Bhaskar Shankarrao Gaikwad vs Mah. State Electricity ...
2022 Latest Caselaw 10089 Bom

WP 644-2015                                   1                       Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.
                  WRIT PETITION NO. 644 OF 2015
Bhaskar Shankarrao Gaikwad,
aged about 56 years,
R/o Plot No. 57, Sai Nagar,
Dighori, Umred Road, Nagpur.
                                                                    PETITIONER
                                .....VERSUS.....
1.   Maharashtra State Electricity Distribution Company Limited,
     through its Executive Director,
     "Prakashgarh" 4th Floor,
     Plot No. G-9, Station Road,
     Bandra (East), Mumbai - 400051.

2.   Executive Engineer,
     Maharashtra State Electricity Distribution Company Limited,
     O & M Division, Wardha.
                                                              RESPONDENT S

              Shri Sachin Khandekar, Advocate for the petitioner.
               Shri S.V. Purohit, Advocate for the respondents.


CORAM : A. S. CHANDURKAR AND URMILA JOSHI - PHALKE, JJ.

DATE : 3/10/2022 ORAL JUDGMENT (PER : A.S. CHANDURKAR, J.)

The challenge raised in this Writ Petition is to the order of

termination dated 18/11/2008 passed by respondent No.1 thereby

terminating the petitioner's services on the post of Lower Division Clerk. It

is prayed that after setting aside the order of termination, the petitioner

be notionally reinstated and granted arrears of salary till 28/2/2016

which is the date of his superannuation from service.

WP 644-2015 2 Judgment

2. The brief facts relevant for considering the aforesaid prayers

are that the petitioner was appointed on the post of Lower Division Clerk

on 22/4/1994. During the course of service, he was placed under

suspension on 14/12/2007 on account of commission of alleged

misconduct. In the order of suspension, it was stated that the petitioner

would be paid the subsistence allowance in terms of Regulation 88(c)(3)

of the Maharashtra State Electricity Distribution Company Employees

Regulations, 2005. However, shortly thereafter, on 29/1/2008, the

petitioner was issued a communication in which it was stated that the

respondents intended to proceed against the petitioner under Regulation

90(c) and (d) thereof. Being aggrieved by the said communication, the

petitioner filed a complaint before the Labour Court, Wardha challenging

the same. In those proceedings, he filed an application below Exhibit 2

seeking grant of an interim relief. The Labour Court on 17/11/2008

refused to grant any interim relief. Shortly thereafter, on 18/11/2008, the

services of the petitioner came to be dismissed. In the meanwhile, the

Industrial Court disposed of the Revision Application preferred by the

petitioner challenging the order dated 17/11/2008 passed by the Labour

Court on 20/7/2012, by observing that the services of the petitioner had

been terminated. According to the petitioner, on account of financial

reasons, he did not take any further steps in the matter nor did he keep

track of the complaint filed before the Labour Court. The validity of WP 644-2015 3 Judgment

Regulation 90 was the subject matter of challenge in Praveen s/o

Prabhakarrao Jawale Vs. Maharashtra State Electricity Distribution

Company Ltd. and another [Writ Petition No. 3126/2011 decided on

22/8/2013] reported as 2014(1) Mh.L.J. 313 before the Aurangabad

Bench of this Court. The Division Bench on 22/8/2013 held that the

language in which Regulation 90 was drafted clearly indicated

arbitrariness and hence proceeded to strike down Regulation 90. Based

on this adjudication, the petitioner on 21/4/2014 and 1/11/2014 made

representations to the respondents praying that he may be reinstated in

service since the action taken against him was under Regulation 90 and it

had been struck down. There being no response to the said

representations, the petitioner filed the present Writ Petition on

19/1/2015.

3. The learned Counsel for the petitioner submitted that the

petitioner's services were terminated on 18/11/2008 based on Regulation

90. Since the said Regulation had been struck down, the petitioner ought

to have been granted consequential relief of reinstatement along with

backwages. The action held against the petitioner was thus without any

legal basis and there was no justification on the part of the respondents in

not reinstating the petitioner. It was further submitted that during the

pendency of the present proceedings, the petitioner came to be acquitted WP 644-2015 4 Judgment

in criminal proceedings being Spl. (ACB) Case No. 7/2009 decided on

28/6/2016. Since the petitioner was acquitted, there was no reason

whatsoever to deny him the relief as prayed for. Since the petitioner had

attained the age of superannuation on 28/2/2016, he ought to be

notionally reinstated and be granted all consequential benefits.

4. The learned Counsel for the respondents opposed the

aforesaid submissions. According to him, the petitioner was not entitled

for any relief whatsoever since he had accepted the order of termination

dated 18/11/2008. The petitioner did not challenge the order of

termination and only after the judgment of this Court in Praveen

Prabhakarrao Jawale (supra) the petitioner took steps to seek

reinstatement. The conduct of the petitioner dis-entitled him to any relief

whatsoever since the order of termination was never challenged by the

petitioner. It was submitted that it was open for the petitioner to have

amended the complaint that he had filed before the Labour Court but the

petitioner did not choose to do so. Placing reliance on the decisions in i)

B.L. Sreedhar And Others Vs. K.M. Munireddy (Dead) And Others

[(2003) 2 SCC 355]; ii) K. Ethirajan (Dead) By LRs Vs. Lakshmi And

Others [(2003) 10 SCC 578]; and iii) National Insurance Co. Ltd. Vs.

Mastan & Anr. [AIR 2006 SC 577] it was submitted that the petitioner

was not entitled to any relief whatsoever. It was urged that on the WP 644-2015 5 Judgment

principle of estoppel and by applying the doctrine of election, no relief

was liable to be granted to the petitioner. It was thus submitted that the

Writ Petition was liable to be dismissed.

5. Having heard the learned Counsel for the parties at length

and having perused the documents placed on record, we find that the

petitioner's conduct of not challenging the order of termination dated

18/11/2008 for a period of almost seven years dis-entitles him to grant of

any relief whatsoever. It is seen from the record that though the petitioner

had initially sought to challenge initiation of summary proceedings by

filing Complaint (ULP) No. 20/2008, he had not specifically challenged

the order of termination dated 18/11/2008. The petitioner could have

either amended the pending complaint or could have filed fresh

proceedings for challenging the same. The Revision Application preferred

by the petitioner challenging refusal of interim relief by the Labour Court

came to be disposed of on 20/7/2012 since the services of the petitioner

were already terminated. The petitioner thereafter did not take any steps

whatsoever for all this period. It is only after the judgment of this Court in

Praveen Prabhakarrao Jawale (supra) that he sought to make

representations on 21/4/2014 and 1/11/2014. The averments in

paragraph 14 of the Writ Petition that were relied upon by the learned

Counsel for the petitioner to indicate the reasons for the petitioner's WP 644-2015 6 Judgment

inaction also do not support the petitioner's case in explaining his

inaction for a period of almost seven years. From the petitioner's conduct

of remaining silent after issuance of the order of termination dated

18/11/2008 dis-entitles him to any relief whatsoever in these facts.

6. Though it was urged by the learned Counsel for the petitioner

that the respondents had taken remedial steps in respect of some

employees after the judgment of this Court in Praveen Prabhakarrao

Jawale (supra), it is seen that such remedial steps have been taken only in

those proceedings that were pending when Regulation 90 was struck

down. In the present case, when the services of the petitioner were

terminated on 18/11/2008, no action under Regulation 90 against the

petitioner was pending. Hence that aspect also does not come to the aid

of the petitioner.

The subsequent acquittal of the petitioner in the criminal

proceedings also cannot give a fresh cause of action to the petitioner to

seek reinstatement. It would have been a different matter had he

challenged the order of termination dated 18/11/2008 shortly thereafter.

In those circumstances, the petitioner could have relied upon the

additional factor of his acquittal in the criminal proceedings.

WP 644-2015 7 Judgment

7. We thus find from the record that the conduct of the

petitioner has dis-entitled him to any relief whatsoever notwithstanding

the fact that Regulation 90 has been struck down as being arbitrary. The

inaction of the petitioner from 18/11/2008 when the petitioner's services

were terminated till 19/1/2015 when the present Writ Petition was filed

has not been satisfactorily explained.

8. Thus on account of inordinate delay and latches on part of

the petitioner, we do not find him entitled to any relief whatsoever. The

Writ Petition stands dismissed. Rule is discharged with no order as to

costs.

                                    (URMILA JOSHI - PHALKE, J.)          (A.S. CHANDURKAR, J.)

                         SUMIT




Digitally signed bySUMIT CHETAN
AGRAWAL
Signing Date:07.10.2022 10:16