Bombay High Court
Desale Sharad Rambhau vs The President, Kavivarya ... on 31 March, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
2023:BHC-AS:9965-DBDesale Sharad Rambhau v The President, Kavivarya Kusumagraj Adivasi Sudhar
Samiti, Nashik & Ors
903-aswp-713-2010-J.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 713 OF 2010
WITH
CIVIL APPLICATION NO. 820 OF 2019
IN
WRIT PETITION NO. 713 OF 2010
Desale Sharad Rambhau,
Aged 26 years, residing at Post Kasare,
Taluka Sakri, District Dhule ...Petitioner
~ versus ~
1. The President, Kavivarya
Kusumagraj Adivasi Sudhar
Samiti, Nashik,
having address at & post Nirgude,
Taluka Peth, District Nashik.
2. Loknete Kailasvasi Sitaram
Bhoye,
Primary Aashram School, Pimpal Vati
Post Nachlondi, Taluka Peth,
District Nashik.
3. The Project Officer,
Integrated Tribal Department
Project, Nashik.
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Desale Sharad Rambhau v The President, Kavivarya Kusumagraj Adivasi Sudhar
Samiti, Nashik & Ors
903-aswp-713-2010-J.doc
4. The Commissioner,
Tribal Development Department,
Adivasi Vikas Bhavan, Nashik.
5. The Secretary,
Writ to be served upon the
Government of Maharashtra,
Social Welfare & Tribal Development
Department, Mantralaya,
Mumbai 400 032. ...Respondents
A PPEARANCES
for the petitioner Ms Kumud A Bhatia.
for respondents Mr Sanjeev B Deore, i/b Suchita J
nos. 1 & 2 Pawar.
for respondents Ms PN Diwan, AGP.
nos. 3 to 5-state
CORAM : G.S.Patel &
Neela Gokhale, JJ.
DATED : 31st March 2023
ORAL JUDGMENT (Per GS Patel J):-
1. Rule was issued on 4th February 2010. On 24th March 2023,
we were constrained to make the following order:
"1. The Petition was admitted on 10th February 2010. It
has been pending for the last 13 years. The Petitioner
challenges an order of termination of the Petitioner's
services as a teacher from the 2nd Respondent school,
which is run by the 1st Respondent Samiti. A copy of the
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Samiti, Nashik & Ors
903-aswp-713-2010-J.doc
impugned termination order of 2nd October 2007 is at page
40. It accuses the Petitioner of being repeatedly absent
without permission. The entire termination order is based
on a report of a surprise visit of 29th September 2007 by the
Section Officer, Mantralaya and the Desk Officer and
Project Officer, Nashik. The dates themselves are curious.
The surprise visit was of 29th September 2007. Apparently,
the report was "verified" by the Society the very next day,
30th September 2007, and a mere two days later, on 2nd
October 2007, came the termination order. We confess to
be more than somewhat surprised at this astonishing display
of alacrity.
2. This is all the more surprising because although Rule
has been issued and served in 2010, this very same institute
has not, in the last 13 years, found time to file an Affidavit in
Reply. The termination order is issued in three days, but an
Affidavit in Reply cannot be filed for 13 years.
3. This was what we have been told. We are also being
told that now Respondents Nos. 1 and 2 have changed
Advocates and they need even more time.
4. At least on the record as it now stands, it is clear that
there was no show-cause notice issued to the Petitioner, no
hearing, but instead a termination order was directly issued.
5. We will give Respondents Nos. 1 and 2 an
opportunity but only until next Wednesday, 29th March
2023 to file an Affidavit in Reply. This Reply must disclose a
show-cause notice if one was issued and if it was not, the
reasons for not issuing a show-cause notice and for not
minimally following a fair procedure of granting a hearing.
6. The matter is to be listed high on board on 30th
March 2023."
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Desale Sharad Rambhau v The President, Kavivarya Kusumagraj Adivasi Sudhar
Samiti, Nashik & Ors
903-aswp-713-2010-J.doc
2. The only document to be considered is the termination notice
that is impugned in the Petition of 2nd October 2007. The original
is at Exhibit "E" at pages 40 and 41 and a translation is provided
from pages 41A to 41C.
3. The very short background is that a Section Officer of
Mantralaya, one Chaudhari made a surprise visit on 29th September
2007 to the 2nd Respondent school. He was accompanied by a Desk
Officer, Jadhav. Exactly one day later, the report of that surprise visit
was allegedly "verified" by officers of the 1st Respondent society
which runs the 2nd Respondent school.
4. We say that this despatch is surprising because the impugned
order itself shows that neither the school nor its management
showed any such great anxiety in the past. Paragraph 1 of the
impugned order refers to the surprise visit. But then in paragraph 2
alleges that the Petitioner was "repeatedly absent". It then notes
these details: 29th September 2007 for one day, 26th June 2006 to
27th June 2006, 11th June 2006, 29th September 2006, 28th
November 2006, 29th January 2006, 1st May 2006, 28th August
2007 to 20th August 2007 "to" 21st August 2007. This is
exceedingly peculiar (and there is clearly a typographical error in the
last set of dates). The impugned order is of 2nd October 2007 but it
seems clear that for none pf the previous alleged absences from
2006 onwards did the 1st Respondent take any action at all.
5. There is now, finally, an Affidavit in Reply and even this does
not indicate that any such action was taken against the Petitioner.
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Desale Sharad Rambhau v The President, Kavivarya Kusumagraj Adivasi Sudhar
Samiti, Nashik & Ors
903-aswp-713-2010-J.doc
6. We note this because Mr Deore invites our attention to
Section 5(3) of the Maharashtra Employees of Private Schools
(Conditions of Services) Regulation Act 1977. The sub-section says:
"5. Certain obligations Management of private
Schools.
.........
(3) If in the opinion of the Management, the work or
behaviour of any probationer, during the period of his
probation, is not satisfactory, the Management may
terminate his services at any time during the said period
after giving him one month's notice or salary or honorarium
of one month in lieu of notice."
7. The submission by Mr Deore is that no show cause notice is
necessary. Once the management finds that a probationer's work is
unsatisfactory, the management may terminate services at any time
during the period after one month's notice or salary or honorarium
of one month in lieu of notice. It is his submission that the
Petitioner's termination was to take effect one month later.
8. We are unable to see how this Section has any application. It
does not set out a procedure. It is merely an empowering Section.
The submission of an implicit exclusion of a fundamental rule of
natural justice is only to be stated to be rejected.
9. What is also relevant is that the Section speaks of a
probationer. Now paragraph 5 of the Petition reads thus:
"5. The Petitioner states that pursuant to the
advertisement dated 14.11.2005 in the local news-paper viz.,
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Desale Sharad Rambhau v The President, Kavivarya Kusumagraj Adivasi Sudhar
Samiti, Nashik & Ors
903-aswp-713-2010-J.doc
"Dainik DeshDoot Sakal" inviting applications for the post
of Shikshan Sevak in Respodnent No. 2's Primary School,
the Petitioner applied for the said post and was selected and
appointed as a Shikshan Sevak vide appointment order
dated 22.11.2005 in Respondent No. 2 school in a clear and
permanent vacancy. He is H.S.C.D. Ed. His appointment is
made on probation for a period of 3 years. The said
appointment of the Petitioner is made in accordance with
the terms and conditions declared by the Government of
Maharashtra for appointment of Shikshan Sevak. Hereto
annexed and marked as "EXHIBIT-A" is a copy of the
Advertisement dated 14.11.2005 and "EXHIBIT-B" is a
copy of the Petitioner's Appointment Lette4r dated
22.11.2005. The Petitioner was appointed in the Primary
Section of Respondent No. 2 School. The said Shikshan
Sevak Scheme is made applicable for private primary aided
schools vide G.R. dated 27.2.2003. Hereto annexed and
marked as "EXHIBIT-C" is a copy of the G.R. dated
27.2.2003."
10. In the Affidavit in Reply that is filed 13 years late, there is no
traverse of paragraph 5 at all. Curiously, paragraph 3 of the much-
delayed Affidavit in Reply accepts that the Petitioner was appointed
on a permanent basis by the management. The allegation that the
Government had not approved the appointment and therefore the
Petitioner was temporary does not make the Petitioner a probationer
for the purposes of the Act.
11. Second, Section 5(3) speaks about the formation of an
opinion. That opinion has to be formed following a certain
procedure. It cannot be whimsical. Rules 32 and 33 set out a
procedure including for removal from service.
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Desale Sharad Rambhau v The President, Kavivarya Kusumagraj Adivasi Sudhar
Samiti, Nashik & Ors
903-aswp-713-2010-J.doc
12. Leaving aside these considerations, we believe that the
millennia-old principle that requires a person charged with a
wrongdoing to be heard and given an opportunity, every principle of
natural justice and the principle of audi alteram partem demand that
at the minimum the Petitioner ought to have been given an
opportunity to explain these absences. The Affidavit in Reply
contends that the absences are not the only reason for the dismissal.
An exclusion of the rules of natural justice is never implied; their
inclusion always is. See: State Bank of India v Rajesh Agarwal and
Ors.1
13. There are other reasons, the Affidavit says, given in the
impugned order such as not filling attendance registers, carelessly
remaining absent and other reasons. But the only other reason cited
in paragraph 3 is an accusation of not filling up an attendance
register only for the month of September 2007.
14. The entire conduct of the 1st and 2nd Respondents is a
mockery and travesty of justice. A minimal notice would have
enabled the Petitioner to give an explanation. Then had that
explanation been decided, conceivably we would have not had
reason to interfere. The 2nd Respondent, Loknete Kailasvasi
Sitaram Bhoye, is a primary ashram school. The Government of
Maharashtra launched a scheme for free education for tribal
students. Initially, ashram schools were controlled by the State
Education Department in 1976 and then they were being controlled
1 2023 SCC OnLine SC 342.
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Desale Sharad Rambhau v The President, Kavivarya Kusumagraj Adivasi Sudhar
Samiti, Nashik & Ors
903-aswp-713-2010-J.doc
by the Tribal Development Department. This is how, in our view, a
Writ Petition is maintainable against the 2nd Respondent.
15. Mr Deore's final argument is that the Petitioner has an
alternate remedy. The plea of an alternate remedy is not one that
can be entertained at the final hearing of the Writ Petition. It is a
threshold argument to be considered before issuing Rule. Once Rule
has been issued, there is no question of examining the existence of
an alternate remedy.
16. Accordingly, Rule is made absolute in terms of prayer clauses
(a) and (b) which read thus:
"(a) That a writ of certiorari, writ of mandamus or any
other appropriate writ, order or direction be issued calling
for the records of Petitioner's case and after examining the
propriety and legality of the impugned termination order
dated 2.10.2007 passed by the Respondent No. 1 be
quashed and set aside the same and the Respondents No. 1
and 2 be ordered and directed to reinstate the Petitioner on
his original post of Asst. Teacher in the Respondent No. 2
School along with all consequential benefits of back wages
from the date of termination till reinstatement with
continuity of service.
(b) That by a writ of mandamus or any other appropriate
writ, the Respondents Nos. 1 and 2 be ordered and directed
to pay Petitioner's unpaid salary from 22.11.2005 to
28.10.2007 and/or Respondents No. 3 to 5 be ordered and
directed to deduct the amount of Petitioner's said unpaid
salary from the grants due and payable to the Respondent
No. 1 Trust and pay the said unpaid salary from 22.11.2005
till 28.10.2007 to the Petitioner."
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Desale Sharad Rambhau v The President, Kavivarya Kusumagraj Adivasi Sudhar
Samiti, Nashik & Ors
903-aswp-713-2010-J.doc
17. We clarify that all wages up to date have to be paid and not
just for the period of 22nd November 2005 till 28th October 2007.
18. We specifically do not fasten liability on the State
Government for the payment of wages. It is for the management to
pay these wages because the State Government is not at fault, and it
is not the State Government that terminated the Petitioner. It is true
that the State Government did not approve the appointment of the
Petitioner prior to his termination. It is open to the 1st and 2nd
Respondents to make a representation to the State Government that
for the period for which the approval was pending, the 1st and 2nd
Respondents should receive financial aid or support from the State
Government. If any such representation is made, it will be decided
on its merits.
19. The pending Civil Application does not survive and disposed
of as infructuous.
(Neela Gokhale, J) (G. S. Patel, J)
31st March 2023
