Shirin S/O. Ramesh Ankalwar vs Maharashtra State Electric ...
2024 Latest Caselaw 13889 Bom

Bombay High Court

Shirin S/O. Ramesh Ankalwar vs Maharashtra State Electric ... on 3 May, 2024

Author: M.S. Jawalkar

Bench: Avinash G. Gharote, Mukulika Shrikant Jawalkar

2024:BHC-NAG:5343-DB


                                                            1                                 914.WP.1448-2023.odt




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

                                      WRIT PETITION NO. 1448 OF 2023
                             ( Shri Shirin S/o Ramesh Ankalwar
                                               Vs.
                  Maharashtra State Electric Distribution Company Ltd., Thr. Its
                      Managing Director, Bandra, East, Mumbai & Ors. )
         Office Notes, Office Memoranda                         Court's or Judge's orders
         of Coram, Appearances, Court's
         orders     or    directions and
         Registrar's orders

                                 Mr. A.A. Mardikar, Advocate for the Petitioner.
                                 Mr. S.V. Purohit, Advocate for the Respondents.


                                 CORAM:        AVINASH G. GHAROTE AND
                                               SMT. M.S. JAWALKAR, JJ.

DATED : 3rd MAY, 2024

Heard Mr. Mardikar, learned counsel for the petitioner and Mr. Purohit, learned counsel for the respondents.

2. The petitioner who was appointed as a Junior Engineer with the respondents was arrayed as an accused in Special ACB Case No. 01/2010 under the provisions of Sections 7, 13 (1) (D) read with Sections 13 (2) and 12 of the Prevention of Corruption Act, from which he came to be acquitted on 29.03.2017. Prior to that on account of his being arrayed as an accused in the aforesaid proceedings by an order dated 30.06.2012, the services of the petitioner stood terminated.

3. The appeal filed by the State against the order of acquittal dated 29.03.2017 also came to be dismissed by this 2 914.WP.1448-2023.odt

Court on 31.07.2019. The petitioner therefore filed an Application on 11.09.2017 (page 60), seeking reinstatement. Since the same was not granted the present Petition has been filed seeking the relief of reinstatement and continuity in service and backwages.

4. Mr. Purohit, learned counsel for the respondents, submits that the petitioner has been reinstated, which position is not disputed by Mr. Mardikar, learned counsel for the petitioner. The grievance is regarding Clause 2 (ii) of the reinstatement order dated 22.08.2023 (page 74[B]), which indicates that the reinstatement is on no work no pay basis and the period from termination to reinstatement, has been considered as dies non. It is contended, that since the petitioner had a clear acquittal of the charges against him, the petitioner would be entitled to the continuity of services and so also backwages.

5. Mr. Purohit, learned counsel for the respondents, had relied upon Regulation 90 of The Maharashtra State Electricity Distribution Company Ltd. Employees' Service Regulations, 2005 (for short the "Regulations of 2005") to contend, that in case where the employee has been caught red handed having committed or while committing an act of misconduct, a summary decision without any regular enquiry can be taken to ensure forthwith dismissal of the employee. He submits, that in exercise of powers of Regulation 90 of the Regulations of 2005, the services of the petitioner were terminated and though Regulation 90 of the Regulations of 2005, has subsequently been held to be un-Constitutional by 3 914.WP.1448-2023.odt

this Court in Writ Petition No.3126/2011 Praveen s/o Prabhakarrao Jawale Vs. Maharashtra State Electricity Distribution Company Ltd., (MSEDCL) & Anr., dated 22.08.2013, however since the termination of the petitioner was earlier in point of time and so also no Appeal under Regulation 92 of the Regulations of 2005 was preferred by the petitioner, the termination had attained finality and the judgment in Praveen s/o Prabhakarrao Jawale (supra) would have no effect, the action having already been completed. Insofar as the backwages is concerned, it is contended that since the petitioner did not work and was gainfully employed, for which reliance is placed upon the averments in para 16.9 and 16.10 (page 14 [I]) of the Petition and so also on the rejoinder affidavit of the petitioner (page 118 para 1) which indicates, that the petitioner had enrolled himself as a Lawyer after completing his LLB, the petitioner was gainfully employed, and therefore, was not entitled to backwages. He therefore submits, that the order of reinstatement insofar as it puts conditions, does not need any interference.

6. The acquittal of the petitioner by the learned Sessions Court as well as by this Court, is a matter of fact. This would clearly entitle the petitioner to reinstatement in service which has been done. Though the petitioner was summarily dismissed in terms of Regulation 90 of the Regulations of 2005, it is equally a fact, that the same has been quashed and set aside by this Court in Praveen s/o Prabhakarrao Jawale (supra).

7. Though Mr. Purohit, learned counsel for the 4 914.WP.1448-2023.odt

respondents, contends that the quashing of Regulation 90 of the Regulations of 2005 would not enure to the benefit of the petitioner, he having not challenged his termination by filing an Appal under Regulation 92 of the Regulations of 2005, in our considered opinion, non-filing of an Appeal, against the order of termination, in light of the fact that Regulation 90 of the Regulations of 2005, which was the basis of the termination itself has been declared to be arbitrary and unreasonable and has been quashed in Praveen s/o Prabhakarrao Jawale (supra), would not indicate saving of or revival of the order of termination, as the very source to which the order of termination relates does not survive. In fact, the learned Division Bench in Praveen s/o Prabhakarrao Jawale's case has held that Regulation 90 of the Regulations of 2005 in fact is akin to Henry's Rule and is hit by the principle of Wednesbury unreasonableness, imposing unreasonable and unrestricted power in the hands of the employer. That being the position, any action on the basis of Regulation 90 of the Regulations of 2005 even otherwise cannot be sustained on the touchstone of law as applicable.

8. Though reliance is placed by Mr. Purohit, learned counsel for the respondents, in State of Manipur and Others Vs. Surjakumar Okram and Others, 2022 SCC OnLine SC 130 , to contend that the quashing of Regulation 90 of the Regulations of 2005 has to be considered as to have effect from the date of quashing, we however, are not willing to accept the said contention, on account of the findings rendered by the learned Division Bench in Praveen s/o Prabhakarrao Jawale (supra) specifically para 28 and 30. The 5 914.WP.1448-2023.odt

contention therefore in this regard is rejected.

9. Insofar as the plea of delay is concerned, in approaching this Court, the acquittal of the petitioner become final in 2019 and the petition has been filed in 2023 prior to which several representations have been made by the petitioner to the respondents for reinstating him in his original service, which is reflected from the representations dated 11.09.2017 (page 56), 15.01.2018 (page 61), 26.06.2018 (page 63), 05.03.2021 (page 72) and 24.01.2023 (page 74), all of which have gone unheeded. Infact once Regulation 90 of the Regulations of 2005 came to be set aside by this Court, it was infact necessary for the respondents themselves to have rectified the actions which had been undertaken in pursuance to Regulation 90 of the Regulations of 2005 on their own. This not having been done, the respondents cannot lay the blame at the door steps of the petitioner for the delay.

10. Though Mr. Purohit, learned counsel for the respondents, has relied upon the ground of delay on Bhaskar Shankarrao Gaikwad Vs. Maharashtra State Electricity Distribution Company Limited & Anr., Writ Petition No.644/2015 decided on 03.10.2022, in which on account of the delay occasioned the petition was not entertained, it is necessary to note, that the initiation of the summary proceedings in that case, was challenged by the employee before the learned Industrial Court by Complaint (ULP) No. 20/2008 where there was no challenged to the order of termination. The Revision filed challenging the refusal of 6 914.WP.1448-2023.odt

interim relief was also dismissed and no steps thereafter came to be taken, and it is only after the judgment of this Court in Praveen s/o Prabhakarrao Jawale (supra) the representations were made on 21.04.2014 and 01.11.2014 consequent to which petition itself came to be filed in 2022. It would therefore be apparent, that Bhaskar Shankarrao Gaikwad (supra) was not a case in which the termination of the employee was in question. That apart, the question as to the effect of quashing of Regulation 90 of the Regulations of 2005, was not considered and what was considered was that at that point of time, no action under the said Regulations were pending. As indicated above the petitioner, was acquitted on 29.03.2017, which came to be confirmed by this Court on 31.07.2019, which can be said to have given the cause of action to the petitioner for applying for reinstatement. This is therefore not a case, where it can be said that any delay has been occasioned at the behest of the petitioner which would disentitle him to the relief as claimed.

11. Mr. Purohit, learned counsel for the respondents, has also relied upon Prahlad Raut Vs. All India Institute of Medical Sciences, (2021) 14 SCC 472, which again is on absence of explaining delay. As indicated above, on account of the acquittal of the petitioner, the representation was immediately made in 2017 itself which could have been acted upon by the respondents. We therefore do not see any reason for holding that the petition suffers from delay and latches.

12. The effect of striking down of Regulation 90 of the Regulations of 2005, in our considered opinion would be that 7 914.WP.1448-2023.odt

the Regulation 90 of the Regulations of 2005 does not exist, and therefore, all actions taken thereunder would be rendered non-est. That being the position, the reinstatement of the petitioner, with conditions of no work and no pay and treating the period between termination and reinstatement as non dies, cannot be sustained and those conditions are therefore quashed and set aside and it is held that the petitioner would be entitled to continuity of service from the date of termination.

13. The only question which now remains is whether the petitioner should be granted backwages from the date of termination. Though Mr. Mardikar, learned counsel for the petitioner, has relied upon Shri Dinkar S/o Uttam Desale Vs. State of Maharashtra & Ors., Writ Petition No.10916/2015, all that it says in this regard is that the grant of backwages is dependent upon the discretion of the Court in exercising which attending circumstances have to be taken into consideration in light of which 50% backwages were awarded.

14. Mr. Purohit, learned counsel for the respondents, on the other hand has relied upon Abhimanyu Laxman Kumbhar Vs. The Maharashtra State Electricity Distribution Company Ltd. & Ors., in which under similar circumstances the employee has not been held to be entitled for backwages from the date of removal of services till his acquittal. It would therefore be necessary to consider what are the attending circumstances in the instant matter which would reflect upon the exercise of discretion for awarding backwages.

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15. The petitioner himself in his petition has indicated that after his termination, the petitioner had commenced business which would indicate that the petitioner was gainfully employed. The fact that the petitioner claims that the business went into losses cannot be a ground to consider non-availability of funds with the petitioner. It is also come on record that the petitioner during the interim period had completed his LLB and was also enrolled as Lawyer. Though it is contended, that such enrollment was for the purpose of assisting his counsel in the litigation, in our considered opinion for assisting the counsel in the litigation this need not be necessary. This would only indicate that the petitioner had some source of livelihood during the interim period. Considering this position, we direct 50% backwages to be paid to the petitioner from the date of acquittal.

16. The petitioner is thus held entitled for reinstatement with continuity in service, with all consequential benefits and the period between the termination and reinstatement shall be considered as duty period. The claim for backwages is restricted to 50% of the backwages from the date of acquittal.

17. The Petition is accordingly allowed in the above terms. No costs.

18. Pending application/s, if any, shall stand disposed of accordingly.

(SMT. M.S. JAWALKAR, J.) (AVINASH G. GHAROTE, J.) SD. Bhimte Signed by: Mr.S.D.Bhimte Designation: PA To Honourable Judge Date: 06/05/2024 18:32:45