be entitled for 50%
backwages from 12/10/2017 till 09/03/2018 and from 21/02/2020
till the date of his reinstatement, which shall occur, on or before
the 10th day of January 2022. After the petitioner is reinstated in
service on or before 10/01/2022, the respondent-Corporation
would be at liberty to initiate the disciplinary proceedings against
him, if so advised, subject to the condition set out hereinabove.
14. Rule is made absolute in the above terms.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
sjk
