The President Khandesh College ... vs Vasudeo Bhaskar Bhirud And Others
2021 Latest Caselaw 9407 Bom

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                       WRIT PETITION NO. 4256 OF 2020

The President
Khandesh College Education Society
& another                                                     Petitioners

       Versus

Vasudeo s/o Bhaskar Bhirud & others                           Respondents

Mr. S.R. Patil, Advocate for the petitioners.
Mr. S.N. Kendre, AGP for respondent No. 3.
Mr. Khanapure, Advocate          holding for Mr. Ajit Gaikwad-Patil,
Advocate for respondent No. 1.
Mr. A.B. Girase, Advocate for respondent No. 2.

                                  CORAM : M.G. SEWLIKAR, J.

                                  DATE    : 17th July, 2021.


PER COURT :

1. This petition under Article 227 of the Constitution of

India is fled challenging the order passed by the University and

College Tribunal, Aurangabad, on 30.01.2020 on delay condonation

application by which, the learned Tribunal condoned the delay in

preferring appeal against the oral termination of respondent No. 1.

2. Factual matrix leading to this petition is that respondent

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No. 1 was appointed as Assistant Professor with petitioner -

institution on 10th November, 2010. Since his work was not

satisfactory, during the period of probation, respondent No. 1 came

to be terminated orally. It is the case of respondent No. 1 that he

kept on visiting the Management with a request to reinstate him.

Almost one and half years were lost in this persuasion. It is his

case that the petitioner kept on assuring him that he would be

reinstated in service. Thereafter, he approached the Grievance

Committee. The Grievance Committee observed that injustice was

done to respondent No. 1 and directed the petitioner-institution to

pay difference in salary to respondent No. 1 from the date of joining

the service. Since the directions of the Grievance Committee were

not complied with, respondent No. 1 approached this Court by fling

Writ Petition No. 4041/2016 which was disposed of on 26 th

September, 2018. Thereafter, respondent No. 1 preferred appeal

before the University and College Tribunal. Delay of 5 years, 11

months and 4 days was committed in preferring appeal. The learned

Tribunal, after hearing all the parties, condoned the delay observing

that respondent No. 1 has made out a suffcient case for condonation

of delay. It also observed that wrong advice given by counsel is

suffcient cause for condonation of delay. This order is impugned in

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this writ petition.

3. Shri Sandesh Patil, learned counsel for the petitioner

vehemently submitted that the Tribunal has committed gross error in

allowing the application for condonation of delay. He argued that

respondent No. 1 was very well aware that his services were

terminated but he did not prefer appeal within the prescribed period

of limitation. He submitted that for one and half years, respondent

No. 1 remained silent. Thereafter he approached the Grievance

Committee and thereafter he approached this Court and in the end,

he challenged the order of termination before the Tribunal. He

submitted that this shows that respondent No. 1 was all along

negligent in assertion of his rights. He submitted that law protects

the diligent and not the negligent. He further submitted that

respondent No. 1 did not receive a wrong advice but he consciously

did not challenge his termination before the Grievance Committee.

He did not raise any objection about his termination either before

Grievance Committee or before this Court. But he made monetary

claim. This shows that despite having been fully aware of his oral

termination, he did not prefer proper remedy as is permissible in law.

Therefore, the learned Tribunal committed gross error in allowing the

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application for condonation of delay. He placed reliance on

judgments in the matter of D. Gopinathan Pillai vs. State of Kerala

and another reported in 2007 DGLS (Soft) 50 : 2007 AIR (SCW) 4713,

Maqbool Fatma vs. Deputy Custodian General reported in 1996

DGLS(Soft) 1005 : 1996(5) SCC 493, Anmol Devaji Goswami vs.

Nagsen Shikshan Sanstha, Nagpur reported in 2021(1) ALL MR 544.

4. Shri Khanapure, learned counsel for respondent No. 1

submitted that initial one and half years were lost as respondent No.

1 kept on meeting the Management for his reinstatement. He was

assured by the Management that he would be reinstated in service.

He submitted that respondent No. 1 preferred the remedies as were

advised to him by his counsel. He submitted that if respondent No. 1

had been advised in the beginning itself that the appropriate remedy

is to prefer appeal before University and College Tribunal, he would

have done so. Because of wrong advice, he preferred wrong remedies.

Therefore, the learned Tribunal was perfectly justifed in holding that

wrong advice is also a suffcient cause. He, therefore, supported the

order of the learned Tribunal.

5. Shri Girase, learned counsel for respondent No. 2 relied

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on the judgment in the case of Rafq and others vs. Munshilal and

others reported in AIR 1981 SC 1400, Lachi Tewari and others vs.

Director of Land Records and others reported in AIR 1984 SC 41,

Tahil Ram vs. Ramchandra and others reported in AIR 1993 SC 1182

and Malkiat Singh vs. Joginder Singh reported in AIR 1998 SC 258

and submitted that the Honourable Supreme Court also has held

that client should not suffer for the faults of the advocate.

6. Perused the papers. All the facts are admitted.

Respondent No. 1 was terminated from service in the year 2012.

Admittedly, his termination was oral. There is no provision by which

an employee can be orally terminated by an educational institution.

Therefore, there appears substance in the contention of respondent

No. 1 that he kept on approaching the petitioner for his reinstatement

in service and that petitioner assured that some decision favourable

to respondent No. 1 would be taken. Thereafter, respondent No. 1

approached the Grievance Committee and thereafter he approached

this Court by fling aforesaid writ petition. He did not challenge his

termination before both the forums. Chronology of these events show

that he was not properly advised by his Advocate. Learned counsel

Shri Patil argued that respondent No. 1 did not specifcally contend

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in the application for condonation of delay that he was wrongly

advised and on that count, he did not approach the University and

College Tribunal within the prescribed period of limitation. This

submission cannot be accepted. The record speaks for itself.

Respondent No. 1 should have been advised in the beginning itself to

approach the University and College Tribunal instead of Grievance

Committee and this Court. If he had been correctly advised, he

would not have wasted time in preferring wrong remedies. Therefore,

the learned Tribunal did not commit any error in observing that

because of wrong advice, he did not approach the Tribunal. No fault

can be found with this conclusion.

7. In the case of D. Gopinathan Pillai vs. State of Kerala

(supra) delay of 3320 days was committed. The Honourable Supreme

Court observed that the Court cannot condone delay only on

sympathetic ground without assigning any reasonable, satisfactory,

suffcient and proper reason. This is not the factual situation in the

case at hand. The learned Tribunal has given cogent reasons.

8. In the case of Maqbool Fatma vs. Deputy Custodian

General (supra) the facts were that revision was preferred after 14

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years by which time the person in possession had perfected the title

by prescription. Therefore, the Honourable Supreme Court refused

to condone the delay as the party committing delay was not diligent.

This decision of the Honourable Supreme Court has no application to

facts of the case at hand. In the case at hand, respondent No. 1 has

assigned suffcient cause for the delay.

9. In the case of Anmol Goswami vs. Nagsen Shikshan

Sanstha (supra), the appellant was dismissed from service. Yet he

pursued several other remedies pertaining to infghting in

management of Education society. It was observed that the appellant

knowingly and consciously did not challenge dismissal order. The

distinguishing fact is that appellant Anmol did not challenge his

termination before the appropriate forum consciously. In paragraph

No. 16 of the judgment it was observed thus:-

"16. The above factor therefore indicates that the appellant has consciously and thoughtfully not challenged his dismissal order dated 14.5.2015 though he had made a statement, as noted above, in the frst petition in paragraph 34 that he would be challenging it separately. This one factor indicates that Section 14 of the Limitation Act would not be applicable.

The above observations clearly show that the petitioner

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had made a statement that he would be challenging his dismissal

separately. In the case at hand, nothing is brought on record to

indicate that respondent No. 1 did not challenge his termination

consciously. On the contrary, record indicates that he did not

challenge his termination before the appropriate forum because of

wrong advice by his counsel.

10. Learned counsel Shri Patil placed reliance on judgments

of the Honourable Supreme Court in the case of Rajesh Kumar

Srivastava vs. State of Jharkhand and others reported in (2011) 4

Supreme Court Cases 447 and B.T. Krishnamurthy vs. Sri

Basaveswara Education Society, reported in (2013) 4 SCC 490 for the

proposition that oral termination is permissible. In the case of

Rajesh Kumar Srivastava (supra), a Munsif was discharged by an

order in writing. Therefore, it is not a case of oral termination.

Therefore, this case has no application to the facts of the case at

hand. In the case of B.T. Krishnamurthy (supra), the petitioner

therein was appointed orally. There was no appointment order in

writing as he was temporary/part time lecturer in the college.

Therefore, he was asked not to come which was treated as oral

termination. In the case at hand, appointment order was issued by

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the petitioner appointing respondent No. 1 as a lecturer. Therefore,

facts of this case also do not apply to the facts of the case at hand.

11. In this view of the matter, the learned Tribunal was

perfectly justifed in observing that because of wrong legal advice,

respondent No. 1 committed delay in preferring the appeal. Petition

is, therefore, bereft of any merit. Hence, it is dismissed with no order

as to costs.

( M. G. SEWLIKAR ) Judge

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