1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Letters Patent Appeal No. 228 of 2010 in Writ Petition No. 698 OF 2010 (D) 1] Dnyangangecha Bhagirath Mahatma Phule Shikshan Sanstha, Fulumri, Tah. Manora, Dist. Washim, through its President, Shri Krushnarao S/o Sitaram Rathod, Aged about 65 years, Occu. Cultivator, R/o Fulumri, Tah. Manora, Dist. Washim. 2] Mungsaji Maharaj, Anudanit Ashram Shala, Shivni, through its Headmaster, Shivni, Tah. Manora, Dist. Washim. ....APPELLANTS - VERSUS - 1] Deepak S/o Sadashivrao Ringne, Aged about 41 years, Occu. Service, C/o Ramesh Sadashivrao Ringne, Gram Vikas Vidyalaya, At Post Babhulgaon (Jahangir), Tah. and Dist. Akola. 2] Ekatmik Adiwasi Vikas Prakalpa, Akola, throughits Project Officer, having office at Gaddam Plots, Akola, Tah. and Dist. Akola. 3] Additional Commissioner, Tribal Development Department, Maharashtra State, Amravati, Tah. and Dist. Amravati. ....RESPONDENTS =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-==- Mr. C.A.Joshi, Advocate for the appellants. Mr. P.A.Kadu, Advocate for Respondent no.1 2 C ORAM : D.B.BHOSALE ; and PRASANNA B. VARALE, JJ. DATED : 3rd August, 2010. (Per : P.B.Varale, J.) Heard learned counsel for the parties. By this Letters Patent Appeal, the appellant- institute has challenged the order dated 22/3/2010, passed by the learned Single Judge in Writ Petition No. 698 of 2010. The writ petition was directed against the order dated 22/12/2009 passed by respondent no.3 - Additional Commissioner, Tribal Development Department, in Appeal No. 82/2009. The brief facts necessary for considering the present appeal, are as follows : Respondent no.1 - Deepak Ringne was initially appointed as Head Master, but subsequently he was working as Assistant Teacher in the appellant-institute. His services came to be terminated by the appellant- institute by the order dated 15/4/1999. The charges levelled against respondent no.1 for termination are that – (a) not attending the duty in time ; (b) attending the duty under influence of alcohole and misbehaving with the girl students; (c) beating the students who used to make complaint; (d) remaining absent in the school without permission of the authority; (e) remaining absent from duty for 28 days after opening of the school following vacation; and (f) not following the directions of the superiors etc. The copies of the appointment order and the order of termination are placed 3 on record. It is the case of the appellant that respondent no.1 was not the permanent employee and he was a temporary employee. The appellant-institute used to issue appointment orders from time to time. Being aggrieved by the said termination by appellant-institute, respondent no.1 approached to this Hon’ble Court by filing Writ Petition No. 298 of 2003. The said writ petition was disposed of by this Court by allowing the petitioner/present respondent no.1 to approach the appropriate authority by filing statutory appeal. Accordingly, an appeal being Appeal No. 82/2009 was preferred by respondent no.1 before respondent no.3 – Additional Commissioner, Tribal Development Department, Amravati. In this appeal, respondent no.1 denied all the charges levelled against him and submitted that the order of termination against him is a stigmatic order and before passing such order, it was necessary for the appellant- institute to conduct an enquiry/departmental enquiry. The action of the institute terminating respondent no.1 from the services without conducting any enquiry is clearly in violation of the provisions of law as well as against the principles of natural justice for the reason that no opportunity of hearing was given to respondent no.1 before passing the order of termination. The appellant-institute had taken stand before the appellate authority that the charges levelled against respondent no.1 are of serious nature and respondent no.1 being a temporary employee, there was no need to conduct any enquiry, much less departmental enquiry, against him. 4 On these premises, the appellate authority considered the rival contentions of the parties. The appellate authority, from the material produced before it, found that respondent no.1 was working as Head Master in the appellant-institute. The letters dated 13/9/1995, 17/11/1995, 17/2/1996 and 15/4/1996 issued by appellant-institute were placed on record to show that the institute had assigned the job of Head Master to respondent no.1. The record also show that the proposal for approval to the appointment of respondent no.1 was forwarded to respondent no.2 - Project Officer and the same was granted by him for the years 1996-97, 1997-98 and 1998-99. The appellate authority further found that in view of the provisions of Maharashtra Employees of Private School (Conditions of Service) Rules, 1981 and more particularly, in view of the provisions of Ashram School Code, 2001, Appendix 16, service rule no. 2.36 20(c), termination of a temporary employee can be effected by giving one month calender notice or salary of one month. The appellate authority also found that the appellant-institute has neither issued the notice nor paid one month salary to the respondent no.1. Thus, the appellate authority, from the record produced before it as well as from the submissions of the parties, arrived at a conclusion that termination of respondent no.1 was illegal and in violation of the provisions of law and directed the appellant-institute to reinstate respondent no.1 within a period of two weeks from the date of the order. 5 Being aggrieved by the order passed by the appellate authority, the appellant-institute approached this Court by filing writ Petition No. 698/2010 and the order dated 22/3/2010, passed by the learned Single Judge in this writ petition is impugned before us in the present L.P.A. Mr. C.A.Joshi, learned counsel for the appellants submitted before us that respondent no.1 was a temporary employee and as such no notice was required to be issued to respondent no.1 before terminating his services. The next ground urged by the learned counsel is that the charges levelled against respondent no.1 are of serious nature. Learned counsel for respondent no.1 support the order passed by the learned Single Judge. After giving anxious consideration to the submissions made by respective learned counsel for the parties, we find that the grounds urged before us are the same grounds, which were urged before the learned Single Judge. We further find that the learned Single Judge has considered both these grounds while disposing of the writ petition. The learned Single Judge has observed as under : “The order is per se stigmatic. Before me, it is admitted that the management has not conducted any departmental enquiry. It is not the case of the management that enquiry was dispensed with. Before me, it was argued that the appellate authority viz. Respondent o.3 was approached almost after 11 years. Papers show that writ petition vide Writ Petition No. 298 of 2003 was filed before this Court and it was disposed of on 26.08.2009 by permitting employee to file appeal before competent authority within two weeks. Accordingly, appeal came to be filed. The appellate authority has set aside termination order for reasons recorded by it. However, it has not awarded any 6 back wages. In these circumstances, it is apparent that an order casting stigma upon respondent no.1 cannot be allowed to stand in the absence of departmental enquiry.” Mr. Joshi, learned counsel for the appellants has argued that in the passage of 11 years, the institute has employed other employees, who have joined the services and they were not made party to the proceedings. We find that the learned Single Judge has dealt with this contention also. It is not in dispute that the matter was pending before various forums. Initially, an appeal was filed before the tribunal, thereafter writ petition was filed and thereafter, respondent no.1 approached to the appellate authority. We find that it was not the fault on the part of respondent no.1, but he has availed various remedies under the bona fide impression. While dealing with the contention raised by the learned counsel for the appellants, the learned Single Judge has observed as follows : “Shri Joshi, learned counsel has argued that in this period of 11 years, the other employees have joined the services and they were necessary parties to the proceedings. The challenge is not considered by the appellate authority. However, as the termination order of respondent no.1 is of the year 1999 and challenge thereto was pending before the Court, the recruitment of other employees by the management by itself is not sufficient to denying him the justice.” We also find that the learned Single Judge has kept the option open for the appellant-institute to proceed against respondent no.1 by following due procedure such as departmental enquiry and to take action accordingly. 7 Mr. Kadu, learned counsel for respondent no.2 has invited our attention to the order dated 22/12/2009 passed by respondent no.3 – Additional Commissioner, wherein the President of the appellant-institute, who was present before said authority, in his statement accepted that effecting the termination of respondent no.1 (without enquiry) was a mistake. The statement recorded in the order dated 22/12/2009 (at page no.128 of the appeal), in vernacular, reads thus :- “okfnyk lsosrqu ljGdeh dj.ks gh laLFksph pqd vlY;kps laLFksP;k v/;{kkauh ekU; dsys-” Taking over all view of the matter, considering the facts and circumstances and the reasons assigned by the learned Single Judge, we find no error committed by the learned Single Judge. The learned Single Judge has arrived at just and proper conclusions, which need no interference. The present appeal lacks merit and deserve to be dismissed. The Letters Patent Appeal is accordingly dismissed. JUDGE JUDGE Diwale