Reinstating conductors, suspended for indulging in financial frauds and dishonesty is against constitutional values, Kutumb Suraksha Yojna quashed: Bombay High Court

 on 30 04 2021 on 01 05 01 17 PIL: 1. The scheme attempted to be introduced by the MaharashtraState Road Transport CorporationRespondent No.2 as “Kutumb Suraksha Yojna” wherebyterminated or suspended conductors are sought to be re appointedunder the said scheme is under challenge in the present Suo MotoPublic Interest Litigation.Background of PIL 2.One Mr. Sharad Babrao Pote and others had filed writ petitionNo.100316 before this Court and sought relaxation of the agerestriction made under the notification of the MSRTC from 45 tohigher age in order to get benefit of the said scheme “KutumbSuraksha Yojna”. The said writ petition was placed before the DivisionBench of this Court on 30.06.2017 when this Court noticed that thescheme floated by the MSRTC is against the public interest since theemployees who were charged or terminated or suspended on accountof mis appropriation of funds sought to be re appointed under theguise of the scheme. This Court converted the above said writpetition into Suo Moto Public Interest Litigation to consider the on 30 04 2021 on 01 05 01 17 PIL4 SCC 126.(iii)Jaskaran Singh Brar Vs. State of Punjab reported in 2005SLJ 354.(iv) Sushil Kumar Singhal Vs. Regional Manager Punjab National Bank reported in8 SCC 573. 13.Per contra Mr. Sapkal learned Senior Counsel supported theCircular impugned Scheme. Mr. Sapkal submitted that the PublicInterest Litigation in service matters cannot be entertained. Theimpugned Circular is in between the MSRTC and its employees. There on 30 04 2021 on 01 05 01 17 PILHari Bansh Lal Vs. Sahodar Prasad Mahto and others reported in AIR 2010 SC 351515.We have considered the arguments advanced by Mr.Gangakhedkar the learned amicus curiae and Mr. Sapkal learnedSenior Counsel. 16.The Public interest litigation is a weapon which has to be usedwith great care and caution. It is to be used as an effective weapon inthe armory of law for delivering social justice to the citizens. It shouldbe aimed at redressal of genuine public wrong or public injury andnot publicity oriented or based on personal vendetta. It is the duty ofthe Court to see that a persons approaches the court by way of publicinterest litigation is acting bona fide and not for personal gain orprivate motive or political motivation or other oblique considerations.17.In case of Dr. Duryodhan Sahu Vs. Jitendra Kumar Mishrareported in AIR 1999SC 114 it is ruled by the Hon’ble Supreme Courtthat the Public Interest Litigation should not be entertained involvingservice matters. The same view find place in case of Dattaraj NathujiThaware Vs. Sate of Maharashtra and othersit is held by the Hon’ble Supreme Court that in PublicInterest Litigation involving service matters the Public Interest1 on 30 04 2021 on 01 05 01 17 PILit is held by the Hon’ble Supreme Court that in servicematters the role of the Court is to ensure rule of law and to see thatexecutive acts fairly.20.In case of State of Orrisa Vs. Bimbalkumar Mohanty itis held by the Hon’ble Supreme Court as under:“Normally when an appointing authority or the disciplinaryauthority seeks to suspend an employee pending inquiry orcontemplated inquiry or pending investigation into gravecharges of misconduct or defalcation of funds or seriousacts of omission and commission the order of suspensionwould be passed after taking into consideration the gravityof the misconduct sought to be inquired into or investigatedand the nature of the evidence placed before the appointingauthority and on application of the mind by disciplinaryauthority. Appointing authority or disciplinary authorityshould consider the above aspects and decide whether it isexpedient to keep an employee under suspension pendingaforesaid action. It would not be as an administrativeroutine or an automatic order to suspend an employee. Itshould be on consideration of the gravity of the allegedmisconduct or the nature of the allegations imputed to thedelinquent employee. The Court or the Tribunal mustconsider each case on its own facts and no general lawcould be laid down in that behalf. Suspension is not apunishment but is only one of forbidding or disabling anemployee to discharge the duties of office or post held byhim. In other words it is to refrain him to avail further1 on 30 04 2021 on 01 05 01 17 PILtheallegations of fraud in public employment centrestaged on the"procedure and mechanism" adopted by the State of Punjab in thewholesome selection of Deputy Superintendent of Policefrom"Outstanding Sports Persons" can be a subject matter of publicinterest litigation the legality and propriety of these selections wasraised in writ petition along with the public interest litigation. ThePunjab nd Haryana High Court was pleased to entertain that thosepetitions and issued certain directions to the State of Punjab.1 on 30 04 2021 on 01 05 01 17 PILit is held by the Hon’ble Supreme Court that inService Law conviction of a person in crime involving moralturpitude impeaches his credibility as he has been found to haveindulged in a shameful wicked and base activity such an employeecannot be directed to be reinstated in service. 23.In case of National Association of Blind Vs. Bombay MunicipalCorporation reported in 2020 SCC Online Bom 2032 the DivisionBench of this Court at Principal Seat at Bombay has laid down thefollowing tests after having gone through the various authorities. Thetests to entertain the Public Interest Litigation are as under:“(a) that the PIL petition is not a camouflage to fosterpersonal disputes that behind the beautiful veil of public interest anugly private malice vested interest and or publicityseeking is not lurking that the PIL petition is not intended to besmirch thecharacter of others that the information given in the PIL petition issufficient to show the gravity and seriousness involved and 1 on 30 04 2021 on 01 05 01 17 PILthat the PIL petition is not mischievous seeking toassail an executive action for oblique motives. 24.The Division Bench of this Court while hearing the writ petitionNo.100316prima facie noticed that the schemelaunched by the MSRTC to re appoint the suspended or terminatedconductors under the scheme “Kutumb Suraksha Yojana” is againstthe public interest and directed to initiate Suo Moto Public InterestLitigation to consider notification in question. In that background it isdifficult to accept the argument advanced by the learned SeniorCounsel that the instant Public Interest Litigation relating to servicematter is not maintainable. 25.It is tried to be canvassed before us that for the welfare of thefamily members of suspended or dismissed conductors of the MSRTC the impugned scheme is launched. It is by way of rehabilitation ofsuspended dismissed conductors and their families. It is for theirwelfare and to protect their fundamental rights. We are not impressedby such argument. The MSRTC is run and controlled by the State ofMaharashtra. The Corporation is rendering its services to the public atlarge. The policy decisions taken by the State Government from timeto time are also applicable to the MSRTC.1 on 30 04 2021 on 01 05 01 17 PILThe Suo Moto Public Interest Litigation is hereby allowed.(ii)The impugned scheme known as Kutumb Suraksha Yojana bearing No.25 2016 dated 6.8.2016 is hereby quashed andset aside.(iii)The Registrarto forward copy of this judgment and order to the Managing Director M.S.R.T.C. Mumbai for information and further necessary action.2 on 30 04 2021 on 01 05 01 17 PILand the Secretary High Court Legal Services Sub Committee at Aurangabad shall pay the abovequantified fees to learned Counsel Mr S.S. Gangakhedkar.38.Suo Moto Public Interest Litigation stands disposed of in aboveterms. ( S.V. GANGAPURWALA ) JUDGE JUDGE S.P. Rane39Mr. Gangakhedkar the learned advocate graciously submitsthat the fees be remitted to the Government Medical College andHospital Aurangabad.40.We appreciate the gesture of Mr. Gangakhedkar the learnedadvocate. The said fees be remitted to the Government MedicalCollege and Hospital Aurangabad. SHRIKANT D. KULKARNI ) JUDGE JUDGE S.P. Rane2 

Summary: The impugned scheme is unique and novel as it says a complete goodbye to laws and is against the interest of the public at large, especially the youth. The decision of the administrator must be within four corners of the law, and not one which no sensible person could have reasonably arrived at having regard to the principle of reasonableness. MSRTC fails to satisfy the test and standard of reasonableness since the object behind the scheme appears to be not bona fide and instead of a blatant abuse of powers. This remarkable judgment was passed by the Bombay High Court in THE HIGH COURT OF BOMBAY, AURANGABAD BENCH V STATE OF MAHARASHTRA [SUO MOTO PUBLIC INTEREST LITIGATION NO. 01 OF 2017] by Honourable Justice S.V. Gangapurwala and Honourable Justice Shrikant D. Kulkarni. The scheme introduced by the Maharashtra State Road Transport Corporation as “Kutumb Suraksha Yojna” through which, terminated or suspended conductors are sought to be re-appointed under the said scheme, is being challenged in this Suo Moto Public Interest Litigation. Several writ petitions were filed before this Court seeking relaxation of the age restriction made under the notification of the MSRTC from 45 to higher age in order to get benefit of the said scheme “Kutumb Suraksha Yojna”. The said writ petition was placed before the Division Bench of this Court when this Court noticed that the scheme floated by the MSRTC is against the public interest since the employees who were charged or terminated or suspended on account of mis-appropriation of funds sought to be re-appointed under the guise of the scheme. This Court, converted the above said writ petition into Suo Moto Public Interest Litigation to consider the notification in question since it is against the interest of the public at large. The facts leading to this Suo moto PIL are, MSRTC came up with a novel scheme of re-appointment of those conductors who are either suspended or terminated in order to extend financial benefits to the family members of such conductors under the scheme “Kutumb Suraksha Yojna”. In the official circular, it was mentioned that conductors who are dismissed on account of mis-appropriation or any charges of fraud or otherwise, will be re-appointed. The intention in launching such scheme was tried to be canvassed in such a fashion to show that due to the litigation between the MSRTC and the suspended conductors, heavy financial loss is being caused to the Corporation and also it was stated that due to the misdeeds of the conductor their family members are facing financial problems and in order to protect their families, such a scheme is launched in for their benefit. MSRTC took a stand and submitted that the object of the scheme was that the family members should not be punished for the actions of their sole bread earner. Also, another aspect was based on Gandhian philosophy since this scheme provided an opportunity for such conductors to reform themselves by getting a fresh appointment and begin their employment fresh. It was contended by the petitioners that the said scheme clearly amounts to giving price or reward to an employee who has been suspended or dismissed from services on account of mis-appropriation of funds. It is somewhat novel idea tried to be introduced by the MSRTC against the settled provisions of law since the scheme is against the Constitutional provisions. The Division Bench strictly stated, “It is tried to be canvassed before us that for the welfare of the family members of suspended or dismissed conductors of the MSRTC, the impugned scheme is launched. It is by way of rehabilitation of suspended/dismissed conductors and their families. It is for their welfare and to protect their fundamental rights. We are not impressed by such argument.” Labour Legislation is adapted to overcome economic and social challenges at the modern world of work and there are various State and Central Laws which take care of welfare of labors but such schemes could not be against constitutional values. “There cannot be a debate that welfare of the employees is to be protected by the employer. At the same time, whatever policy decision is to be taken, it must be in consonance with the rules and regulations and should be reasonable and not irrational. The decision or the policy should not be against the public interest, which may hamper the generation of employment.” Provisions in the scheme are arbitrary since instead of taking action against the Conductors as per the procedure of discipline and appeals, the Conductors are allowed to be reappointed/reinstated in view of the scheme by recovering the misappropriated amount from them. “Where the MSRTC is dealing with the public, it cannot act arbitrarily at its sweet will. Its action must be in conformity with the standards or norms, which is rational. Justice and fairness and State action are essences of Article 14 of the Constitution of India and State instrumentality like MSRTC should satisfy that requirement.”