1 913 wp 4452.11.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4452 OF 2011 Vishwas Shikshan Prasarak Mandal & Anr. .. Petitioners Vs. Shri Vijay Dattatraya Khuje & Ors. .. Respondents Mr. J. Shekhar & Co. for the petitioners. Mr. C.G. Gavnekar for Respondent. CORAM: K.K. TATED, J. DATE: 5th AUGUST, 2011 PC: 1. Heard the learned counsel for the parties. 2. By this Petition under Article 227 of the Constitution of India, Petitioners – original Respondent nos. 1 and 2 challenge the order dated 25th March, 2011 passed by the learned Presiding Officer, Pune/Shivaji/Solapur University & College Tribunal, Pune University Campus, Ganeshkhind, Pune, in Appeal No.6 of 2009 (S) setting aside Respondent no.1’s termination from service from 25th July, 2008 and directing the Petitioners to reinstate him in service with effect from 25th July, 2008, with full back wages and continuity in service. 2 913 wp 4452.11.doc 3. A few facts of the matter are as under: Respondent no.1 is working with the Petitioners since 3rd May, 1999 on the post of Laboratory Attendant. It is the case of Respondent no.1 that from 25th July, 2008, the Petitioners restrained him from signing muster role and therefore, he by letters dated 25th July, 2008, 1st August, 2008 and 5th September, 2008 called upon the Petitioners to allow him to sign the muster role. In spite of those letters, the Petitioners restrained him from joining the services and therefore, he filed Appeal before the College Tribunal under section 59 of the Maharashtra Universities Act, 1994. As there was delay in preferring the Appeal, he made Application dated 22nd December, 2008 for condonation of delay. The said Appeal was allowed by the learned Presiding Officer by impugned order dated 25th March, 2011 holding that the Petitioners without following due process of law terminated the services of Respondent no.1. The Tribunal directed the Petitioners to reinstate Respondent no.1 with continuity of service with effect from 25th July, 2008 with full back wages. Hence, the present Petition. 3 913 wp 4452.11.doc 4. The learned counsel appearing on behalf of Petitioners states that the College Tribunal erred in coming to the conclusion that Respondent no.1 is entitled to reinstatement of his services in the Petitioners’ establishment. He further submits that the learned Presiding Officer, College Tribunal committed gross error in law and the order passed by the learned Presiding Officer, College Tribunal suffered from procedural lacuna. According to him the finding of the learned Presiding Officer, College Tribunal are based on wrong presumption of law and therefore, the interference of this court is called for. He submits that the Respondent on his own abandoned the services from 25th July, 2008 and therefore, they issued show cause notice dated 7th November, 2008. Thereafter, they issued a reminder letter dated 1st December, 2008. As there was no reply from Respondent no.1, they finally addressed a letter dated 26th December, 2008 informing Respondent no.1 that they would take appropriate steps to terminate his services. He submits that the Tribunal failed to consider that Respondent no.1 on his own remained absent from 25th July, 2008 and therefore, he abandoned the services. In any case, Respondent no.1 is not entitled to any relief. He further submits that the learned 4 913 wp 4452.11.doc Presiding Officer, College Tribunal erred in coming to the conclusion that Respondent no.1 is entitled to full back wages. He submits that they placed on record a certificate from ‘Sakal News Paper’ pointing out that Respondent no.1 was providing his vehicle to the said news paper for transporting the papers and that way he was earning during that period and therefore, Respondent in any case was not entitled for full back wages. On these submissions, the learned counsel appearing on behalf of Petitioners submits that the impugned order passed by the College Tribunal is against justice, equity and good conscience and the same is liable to be set aside. 5. On the other hand, the learned counsel appearing on behalf of Respondent no.1 vehemently opposed the present Petition. He submits that the College Tribunal on the basis of evidence on record correctly held that the Petitioners intentionally prevented Respondent no.1 from signing the muster role from 25th July, 2008 and therefore, Respondent no.1 is entitled to a direction against the Petitioners to allow him to join the services. He further submits that Respondent by his letter dated 25th July, 2008, 1st August, 2008 and 5th September, 2008 5 913 wp 4452.11.doc requested the Petitioners to allow him to join the services and in-spite of those requests the Petitioners restrained the Respondent from signing the muster roll and joining his services. Therefore, Respondent no.1 filed Appeal under section 59 of the Maharashtra Universities Act, 1994 and Application for condonation of delay dated 22nd December, 2008. He submits that the Petitioners without holding any enquiry as required by law restrained Respondent no.1 from joining his services from 25th July, 2008. Indirectly, Petitioners terminated his services from 25th July, 2008. He submits that the Tribunal relied on two authorities in the matter of Owesh Alam Mohd Yakub vs. Principal of Maharashtra College of Arts, Science and Commerce reported in 2001-BCR-1-226 and Viveka Nand Sethi vs. Chairman, J & K Bank Ltd. & Ors. reported in 2005 (5) SCC 337 on the point that the employer cannot terminate the Petitioner’s services without following due process of law. He further relies on the Judgment of this Court in the matter of Owesh Alam Mohd Yakub vs. Principal of Maharashtra College of Arts, Science and Commerce reported in 2001-Mh.LJ (2) 72. In that case our High Court has held that the services of concerned employee cannot be 6 913 wp 4452.11.doc terminated without an enquiry on the basis that the period of unauthorised absence of the employee of 30 days only is sufficient to declare the employee as a desert under Rule 50. Para 5 of that judgment reads thus: “5. THE second submission, which has been urged on behalf of the petitioner is equally, of substance. The contention urged is that the petitioner was a confirmed employee and his services should not have been terminated without an enquiry. In (D.K. Yadav v. J.M.A. Industries), 1993 SCC (Labour and Services) 723, it has been held by the Supreme Court that the services of a permanent employee cannot just be struck off the Muster, nor can service be terminated without holding an enquiry. Termination from service attracts a stigma and it causes serious consequences in the life of an employee. The source of livelihood of the employee is sought to be taken away. That being the position, the provisions contained in Rule 50 of the Standard Code must be read in a manner which is consistent with the principles of natural justice. If this is not done the provision would be rendered constitutionally infirm and would be liable to be challenged on the ground that it is arbitrary and ultra virus. 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 7 913 wp 4452.11.doc 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 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 implicity recognise 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. The services of a confirmed employee cannot be terminated without an enquiry, on the basis that the period of unauthorised absence of the employee of 30 days will be sufficient to declare the employee as a deserter, under Rule 50. Rule 50 is a relic of a theory which is fundamentally at odds with our service jurisprudence. The operation of the rule must be structured to make it consistent with the tenets of service law and constitutional safeguards.” 6. On the basis of these submissions, the learned counsel appearing on behalf of Respondent no.1 submits that the Petitioners failed to make out any case for admission and for interim relief and therefore, the Petition deserves to be dismissed. 8 913 wp 4452.11.doc 7. I have gone through the impugned order dated 25th March, 2011 and other evidence on record. It is admitted fact that the Petitioners have not followed due process of law before restraining the Respondent from joining his services from 25th July, 2008. In other words, the Petitioners terminated Respondent no.1’s services with effect from 25th July, 2008 without following due process of law. During the course of argument the learned counsel appearing on behalf of the Petitioners stated that they issued the show cause notice dated 7th November, 2008 and thereafter, letter dated 25th December, 2008. Neither in show cause notice nor in letter dated 25th December, 2008, the Petitioners stated that after following due process of law they terminated Respondent no.1’s services. These facts are considered by the College Tribunal. The College Tribunal specifically held that the Petitioners without holding any enquiry and/or following due process of law terminated the Respondent no.1’s service with effect from 25th July, 2008. Therefore, the Tribunal rightly set aside the termination of Respondent no.1 from 25th July, 2008 and directed the Petitioners to reinstate him in service with effect from 25th July, 2008 with full back wages and continuity in service. The 9 913 wp 4452.11.doc Tribunal also granted liberty to the Petitioners to follow the procedure as prescribed by law in respect of absence/misconduct of an employee if they so desire. Considering the reasons given by the College Tribunal in the impugned order dated 25th March, 2011 and considering the fact that admittedly, the Petitioners have not followed the procedure prescribed by law and considering the law declared by this court in the matter of Owesh Alam Mohd Yakub vs. Principal of Maharashtra College of Arts, Science and Commerce (supra), I do not find any reason to interfere with the well reasoned order of Tribunal dated 25th March, 2011. 8. In respect of payment of full back wages, it is to be noted that admittedly, Respondent no.1 was providing his vehicle to Sakal news paper since 2004, i.e. even during the period he was in service and on that basis the back wages cannot be denied to him. 9. In the result, there is no substance in the Petition and it stands dismissed. 10.No order as to costs. (K.K.TATED,J.)