{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5797 OF 2011 Menanath Sitaram Jaigude, age: 46 years, Occ: Nil, At present R/o Newasa, Tal. Newasa, Dist.Ahmednagar. Petitioner Versus 1 The State of Maharashtra, through its Deputy Secretary, Education Department, Maharashtra State, Mantralaya, Mumbai-32. 2 The Joint Director (Higher Education), Dr.Babasaheb Ambedkar Road, St.Mathews Marathi Church, Opp. Lal Deul Camp, Pune 411 001. 3 The Principal, New Arts, Science & Commerce College, Ahmednagar. 4 The Secretary, Ahmednagar Zilla Maratha Vidya Prasarak Samaj, Ahmednagar. Respondents Mr.H.D.Deshmukh, advocate for the petitioner. Mr.K.J.Ghute Patil, A.G.P. for Respondents No.1 & 2. Mr.V.D.Hon, advocate for Respondent No.4. CORAM : K.U.CHANDIWAL, J. DATE : 08th December, 2011 {2} ORAL JUDGMENT: 1 Heard. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 The petitioner questions notice of termination dated 24.01.2009, issued by Respondent No.3 – The Principal of New Arts, Science & Commerce College, Ahmednagar and also judgment & order dated 27.10.2010, passed by the Presiding Officer, Pune University & College Tribunal, Pune in Appeal No.25 of 2007. 3 Learned Counsel for the petitioner has urged for reinstating the petitioner in service with back wages also for necessary orders in that behalf. 4 The petitioner was working as a watchman with Respondent No.4-Institution from 01.06.1990, initially for probation of one year and thereafter he has been confirmed as a permanent employee of Respondent No.4. The petitioner had, owing to ill health of his mother, applied for leave by his communication dated 31.07.2006 for the period from 01.08.2006 to 04.08.2006. It was accordingly granted. He resumed the duties on 05.08.2006, but it was not communicated, as was expected by Respondent No.4 and he simply signed the muster. Thereafter he moved another application for proceeding on leave from 07.08.2006. The petitioner consequently remained absent and action was contemplated against him. He has, {3} by his communication dated 08.11.2006, informed the Management, since his mother, who is seriously ill, is to be admitted to the hospital outside Ahmednagar, He has sought leave without pay and also assistance/co-operation. The petitioner remained absent. His mother expired on 26.11.2006. He resumed the duties on 28.02.2007. On 23.03.2007, Respondent No.3 issued termination order, terminating his services with effect from 01.03.2007, by exercising powers under Rule 50 of the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code (Terms and Conditions of Service of Non-teaching Employees) Rules, 1984 (hereinafter referred to as “Code, Rules”). 5 The petitioner challenged his termination before the University & College Tribunal, that he was made a scape goat for the internal chaos in the Management. No opportunity was given to him under the provisions of Rule 43 of the Code, Rules and even without following due procedure for imposing penalty, as contemplated under Rule 46, erroneously Rule 50 was given effect branding him to be a deserter. 6 Mr.Hon, learned Counsel for Respondent No.4, does not dispute about status of the petitioner to be a permanent employee as watchman. He stressed, the Rules will have to be read in harmonious situation. Different positions are indicated under the Rules, as Rule 42 contemplates misconduct, Rule 43 speaks for penalties, Rule 44 deals with procedure for imposing minor penalties, Rule 45 contemplates suspension, Rule 46 deals with procedure for imposing {4} major penalty, Rule 47 speaks of action on enquiry report, Rule 48 as regards common proceeding, Rule 49 – Appeals and Review and Rule 50 deals with deserter. 7 He submits that in spite of giving several opportunities to the petitioner to review his conduct as a watchman, he has not mend his ways and he is in continuous habit to cause absentism, thereby causing losses to the Management, as security is put to stake and the Management has to make some alternate time gap arrangement. The termination is without any stigma to the petitioner. Consequently, no procedure, as contemplated under Rule 43 or Rule 44 needs to be complied with. In order to substantiate his contentions, learned Counsel has placed reliance to the judgment of Division Bench in the matter of Mohd. Yusuf Vs. State of Maharashtra, reported in 2007 (2) Mh.L.J. 276. 8 The term “deserter” under Rule 50 reads as under: 50 Deserter :- The employee who absents from duty without permission for a period of more than thirty days, shall be deemed to be deserter and his services shall stand terminated automatically on the expiry of the period of thirty days. Provided that, whenever the employee is not able to attend the duties as prescribed and not able to communicate reasons of his absence for the reasons beyond his control, the Competent Authority may, by a special order condone his {5} absence. One has to keep reading said term in tune with the proviso which contemplates that the Competent Authority may, by a special order, has to consider the absence and to condone the same. 9 There is no quarrel that the petitioner remained absent for the period which totally comes to 210 days, however, the Management, all throughout, was informed that due to serious ailment to his mother and consequently her death, the petitioner, who was under traumatic situation, could not concentrate his achievement as a watchman and remained absent. Since the proviso to Rule 50 is not taken or given effect by the Management, which was also an expectation of a realistic approach, the action of Management certainly calls for interference. The legal position has been enunciated in different pronouncements. One of such observation of this Court, in the matter of Owesh Alam Mohd. Yakub Vs. The Principal of Maharashtra College of Arts, Science & Commerce & another, reported in 2000 Vol.102 (3) Bom.L.R., 558, invites attention. This Court has observed, in para 5, as under: “A provision which confers upon an employer an unrestricted power to treat an employee who is absent as having deserted or abandoned service, without an enquiry would suffer from the vice of arbitrariness and would violate Article 14. The provision can be saved only by reading into it the requirement of complying with the principles of natural justice. In fact the proviso to Rule 50 {6} contemplates that an employee may not have been able to communicate the reasons for his absence on account of circumstances beyond his control. The Competent Authority can then condone the absence by a special order. This provision does therefore implicitly recognize the need to observe the principles of natural justice because it is only upon the furnishing of an opportunity that the employee can make out the reasons beyond his control which justified his absence without intimation.” 10 The Management, as could be seen, did not follow the principles of natural justice to hear the petitioner as to what made him to remain absent from the employment and to assess the situation in proper perspective. It may be that the petitioner is a rank habitual employee to remain absent, having so felt in the year 2003, however, that by itself, would not be a stigma, since thereafter he honestly discharged his duties to the satisfaction of the Management. 11 Rule 42 speaks of misconduct. Rule 43, as stated earlier, informs of penalties and procedure is informed in Rule 45. Rule 50, as a whole, if proviso is not applied, will have to be given effect with the arrangement indicated in Rules 43 to 46. The Management has not adhered to this situation. Consequently, the order of termination, questioned in the writ petition and also the order, passed by the learned Presiding Officer, University & College Tribunal, calls for interference. {7} 12 Hence, letter of termination is set aside. 13 The petitioner did not inform justifiably about his absence. Consequently, he shall not be eligible to stake claim for his wages for the period he did not attend the duties. The Respondent- Management to reinstate the petitioner in the position which he enjoyed, without payment of back wages. The duties would be treated as effective from 15.12.2011. The petitioner will be eligible and entitled to the salary as applicable to the watchman at instant period. 14 Rule made absolute in above terms. No costs. The order is stayed up to 31.01.2012. K.U.CHANDIWAL JUDGE adb/wp579711