MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS v. ANIL RAMRAO HIWANT AND OTHERS
Case Details
14764.21wp etc (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 901 WRIT PETITION NO.14764 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS ANIL RAMRAO HIWANT AND OTHERS WITH WRIT PETITION NO.14767 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS RANJANSINGH GURCHARANSINGH SANDHU AND OTHERS WITH WRIT PETITION NO.14768 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS SHYAM SOPANRAO TUGAONKAR AND OTHERS WITH WRIT PETITION NO.14769 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS DHARAJI UTTAMRAO WAGHMARE AND OTHERS WITH WRIT PETITION NO.14770 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS 14764.21wp etc (2) SHRIDHAR RAJANNA KURA AND OTHERS WITH WRIT PETITION NO.14781 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS VIKAS SITARAM KATAKDOUND AND OTHERS WITH WRIT PETITION NO.14782 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS VIJAY NARAYANRAO SAWANT AND OTHERS WITH WRIT PETITION NO.14783 OF 2021
Legal Reasoning
also perused. It is well settled that, if such an order or material, which a prospective employer is likely to peruse, is likely to create a picture which is prejudicial to the interest of the employee, future prospects of employment are jeopardized. 14764.21wp etc (13) 6. It is also well settled that, if an employer finds that the service of a probationer is not suitable for the organization, an innocuous order of disengagement mentioning that his services are not suitable, would not amount to a stigmatic termination. 7. It appears from the record that the learned Tribunal was not cited two Judgments delivered by the Hon’ble Apex Court. Firstly, the view taken in Bharat Forge Company Ltd. v/s A.B.Zodge , 1996 (73) FLR 1754 : AIR 1996 SC 1556, wherein, the Hon’ble Apex Court has concluded that, if an employee is terminated by issuance of a stigmatic order containing allegations of misconduct and no enquiry is conducted or in a case, where the enquiry conducted has been set aside/vitiated, it would be a case of no enquiry having been conducted. The employer then has the liberty to conduct an enquiry. In Labour Legislation, the Tribunal quashing the enquiry then assumes the role of the Enquiry Officer and a denovo enquiry is conduced in the Court. Secondly, in cases of employees, who are in the education field, be it the teaching or non-teaching staff, the law laid down in Vidya Vikas Mandal and ors. Vs. the Education Officer and others, 2007 (11) SCC 352, would be applicable. It has been held that the dismissal/termination of such employee is to be quashed and set 14764.21wp etc (14) aside and notionally such employee shall be reinstated in service. However, from the date of his termination, he shall be treated to be under suspension and a departmental enquiry will have to be conducted by the employer by paying suspension allowance from the termination, till the enquiry is concluded and a final decision is arrived at by the employer. 8. Paragraph 9 of Vidya Vikas Mandal (supra) reads as under : In view of the order now passed by this Court, “9. the Rule 36(2) (a) is now to be invoked and as per the said Rule, one member from amongst the members of the Management is to be nominated by the Management or by the President of the Management if so authorised by the Management, and one member is to be nominated from amongst the employees of any private school and the third member to be chosen by the Chief Executive Officer from the panel of teachers on who State/National Award has been conferred. We direct the Management of the School to constitute the Committee in accordance with Sub-Rules (i) (ii) & (iii) of Rule 36(2)(a) to go into the matter afresh. The respondent No. 2, the employee, will be now treated under suspension and he will be entitled to the subsistence allowance as per rules with effect from the date of termination of his services. The inquiry shall be completed by the Committee within a period of six months their the nomination/constitution.” from date of 14764.21wp etc (15) 9.
Arguments
MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS MOHAMMED IMRAN KHAN OTHERS WITH WRIT PETITION NO.14784 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS VIJAY HARIHAR BHAGAT AND OTHERS WITH WRIT PETITION NO.14787 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS 14764.21wp etc (3) VERSUS DINSH VIRBHADRA SHETTE AND OTHERS WITH WRIT PETITION NO.14788 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS BALAPRASAD PURUSHOTTAM KURPATWAR AND OTHERS WITH WRIT PETITION NO.14789 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS DEVIDAS CHIMANJI HATKAR DIED LRS. KARUNA DEVIDAS HATKAR AND OTHERS WITH WRIT PETITION NO.14790 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS SATISH DILIP PAWAR AND OTHERS WITH WRIT PETITION NO.14778 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS SAHEBRAO VINAYAKRAO DESHMUKH AND OTHERS WITH 14764.21wp etc (4) WRIT PETITION NO.14796 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS SHRIKANT SHAMRAO THETE AND OTHERS WITH WRIT PETITION NO.14798 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS AKSHAY ARUN KAGBATTE AND OTHERS WITH WRIT PETITION NO.14795 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS SANJAY ANANDRAO SHINDE AND OTHERS WITH WRIT PETITION NO.14797 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS GANESH BABRUWAN DAPKE AND OTHERS WITH WRIT PETITION NO.14779 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS 14764.21wp etc (5) ANKUSH KISANRAO RUDE AND OTHERS WITH WRIT PETITION NO.14772 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS PREMKUMAR DATTARAO SURYAWANSHI AND OTHERS WITH WRIT PETITION NO.14791 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS GAJANAN PRABHAKAR MALWATKAR AND OTHERS WITH WRIT PETITION NO.14775 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS VAISHALI CHANDRAKANT CHORMARE AND OTHERS WITH WRIT PETITION NO.14780 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS SANJAY VYANKANNA GORANTIWAR AND OTEHRS WITH WRIT PETITION NO.14785 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS 14764.21wp etc (6) VERSUS GIRISH VYANKATRAO MULKE AND OTHERS WITH WRIT PETITION NO.14771 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS PATHAN AJMAT KHAN OTHERS WITH WRIT PETITION NO.14774 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS ULHAS MAROTI RATHOD AND OTHERS WITH WRIT PETITION NO.14792 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS VIKAS ARJUNRAO PAWDE AND OTHERS WITH WRIT PETITION NO.14776 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS BALGIR DIGAMBAR GIRI AND OTHERS WITH WRIT PETITION NO.14765 OF 2021 14764.21wp etc (7) MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS YASHWANT GOVINDRAO MOKHEDE AND OTHERS WITH WRIT PETITION NO.14777 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS SHIVAJI BALASAHEB KALE AND OTHERS WITH WRIT PETITION NO.14766 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS SACHIN NAVALCHAND RATHOD AND OTHERS WITH WRIT PETITION NO.14793 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS GOVIND VENKATRAO KURUMBHATTE AND OTHERS WITH WRIT PETITION NO.14794 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS GOVIND RAMRAO SHIVBHAKT AND OTHERS WITH 14764.21wp etc (8) WRIT PETITION NO.14773 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS RUSHIKESH RAMESHWAR YENNAWAR AND OTHERS WITH WRIT PETITION NO.14786 OF 2021 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS CHAKRADHAR PURBHAJI MUNGAL AND OTHERS WITH WRIT PETITION NO.3320 OF 2022 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS DHIRAJ WAMANRAO BIDVE AND OTHERS WITH WRIT PETITION NO.3316 OF 2022 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS SHIVKUMAR MURLIDHAR SAPARE AND OTHERS WITH WRIT PETITION NO.3317 OF 2022 MATOSHRI PRATISTHAN THROUGH ITS SECRETARY AND OTHERS VERSUS 14764.21wp etc (9) PRAFULL VITHALRAO DHOLE AND OTHERS ... Mr S. S. Bora, Advocate for petitioners; Mr N. T. Bhagat, A.G.P. for respondents/State Mr S. B. Deshpande and Shri. A. G. Talhar, Advocate for respondent No.1 in respective writ petitions Mr C. V. Dharurkar, Advocate for respondent No.4 except in Writ Petition No.14779/2021 CORAM : RAVINDRA V. GHUGE, J DATE : 16th March, 2022 PER COURT: 1. In all these petitions filed by the same petitioner/ Management, respondent No.1/Employees are identically placed. Hence, by the consent of the parties, these matters were heard together on 14/03/2022 and today. 2. The learned Advocate for the petitioner/Management has strenuously criticized the impugned order delivered by the University and College Tribunal, Aurangabad. It is a common Judgment delivered by the University Tribunal, in which the operative part of the order reads as under : “O R D E R I) SRTMU-12 OF 2019, SRTMU-13 OF 2019, SRTMU-14 OF 2019, SRTMU-15 OF 2019, SRTMU- 16 OF 2019, SRTMU-18 OF 2019, SRTMU-21 OF 2019, SRTMU-22 OF 2019, SRTMU-23 OF 2019, SRTMU-24 OF 2019, SRTMU-25 OF 2019, SRTMU- 26 OF 2019, SRTMU-27 OF 2019, SRTMU-28 OF 2019, SRTMU-29 OF 2019, SRTMU-30 OF 2019, 14764.21wp etc (10) SRTMU-31 OF 2019, SRTMU-32 OF 2019, SRTMU- 33 OF 2019, SRTMU-34 OF 2019, SRTMU-35 OF 2019, SRTMU-36 OF 2019, SRTMU-37 OF 2019, SRTMU-38 OF 2019, SRTMU-39 OF 2019, SRTMU- 42 OF 2019, SRTMU-43 OF 2019, SRTMU-44 OF 2019, SRTMU-45 OF 2019, SRTMU-46 OF 2019, SRTMU-47 OF 2019, SRTMU-49 OF 2019, SRTMU- 50 OF 2019, SRTMU-51 OF 2019, SRTMU-52 OF 2019, SRTMU-53 OF 2019, SRTMU-54 OF 2019, SRTMU-55 OF 2019, SRTMU-56 OF 2019 WITH SRTMU-04 OF 2020 are allowed. The impugned termination orders of the ii) appellants in above appeals, are set aside. (iii) Respondent Nos.1 to 3 are directed to reinstate the appellants, within period of three months from the date of passing of this order, on the same post held by them before termination. In Appeal Nos.:- 30/2019, 22/2019, L.Rs of the (iv) appellants are entitled to back wages from the date of termination till the date of death of the appellants. (v) In rest of the appeals, except Appeal Nos.:- 17/2019, 19/2019, 20/2019, 37/2019, 40/2019, 41/2019, 48/2019, appellants are entitled to full back wages from the date of termination till the date of reinstatement. Back wages be paid by Respondent Nos. 1 to 3 within three months from the date of passing this order. 20/2019, 19/2019, Appeal Nos.:-17/2019, vi) 37/2019, 40/2019, 41/2019, 48/2019 are dismissed. vii) Parties to bear their respective costs. vii) The original judgment be kept in Appeal No. 12 of 2019 and copies of the judgment, be kept in remaining appeals.” 14764.21wp etc (11) 3. I have considered the strenuous submissions of the litigating parties and having gone through the record with their assistance. Issue is that, the impugned termination orders have been set aside by the Tribunal on the ground that they are stigmatic. All these employees have been working with the Management in the same Institute on different positions in between one year to 10 years. Each one of them were issued with an identical order of discontinuation. Reference has been made to their first appointment order. 4. The order of discontinuation specifically mentions the following charges, reproduced verbatim :- “1. ….… 2 . As per engagement order it is also clarified that, if you found irregular and negligent your appointment will be terminated. 3. The college authorities on its reviewal found your work to be extremely unsatisfactory. 4. You are not performing your duties from 5.4.2019 and remained absent without prior permission of Dean School of Engineering. 5. You were found in the college premises out of the duty room during your prescribed college hours. 6. Your consistent behaviour of not attending the 14764.21wp etc (12) duties resulted in incomplete syllabus. 7. From the attendance register it is observed that many times you remain absent in the college without taking prior permission of the Dean, which result a great academic loss of the student.” 5. It is undisputed that the Management has not conducted any departmental enquiry with regard to any of these employees. Considering the law laid down in Radhey Sham Gupta Vs. U.P. State Agro Corporation Ltd. and Anr., [(1999) 2 SCC 21] and in Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, [(1993) 3 SCC 60], even if an employee is a temporary or on probation, a stigmatic termination from service is held to be an anathema, since the order of discontinuation is normally to be produced by the employee while seeking a new employment. The prospective employer insists on the Character Certificate or the Service Certificate of the erstwhile employer and along with the same, the order of discontinuation is
Decision
In view of the above, these petitions are partly allowed and the directions set out in Clause (v) of the impugned order stands modified as under :- (v-a) In rest of the appeals, except Appeal Nos.17/2019, 19/2019, 20/2019, 37/2019, 40/2019, 41/2019 and 48/2019, the appellants would be notionally treated to have been reinstated in service and from the date of their termination, they would be treated as being under suspension, till a final decision by the employer is arrived at. (v-b) If the employer decides to issue an innocuous order to the temporaries or daily wagers or probationers, who are not deemed to be permanent, this relief would apply till the date of their disengagement. (v-c) In cases, where the Management deems it appropriate to conduct a departmental enquiry, this relief would apply till the final decision is arrived at by the employer after concluding the departmental enquiry. (v-d) Needless to state, the Management would be duty bound to pay subsistence allowance regularly along 14764.21wp etc (16) with the arrears to each of these employees, subject to the above directions. (RAVINDRA V. GHUGE, J.) sjk