1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8330 OF 2011 Shri Madhukar V. Wagh ... Petitioner. V/s. 1. The Chief Executive Officer, Education Dept. (Primary) Z.P., Raigad, Alibag & Anr. ... Respondents. --- WITH WRIT PETITION NO. 8331 OF 2011 Shri Sachin A. Dhole ... Petitioner. V/s. 1. The Chief Executive Officer, Education Dept. (Primary) Z.P., Raigad, Alibag & Anr. ... Respondents. --- WITH WRIT PETITION NO. 8332 OF 2011 Sou. Jayshree A. Pokale ... Petitioner. V/s. 1. The Chief Executive Officer, Education Dept. (Primary) Z.P., Raigad, Alibag & Anr. ... Respondents. --- WITH WRIT PETITION NO. 8334 OF 2011 Shri Ashok D. Khedkar ... Petitioner. V/s. 1. The Chief Executive Officer, Education Dept. (Primary) Z.P., Raigad, Alibag & Anr. ... Respondents. --- WITH WRIT PETITION NO. 8335 OF 2011 Shri Satish Vaijinathrao Pokale ... Petitioner. V/s. 1. The Chief Executive Officer, Education 2 Dept. (Primary) Z.P., Raigad, Alibag & Anr. ... Respondents. --- WITH WRIT PETITION NO. 8336 OF 2011 Shri Sandeep S. Funde ... Petitioner. V/s. 1. The Chief Executive Officer, Education Dept. (Primary) Z.P., Raigad, Alibag & Anr. ... Respondents. --- WITH WRIT PETITION NO. 8622 OF 2011 Smt. Anita Raosaheb Nagargoge ... Petitioner. V/s. 1. The Secretary, Shikshan Sewak District Selection Committee, Raigad- Alibag & Ors. ... Respondents. --- Mr. S.C. Mangle, Advocate for the Petitioners in W.P.Nos. 8330/11 to 8332/11 and 8334/11 to 8336/2011. Mr.Sachin U.Dhakephalkar, Advocate for the Petitioner in W.P. 8622/11. Mr. C.G. Gavnekar, Advocate for the Respondent Nos.1 & 2. Ms. P.S. Cardozo, AGP for Respondent No.5 in W.P.No.8622/2011. --- CORAM : G.S. GODBOLE, J. DATE : 23rd NOVEMBER, 2011 P.C. : 1 Since the controversy involved in all these Writ Petitions is identical and since the Respondents in all these Petitions are same though the Petitioners are different, all these Petitions are being disposed of by this common Order. Even Advocates appearing for 3 the Petitioners and Respondents have consented for disposal of the Writ Petitions by a common Order. 2 Rule. Rule made returnable forthwith in all these Petitions. Mr. Gavnekar, Advocate waives service on behalf of the Respondent Nos. 1 and 2. On the oral prayer made by the Advocate for the Petitioners in Writ Petition Nos. 8330/11, 8331/11, 8332/11, 8334/11, 8335/11 and 8336/2011, the name of Respondent No.3 -Block Development Officer is allowed to be deleted. Similarly on the oral prayer by the Advocate for the Petitioner in Writ Petition No. 8622/2011, name of the Respondent No.4-Block Development Officer is allowed to be deleted. The learned AGP appears for Respondent No.5 in W.P.No.8622/2011. 3 Government of Maharashtra has framed a Scheme called as “Shikshan Sevaks Scheme” by issuing G.R. dated 13th September, 2000 which was modified from time to time by issuing various Government Resolutions, one of which is dated 27th February, 2003. All the Petitioners were appointed in the post of Shikshan Sevak on the following dates : In the first six Writ Petitions, all the Petitioners were appointed on 21.12.2006 as Shikshan Sevaks; whereas in the 7th Petition filed by Advocate Mr. Dhakephalkar, the Petitioner was 4 appointed on 5th December, 2006. All these Petitioners accordingly served as Shikshan Sevaks for almost three years and at that stage, the Chief Executive Officer, Zilla Parishad Raigad, Alibag passed impugned orders on 19.11.2009. By the said impugned orders, the services of all the Petitioners were terminated on the ground that the Government Resolution contemplated preparation of the select list for the appointment of Shikshan Sevaks and the waiting list, approval of such select list and waiting list of the Shikshan Sevaks and appointments of all the Shikshan Sevaks in the vacancies created in a particular year only from the select list prepared for that year. The impugned orders further proceed on the basis that while making the appointment, the select list will remain valid only for that particular year. The impugned orders further provide that while making appointments of Shikshan Sevaks, before issuing appointment orders, an office note has to be prepared and after the Selection Committee finalizes the list, thereafter with the approval of the Secretary to the Shikshan Sevak Samiti, who is Education Officer (Primary), the Chief Executive Officer, who is the Ex-Official Chairman of Shikshan Sevak Samiti can sign appointment order. This reason is given in the first six orders. In the 7th order which is challenged in the Writ Petition No. 8622/2011, this reason is not given. The common reason in the 5 impugned orders is to the effect that though the name of the Petitioner was not appearing in the select list for the year, 2006 they had been illegally appointed. On that ground without issuing any show cause notice, the services of the Petitioners were terminated by the impugned orders dated 19.11.2011. 4 It needs to be stated here that all the Petitioners had challenged the orders of termination by filing Appeals and all the Appeals were allowed by setting aside the Orders of termination and passing order of reinstatement. All these orders were challenged by filing Writ Petitions in this Court by the Chief Executive Officer, Zilla Parishad Raigad, Alibag and others. By order dated 20th September, 2011 passed by the learned single Judge (Coram: Ranjit More, J. ) all the Writ Petitions were allowed with the following order : “1 Heard learned counsel for the respective parties. 2 All these petitions involve common question and, are, therefore,being disposed of together. 3. The Zilla Parishad, Raigad by filing the aforesaid writ petitions challenges the common order dated 11.3.2011 passed by One Man Grievance Committee (for short “Grievance Committee”) constituted for entertaining complaints of Shikshan Sevaks. By the said order, the action on the part of Zilla Parishad Raigad, terminating service of Respondent No. 1, in each of the aforesaid writ petitions, 6 was quashed and set aside and Respondent No.1 directed to be reinstated as an Assistant Teacher forthwith with continuity of service. 4. Mr Gavnekar, learned counsel for the petitioners relies upon the Apex Court judgment in the case of the Secretary Vs. Shivaji Bhagwat More & Ors in Civil Appeal No. 4988/2011. By the said judgment, the Apex Court was pleased to hold that the State Government by executive fiat or the High Court under Article 226 of the Constitution cannot constitute Quasi Judicial Tribunal. The Apex Court also held that the decision of the Grievance Committee is not enforceable or executable, however, same is in the nature of recommendation, that can be made the basis by the Education Department, to issue appropriate directions, in accordance with law. In short, the Apex Court held that the Grievance Committee constituted under the Shikshan Sevaks Scheme cannot order reinstatement of a Shikshan Sevak. Faced with this difficulty, Mr Mangle, agrees for setting aside the impugned order. However, he submits that liberty may be granted to respondent No.1 to challenge the order of termination by filing a proceeding before appropriate Forum. Mr Gavnekar, learned counsel for the petitioners has no objection, if this liberty is granted to respondent No.1. In the above circumstances, petition is disposed of by passing the following order:- ORDER. (1) Impugned order passed by One Man Grievance Committee dated 14.6.2011 is quashed and set 7 aside. (2) Respondent No.1 is at liberty to file proceedings, before appropriate forum, challenging the impugned order of termination. In the event, such proceedings are filed within a period of four weeks from today, the petitioners shall not oppose the same on the ground of limitation. (3) It is made clear that I have not gone into the merits of the case and all points and contentions of the respective parties with regard to the termination order, are kept expressly open. (RANJIT MORE, J.)” 5 In view this, the present Writ Petitions have been filed for challenging the orders of termination. Affidavit-in-Reply has been filed in the first six Writ Petitions and Mr. Gavnekar states that the same may be considered to be adopted as an Affidavit-in-Reply in the 7th Writ Petition. The Affidavits reiterate that the Petitioners were not included in the select list of Shikshan Sevaks for the year 2006 and only on that ground their services were terminated. The fact that no show cause notice was given to the Petitioners before termination of their services is not disputed in the Affidavit. 6 Mr. Mangle, the learned Advocate for the Petitioners in the first six Petitions has rightly relied upon the Judgment of the Supreme 8 Court between Basudeo Tiwary and Sido Kanhu University & Ors., reported in 1999 (LLJ) Supreme Court of India 214.1 Mr. Mangle and Mr. Dhakephalkar submitted that the impugned orders of termination of services of the Petitioners were passed in complete violation of principles of natural justice as no show cause notice was served nor any enquiry was conducted prior to the termination, giving any opportunity to the Petitioners to meet the case which was sought to be put up against them. They have advanced various other submissions even on the merits of the controversy. However, since I am inclined to accept the first submission regarding violation of Rules of natural justice, it is not necessary to deal with other submissions at this stage. 7 Mr. Gavnekar did not dispute the factual position that no notice was served on the Petitioners. He, however, relied on the Affidavit-in-Reply and contended that since the names of the Petitioners, according to the Respondents Z.P., were not in the select list of the year 2006, their appointments had been wrongly and fraudulently made and therefore, they did not have any right to the post. 1 1999 (LLJ) Supreme Court of India 214. 9 8 Mr. Gavnekar also contended that the Petitioners have alternate efficacious remedy under the provisions of the Maharashtra Zilla Parishad and Panchayat Samaties Act, 1961. 9 In so far as the submission of Mr. Gavnekar regarding existence of the alternate remedy is concerned it is settled principal of law that if an order is passed in clear violation of the rules of natural justice, existence of the alternate remedy is normally not treated as a bar to exercise of the Jurisdiction under the Constitution of India. Hence, objection regarding alternate remedy will have to be overruled. 10 I have considered the rival submissions and as stated above, I am inclined to allow all the Writ Petitions purely on the ground that the impugned orders have passed by breaching the rules of natural justice. The ratio of the Judgment of the Supreme Court in the case of Basudeo Tiwary (supra) is clearly applicable to the facts of this case. I deem it necessary to reproduce paragraphs 8 to 13 of the said Judgment which read thus : “8. Several contentions have been addressed by learned counsel on either side. However, for the purpose of disposal of this appeal, it is suffice to consider only one aspect of the matter and that is, whether the appellant had been given an opportunity of being heard before 10 terminating his services and in the absence of the same whether such termination is valid. The High Court took the view that the appointment of the appellant made by the Syndicate of the University by its resolution dated January 24, 1986 is illegal and on that basis took the view that the termination of the services was in order but did not examine the aspect with which we are concerned in the present case as to the non-observance of rule of Audi Alteram Partem. 9. The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for, natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee is antithesis to fair, just and reasonable treatment. This aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corporation vs. D.T.C. Mazdoor Congress reported in (1991-I-LLJ-395). 10. In order to impose procedural safeguards, this Court has read the requirement of natural justice in many situations when the statute is silent on this point. The approach of this Court in this regard is that omission to impose the hearing requirement in the statute under which the impugned action is being taken does not exclude hearing - it may be implied from the nature of the power - particularly when the right of a party is affected adversely. The justification for reading such a requirement is that the Court merely supplies omission of the legislature. (Vide Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner & Ors. AIR 1978 SC 851) and except in case of direct legislative negation or implied exclusion. (vide S.L. Kapoor vs. 11 Jagmohan & Ors. AIR 1981 SC 136). 11. In the light of these principles of law, we have to examine the scope of provision of Section 35(3) which reads as follows :- "35(3) Any appointment or promotion made contrary to the provisions of the Act, Statutes,Rules or Regulations or in any irregular or unauthorised manner shall be terminated at any time without notice. 12. The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, Statutes, Rules or Regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, Rules, Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, rules or regulations etc. a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry notice to the person whose appointment is under enquiry will have to be issued to him. If notice is not given to him then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha's (supra) case. In such an event, we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, statute, rule or regulation etc. 12 and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35(3) in this case will have to be read. 13. Admittedly in this case notice has not been given to the appellant before holding that his appointment is irregular or unauthorised and ordering termination of his service. Hence the impugned order terminating the services of the appellant cannot be sustained.” 11 Thus all these Petitions deserve to succeed only on the ground of failure to follow rules of natural justice. While setting aside the impugned orders, it will have to be made clear that this order does not preclude the Respondents from taking appropriate disciplinary action by issuing the show cause notice and then take action in accordance with the law with regard to the service of the Petitioners. 12 Hence, I pass following order: i. The impugned orders dated 19.11.2009 passed in this Writ Petitions thereby terminating the services of the Petitioners are quashed and set aside only on the ground that the said orders had been passed in breach of the Rules of natural justice viz. without affording any 13 opportunity of being heard to the Petitioners. ii. All the Petitioners will be reinstated with all consequential reliefs like back wages etc.; with permanency in the employment on completion of the probation period. It is made clear that all the Petitioners will be deemed to be in service for that purpose. iii. Needless to state that this order does not preclude the right of the Respondent- Z.P. to initiate appropriate disciplinary proceedings or other proceedings as may be permissible in law to take action against the Petitioners for the alleged illegal/ irregular appointments of the Petitioners. All contentions of the Petitioners and Respondents raised in that regard are expressly kept open. iv. Rule in all the Writ Petitions is made absolute in the aforesaid terms with no orders as to costs. (G.S.GODBOLE,J.)