Sanjay S/O Babaji Urade vs The Director Of Ecuation, Higher ...
2021 Latest Caselaw 15462 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR

                       WRIT PETITION NO. 822 OF 2018

         Sanjay s/o Babaji Urade,
         Aged about 39 Years, Occ. Service,
         R/o. Hari Om Nagar, New Shende Lay
         out, Ram Nagar, Chandrapur 442401.                 PETITIONER

                ...Versus...

   1. The Director of Education, Higher
      Education Department, Maharashtra
      State, Central Building, Pune.

   2. Shree Niketan Bahu Uddeshiya
      Sanstha, Nagpur through its Secretary
      Shripad Anantrao Gandhe,
      R/o. 101, Rachana Meghsparsha
      Apartment, A-Wing, London Street,
      Bhende Layout, Near Shivaji Maharaj
      Statue, Sawavalami Nagar, Nagpur,
      440022.

   3. The Principal, Shree Niketan Kala
      Vanijya Mahavidyalaya, Plot no. 202,
      Tulsibagh Road, Reshimbagh,
      Nagpur- 440 009.                                     RESPONDENTS
 -----------------------------------------------
 Mr. P.S. Wathore, Advocate for the Petitioner.
 Ms. Tajwar Khan, AGP for the Respondent No.1.
 Mr. S.M. Vaishnav, Advocate for Respondent Nos. 2 & 3.
 -----------------------------------------------

                               CORAM : AVINASH G. GHAROTE, J.

DATED : 27th OCTOBER, 2021.

ORAL JUDGMENT :-

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                   Heard.

2. Rule, Rule made returnable forthwith. Heard finally

with the consent of the learned counsel for the rival parties.

3. The present petition challenges the judgment dated

07.03.2017 passed by the University and College Tribunal,

Nagpur, upholding the termination of the employment of the

petitioner, who was a probationer, at the end of the period of

the probation.

4. Mr. Wathore, learned counsel for the petitioner

submits, that under Statute 53(4) a requirement is there for

serving one month's notice before the termination upon the

probationer. He submits, that though the notice in this context is

dated 18.06.2011, the same has been posted on 23.06.2011,

and therefore, does not comply with the requirement of one

month's time. He further submits, that the termination is

malafide as the petitioner had challenged the action of the

management in not paying the salary for 15 months by way of

Writ Petition No. 5046/2011, which was decided on 23.04.2012

in favor of the petitioner. He therefore submits, that malice has

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to be read into the action of the respondents in the matter of

termination.

5. Mr. Vaishnav, learned counsel for respondent Nos. 2

& 3 submits, that the notice of termination dated 18.06.2011

was sought to be tendered by hand to the petitioner on

18.06.2011 itself, which was refused by the petitioner and due

to such refusal, the same was later on dispatched by post,

to substantiate which position, the respondents had placed on

record the affidavit of one Deepak Gondhalekar, the peon as

well as one Rekha Gulhane in-charge Principal of the college,

both of which indicate failure of attempts to serve the petitioner

with the notice dated 18.06.2011 on account of his refusal. He

submits, that there is nothing placed on record to controvert

this position on behalf of the petitioner. He further submits, that

merely because a litigation has been filed by an employee that

by itself, would not suffice to prove the plea of malice against

the institution. He further submits, that the petitioner, is already

working in Sardar Patel Mahavidyalaya Chandrapur, since

31.07.2013 and his such appointment has already been

approved by the Vice Chancellor of the Gondwana University,

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Gadchiroli on 09.12.2013. He therefore supports the impugned

judgment.

6. A perusal of Statute 53(4) indicates, that in case

services of a probationer are required to be terminated, one

month's notice has to be given. It is not disputed, that the notice

in the instant case is dated 18.06.2011. The impugned

judgment, in para 6 categorically renders a finding, that a peon

Deepak Gondhalekar as well as the in-charge Principal Rekha

Gulhane had sought to tender the notice by hand to the

petitioner, which was refused by him, considering which,

something had to be placed on record by the petitioner, to

controvert this position, which having not been done, I do not

find any material on record, to displace the above said finding.

Merely because, the postal receipt is dated 23.06.2011 that by

itself, would not mean that the notice was issued on that day,

more so in light of the aforesaid affidavits of Deepak

Gondhalekar and Rekha Gulhane. The contention in this regard,

therefore, will have to be rejected. The notice dated 18.06.2011,

would therefore comply with the requirements of Statute 53(4).

Insofar as, the plea regarding malice is concerned, a mere bland

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statement in the appeal, without anything else cannot indicate

the substantiating of the said plea. Plea of malice, cannot be

merely inferred from a bare statement in the appeal but would

require to be proved, which admittedly has not been done. The

filing of the litigation against an institution, cannot be a ground

to infer malice for if the same is done, than there will be a

malice attributable to each and every institution against which,

the employee is required to file a petition. This ground also,

does not merit consideration.

7. In view of the above discussion, I see no merit in

this petition, the same is accordingly dismissed.

8. Rule is discharged. No order as to costs.

( AVINASH G. GHAROTE, J.)

S.D. Bhimte