I THROUGH ZILLA PARISHAD, PARBHANI AND OTHERSVERSUSSMT. JYOTI PANDITRAO KACHVEMr v. V. Bhavthankar
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 3245 OF 2022MUKHYADHIKARI THROUGH ZILLA PARISHAD, PARBHANI AND OTHERSVERSUSSMT. JYOTI PANDITRAO KACHVEMr. V. V. Bhavthankar, Advocate for the petitioners Mr. S. T. Solanke, Advocate for the respondent CORAM: R. M. JOSHI, J.DATE: 25th JUNE, 2024PER COURT :-1.Petitioners being aggrieved by judgment dated 24/10/2018passed by Labour Court, Nanded in Complaint (ULP) No.5/2017 andconfirmation of the said order by the Industrial Court by order dated06/01/2022 in Revision (ULP) Application No. 22/2019, have filed thisPetition.2.Parties are referred to as complainant and employer for thesake of convenience.3.It is the case of the complainant that she was appointed asBlock Facilitator under Asha Swayamsevika Yojana which is part ofNational Rural Health Project of Central Government. She claims to havebeen continuously working with the employer since 2009. It is allegedwp34245.22.odt1 of 6
Legal Reasoning
misconduct, then conducting of the departmental inquiry against her ismust. It is his submission that once the termination is held to be illegal,the only consequences thereof would be her reinstatement in the service.8.There is no dispute about the fact that the complainant wasappointed as Block Facilitator under Asha Swayamsevika Yojana. She wasappointed in the year 2009 and came to be terminated with effect from03/01/2017. Even for the sake argument contention of the employer isaccepted that she was not appointed on a vacant post or by followingprocess of law, question arises as to whether it is open for the employerto terminate the services of any employee for the misconduct withoutfollowing due process of law and without conducting departmentalinquiry against her. Since the instant case the complainant is terminatedfor various alleged misconducts as such non performance of work, failureto take cognizance of the notices and to vacate the Governmentquarters, absence without leave, arrogant behaviour with superiors etc.termination of her services without proof of the same amounts to a blotas it is a punitive action. This is not case where termination of thecomplainant is effected for the reason that her performance is not up tothe mark but the termination is clearly for the misconduct as mentionedabove. In such circumstances it was not open for the respondent toterminate the services of the complainant without affording herwp34245.22.odt4 of 6 opportunity to defend such allegations and conducting an inquiry againsther and without following due process of law. The termination in thiscase therefore contrary to the principles of natural justice. Perusal of thejudgment in case of Bharat Sanchar Nigam Ltd., Pune (cited supra)shows that it is held by the Division Bench that when the workman asnot being appointed against the vacant post by following statutoryprovisions, no notice is necessary and to follow provision of Section 25Fof the Industrial Disputes Act. Facts of the said case do not indicate thatthe said workman was terminated for misconduct without following dueprocess of law and without conducting inquiry. In the instant case,however, since the termination is for misconduct and without inquiry, thesaid judgment has no application to the case in hand.9.A specific query was made by this Court to the learnedcounsel for the petitioner-employer as to whether any leave was soughtfrom the Labour Court to prove the misconduct. Since no such prayersseems to have been made by the employer before the Labour Courtquestion of permitting the employer to prove the misconduct does notarise as held in the judgment of the Hon’ble Supreme Court in case ofKARNATAKA STATE ROAD TRANSPORT CORPN. Vs. LAKSHMIDEVAMMA &ORS, MANU/SC/0314/2001.wp34245.22.odt5 of 6 10.Once it is held that the termination of the workman is illegaland by non compliance of the principles of natural justice and conductinginquiry, the same deserves to be set aside. As employer is found to haveengaged in unfair labour practices, having regard to the provisions ofMRTU & PULP Act, he is needs to be directed to desist the same.Consequence thereof would be to restore the status of the complainantin the service.11.Such reinstatement in the service however, cannot beconstrued as a regularization. In fact the Labour Court has also notgranted any regularization, however, by way of abundant caution it isclarified that the order of reinstatement shall not be treated as herregularization in service, though it may be open for us her to pursue thesaid claim with employer as per law. As far as the refusal of back wagesto the complainant is concerned, since she has not challenged the saidorder, it has attained finality requiring no interference.12.In view of the above discussion, Petition sans merit hencestands dismissed.(R. M. JOSHI, J.)sspwp34245.22.odt6 of 6
Arguments
that from time to time she was given letters of appointment. It is specificclaimed that she has completed 240 days of continuous service in eachyear. According to the complaint, on 05/11/2016 she was issued lettercalling upon her to vacate the Government quarters and on that countthere was dispute between them. It is alleged that several allegations ofmisconduct were made against her and for the same she was terminatedwith effect from 03/01/2017. It is specifically claimed that before causingher termination no inquiry was conducted and principles of naturaljustice were not followed. This being unfair labour practices, complainantfiled Complaint (ULP) No. 5/2017 challenging the order of termination ofher services.4.It is the case of the employer that the scheme is formedunder the National Rural Health Project of Central Government and itrequires appointment of the persons as per the guidelines laid down forthe selection and appointment. It is contended that the complainant wasnever employed by following due process of law. It is specific case of theemployer that her appointment is for 11 months and there was break inservice as such she has not completed 240 days of service as claimed. Itis further averred that she was entitled for traveling allowance ofRs.150/- per visit to the maximum of Rs.3,000/- monthly and that wasnot paid any wages like regular employee. It is further claimed that sincewp34245.22.odt2 of 6 2015 the complainant committed serious irregularities in her work andalso took possession of Government quarters without prior permission ofthe Medical Officer and failed to vacate the same in spite of repeatednotices. Hence on these ground after issuing show cause notice she wasterminated. It is claimed that for the purpose of termination of thecomplainant the conducting of any enquiry is not mandatory.5.Learned counsel for the Petitioners-employer submits thatsince the complainant was not appointed against a vacant post byfollowing statutory provisions, no inquiry is contemplated beforetermination of her services. To support his submission he placed relianceon the judgment in case of Bharat Sanchar Nigam Ltd., Pune Vs.Balasaheb Maruti Poojari and another, 2006(5) Mh.L.J. It is alsosubmitted that the law on the point of the regularization / reinstatementis settled to say that the persons who are not appointed on clear vacantpost and by following due process of law are not entitled forreinstatement and regularization. Thus, it is his contention that on thisground the order of passed by the Labour Court which is confirmed bythe Industrial Court deserves interference.7.Learned counsel for the complainant submits that irrespectiveof the status of the complainant, if her services are terminated for thewp34245.22.odt3 of 6