The instant writ petition v. State of Goa & Ors.

Judgment

#1. Article 226/227 By way of instant writ petition, filed under Article 226/227 By way of instant writ petition, filed of the Constitution of India, the Management has questioned the of the Constitution of India, legality the Management has questioned the legality vide which, the Presiding of the order dated 09.11.1993 (Annexure P-29), vide which, the Presiding of the order dated 09.11.1993 (Annexure P of the order dated 09.11.1993 (Annexure P set aside the Officer, State Schools and Colleges Tribunal Punjab, has set aside the Officer, State Schools and Colleges Tribunal Pun Officer, State Schools and Colleges Tribunal Pun , the Director Public Instruction order dated 13.11.1992, whereby, the Director Public Instruction , the Director Public Instruction order dated 13.11.1992, whereby to terminate the (Schools), Punjab, had concurred with the decision to terminate the (Schools), Punjab, had concurred with (Schools), Punjab, had concurred with services of late Sh. Satpal Gupta (employee) services of , with a late Sh. Satpal Gupta (employee), w.e.f. 12.03.1987, with a direction to reinstate him in service, forthwith. direction to A further mandate was n service, forthwith. A further mandate was the absent period, in accordance with relevant also issued to regularize the absent period, in accordance with relevant the absent period, in accordance with relevant also issued Rules.

#2. has traversed a journey spanning Since the matter at hand has traversed a journey spanning has traversed a journey spanning CWP-2322 2322-1994 (O&M) -2- over decades, it decades, it has acquired a chequered history chequered history. Therefore, a brief recapitulation of the proceedings before this Court is indispensable. recapitulation of the proceedings before this Court is indispensable. recapitulation of the proceedings before this Court is indispensable.

The instant writ petition, for the first time, came up for , for the first time, came up for preliminary hearing on 21.03.1994, when preliminary notice of motion was issued, when notice of motion was issued, stayed till further order. and operation of the impugned order was also stayed till further order. and operation of the impugned order was and operation of the impugned order was was admitted, vide order dated 07.02.1995, with Eventually, the petition was admitted, vide order dated 07.02.1995, with was admitted, vide order dated 07.02.1995, with Eventually, stay order to remain in operation order to remain in operation. Thereafter , on 21.01.2016, the matter Thereafter, on 21.01.2016, the matter final hearing, and a Coordinate Bench had partly was taken up for final hearing, and a Coordinate Bench had partly final hearing, and a Coordinate Bench had partly was taken up ition, holding that the Tribunal had erred in law by allowed the petition, holding that the Tribunal had erred in law by ition, holding that the Tribunal had erred in law by allowed the pet awarding reinstatement to the respondent awarding reinstatement to . Rather, it ought to respondent-employee. Rather, it ought to have applied the law laid down by the have applied Supreme Court in law laid down by the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad Vs. B. Karunakar etc., AIR 1994 Managing Director, ECIL, Hyderabad Vs. B. Karunakar etc., AIR 1994 Managing Director, ECIL, Hyderabad Vs. B. Karunakar etc., AIR 1994 Managing Director, ECIL, Hyderabad Vs. B. Karunakar etc., AIR 1994 SC 1074, per which, liberty c still be granted to the Management to , per which, liberty could still be granted to the Management to still be granted to the Management to hold a regular a regular enquiry against the employee. Accordingly, it was enquiry against the employee. Accordingly, it was , where a regular inquiry was not conducted and approval observed that, where a regular inquiry was not conducted and approval , where a regular inquiry was not conducted and approval observed that was reversed, reinstatement would not follow automatically, and thus, the was reversed, reinstatement would not follow automa was reversed, reinstatement would not follow automa Management could be extended liberty to Management regular enquiry by could be extended liberty to hold a regular enquiry by associating the delinquent in the proceedings. associating the delinquent in the proceedings. associating the delinquent in the proceedings.

#4. order dated 21.01.2016 The concluding paragraph of the order dated 21.01.2016 The concluding paragraph of the (supra), reads as under: reads as under:- “10. To that extent, this petition is allowed. The period To that extent, this petition is allowed. The period covered by the stay order will henceforth be treated as under covered by the stay order will henceforth be treated as under covered by the stay order will henceforth be treated as under deemed suspension till disciplinary proceedings are held and deemed suspension till disciplinary proceedings are held and deemed suspension till disciplinary proceedings are held and taken to its logical conclusion. The petitioner will have no more taken to its logical conclusion. The petitioner will have no more taken to its logical conclusion. The petitioner will have no more than 4 months to re-do the inquiry in accordance with law and if do the inquiry in accordance with law and if the respondent cooperates in the proceedings and requests no the respondent cooperates in the proceedings and requests no the respondent cooperates in the proceedings and requests no unnecessary adjournments, failing which the respondent will be unnecessary adjournments, failing which the respondent will be unnecessary adjournments, failing which the respondent will be reinstated to service on expiry of the period granted.” reinstated to service on expiry of the period granted. CWP-2322 2322-1994 (O&M) -3-

#5. - Aggrieved by the abovesaid decision, the respondent- Aggrieved by the abovesaid decision, employee employee ourt appeal intra-court appeal 2016). Upon (LPA-494-2016). Upon (LPA consideration of the matter, the Division Bench did not find any merit in consideration of the matter, the Division Bench did not find any merit in consideration of the matter, the Division Bench did not find any merit in consideration of the matter, the Division Bench did not find any merit in the appeal appeal, and accordingly, dismissed the , vide order dated , and accordingly, dismissed the same, vide order dated

09.05.2016. Thereafter, 09.05.2016. Thereafter, oyee, once respondent-employee, once respondent again, again, - approached this Court by way of a contempt petition, i.e. COCP-1908- approached this Court by way of a contempt petition, i.e. COCP approached this Court by way of a contempt petition, i.e. COCP On 13.02.2017, the learned Contempt Court had passed the 2016. On 13.02.2017, the learned Contempt Court had passed the On 13.02.2017, the learned Contempt Court had passed the On 13.02.2017, the learned Contempt Court had passed the hereinafter extracted order:- hereinafter extracted order: - “The present contempt petition has been filed for non The present contempt petition has been filed for non- ted 21.01.2016 passed by this Court. compliance of order dated 21.01.2016 passed by this Court. ted 21.01.2016 passed by this Court. Learned counsel for the respondents submits that the petitioner Learned counsel for the respondents submits that the petitioner Learned counsel for the respondents submits that the petitioner was not in service as he was to superannuate at the age of 58 was not in service as he was to superannuate at the age of 58 was not in service as he was to superannuate at the age of 58 operate years i.e on 29.02.2004. He was called but he did not co-operate years i.e on 29.02.2004. He was called but he did not co with the enquiry. Learned counsel for the petitioner submits that there was Learned counsel for the petitioner submits that there was Learned counsel for the petitioner submits that there was operated as and no fault on the part of the petitioner and he co-operated as and no fault on the part of the petitioner and he co when he was called by the authorities concerned. He further when he was called by the authorities concerned. He further when he was called by the authorities concerned. He further submits that nothing was paid to the petitioner in spite of order submits that nothing was paid to the petitioner in spite of order submits that nothing was paid to the petitioner in spite of order by this Court on 21.01.2016. passed by this Court on 21.01.2016. The enquiry as ordered by this Court was not completed The enquiry as ordered by this Court was not completed The enquiry as ordered by this Court was not completed within a period of four months. It appears that the order was within a period of four months. It appears that the order was within a period of four months. It appears that the order was passed contrary to the facts and true facts were not brought to passed contrary to the facts and true facts were not brought to passed contrary to the facts and true facts were not brought to dated 21.01.2016. the notice of the Court while passing order dated 21.01.2016. the notice of the Court while passing order The order was passed presuming the petitioner to be in service at The order was passed presuming the petitioner to be in service at The order was passed presuming the petitioner to be in service at that time but he was not in service because of date of his that time but he was not in service because of date of his that time but he was not in service because of date of his retirement. Let this case be put up before that very Bench (Hon'ble Let this case be put up before that very Bench (Hon'ble Let this case be put up before that very Bench (Hon'ble rder dated Mr. Justice Rajiv Narain Raina) who passed order dated Mr. Justice Rajiv Narain Raina) who passed o

21.01.2016. Adjourned to 28.02.2017.” Adjourned to 28.02.2017.” CWP-2322 2322-1994 (O&M) -4-

#6. learned Single As a sequel, the matter was listed before the learned Single As a sequel, the matter was listed before the . And it was who had passed the abovesaid order dated 21.01.2016. And it was who had passed the abovesaid order dated 21.01.2016 Judge, who had passed the abovesaid order dated 21.01.2016 observed that since the petitioner-employee observed that since the petitioner had already superannuated employee had already superannuated on 29.02.2004, there was no question to put him under deemed on 29.02.2004, there was no question to put him under deemed on 29.02.2004, there was no question to put him under deemed on 29.02.2004, there was no question to put him under deemed suspension or to revive the disciplinary proceedings. Consequently, the suspension or to revive the disciplinary proceedings. suspension or to revive the disciplinary proceedings. in the abovesaid contempt order dated 21.01.2016 was recalled in the abovesaid contempt order dated 21.01.2016 was recalled order dated 21.01.2016 was recalled proceedings, and the writ petition was ordered to be put up proceedings, was ordered to be put up as per roster:- Having read the order dated 13.02.2017 passed by Sister “Having read the order dated 13.02.2017 passed by Sister Having read the order dated 13.02.2017 passed by Sister Daya Chaudhary J. and the truth in it I would recall the order Daya Chaudhary J. and the truth in it I would recall the order Daya Chaudhary J. and the truth in it I would recall the order dated 21.01.2016, since para 10 was based on an incorrect dated 21.01.2016, since para 10 was based on an incorrect dated 21.01.2016, since para 10 was based on an incorrect

29.02.2004. foundation. The respondent retired from service on 29.02.2004. foundation. The respondent retired from service on There was no question to put him under deemed suspension or to There was no question to put him under deemed suspension or to There was no question to put him under deemed suspension or to revive the disciplinary proceedings. The order is accordingly revive the disciplinary proceedings. The order is accordingly revive the disciplinary proceedings. The order is accordingly recalled. Nothing said in the order will influence the final result recalled. Nothing said in the order will influence the final result recalled. Nothing said in the order will influence the final result of the case. say that the main case Contempt file is closed. Needless to say that the main case Contempt file is closed. Needless to will be restored to its original number and heard as per roster. will be restored to its original number and heard as per roster. Rule is discharged.”

#8. That is how, this Court is seized of the matter. That is how, this Court is seized of the matter. , while Learned counsel for the petitioner-Management, while Learned counsel for the petitioner referring to the background of the matter, referring to the background of vociferously submits that vide the matter, vociferously submits that vide , liberty was granted to the petitioner to order dated 21.01.2016 (supra), liberty was granted to the petitioner to , liberty was granted to the petitioner to order dated 21.01.2016 , as resort to fresh disciplinary proceedings within four months, which, as resort to fresh disciplinary proceedings resort to fresh disciplinary proceedings was even upheld by the Division Bench. In such indicated above, was even upheld by the Division Bench. In such was even upheld by the Division Bench. In such indicated above, circumstances, not only the said order attained finality, circumstances, order attained finality, but also the learned Single Judge, while dealing with learned Single Judge, while proceedings, dealing with the contempt proceedings, lacked jurisdiction to revive the writ petition, under any law. He fu lacked jurisdiction to revive the writ petition, under any law. He further submits that apparently, the order rendered by the submits that Division the order rendered by the learned Division CWP-2322 2322-1994 (O&M) -5- Bench was not brought to the notice of the learned Single Judge in the Bench was not brought to the notice of the learned Single Judge Bench was not brought to the notice of the learned Single Judge He next contends that in pursuance of the liberty contempt proceedings. He next contends that in pursuance of the liberty He next contends that in pursuance of the liberty contempt granted to the Management, the disciplinary granted to the proceedings were initiated, nary proceedings were initiated, - and in terms of the enquiry report dated 14.05.2016, the respondent- and in terms of the enquiry report dated and in terms of the enquiry report dated was held guilty. As a result, a fresh order of his dismissal from employee was held guilty. As a result, a fresh order of his dismissal from was held guilty. As a result, a fresh order of his dismissal from employee service was drawn on 12.06.2016. Therefore service was drawn on 12.06.2016. , the learned Single Judge Therefore, the learned Single Judge had no occasion to recall the earlier order dated 21.01.2016 had no occ the earlier order dated 21.01.2016.

#9. On merits, he asserts that , who that the respondent-employee, who was working as Drawing Master, was transferred by the Supreme was working as Drawing Master, was transferred by the Supreme was working as Drawing Master, was transferred by the Supreme was working as Drawing Master, was transferred by the Supreme Governing Body-Arya Vidya Parishad, Governing Body from Dhuri to Gandhi Punjab, from Dhuri to Gandhi Barnala, under the same Management. Since the post Arya High School, Barnala, under the same Management. Since the post Barnala, under the same Management. Since the post Arya High School was working, was 95% government aided post, prior on which he was working, was 95% government aided post, prior was working, was 95% government aided post, prior on which approval of the Director Public Instruction (Schools), Punjab, was approval of the Director Public Instruction (Schools), Punjab approval of the Director Public Instruction (Schools), Punjab by the mandatory. Thus, the approval had been sought, and was accorded by the mandatory. Thus, the approval had been sought, and was mandatory. Thus, the approval had been sought, and was DPI. Fetching grievance Fetching grievance, the respondent the respondent-employee challenged his by preferring a departmental appeal, but to no avail, as the same transfer by preferring a departmental appeal, but to no avail, as the same by preferring a departmental appeal, but to no avail, as the same by preferring a departmental appeal, but to no avail, as the same was dismissed, vide order dated 08.02.1985 was dismissed . Whereafter, he assailed the , vide order dated 08.02.1985. Whereafter, he assailed the said transfer order by filing CWP-1390- said transfer order by filing CWP ch too, met the same -1985, which too, met the same Accordingly, he fate, and was dismissed, vide order dated 18.03.1985. Accordingly, he fate, and was dismissed, vide order dated 18.03.1985. fate, and was dismissed, vide order dated 18.03.1985. was relieved by the Arya Higher Secondary School Dhuri, enabling him was relieved by the Arya Higher Secondary School Dhuri, enabling him was relieved by the Arya Higher Secondary School Dhuri, enabling him was relieved by the Arya Higher Secondary School Dhuri, enabling him d to join at the new place of posting. Surprisingly, despite repeated to join at the new place of posting. Surprisingly, despite repeate to join at the new place of posting. Surprisingly, despite repeate reminders, he opted not to join, which led his termination from ser reminders, he opted not to ice on join, which led his termination from service on

12.03.1987. He concludes by submitting that the instant one is a case of 12.03.1987. He concludes by submitting that the instant one is a case of 12.03.1987. He concludes by submitting that the instant one is a case of 12.03.1987. He concludes by submitting that the instant one is a case of voluntary absenteeism, therefore, services of the respondent voluntary absenteeism, employee , services of the respondent-employee were rightly dispensed with. were rightly dispensed with. CWP-2322 2322-1994 (O&M) -6-

#10. Per contra, learned Senior ounsel for the contesting , learned Senior counsel for the contesting respondent-employee submits that order dated 28.0 respondent .2017, whereby, the submits that order dated 28.02.2017, whereby, the earlier order dated 21.01.2016, order dated 21.01.2016, was recalled, has never been put to was recalled, has never been put to challenge by the petitioner-Management, even challenge by the petitioner . He , even after about a decade. He before passing the termination order, no adherence further submits that before passing the termination order, no adherence before passing the termination order, no adherence further submits that was given to the principles of natural justice, as the termination was was given to the principles of natural justice, as the termination was was given to the principles of natural justice, as the termination was was given to the principles of natural justice, as the termination was ordered without holding any disciplinary proceedings. ordered without holding any disciplinary proceedings. ordered without holding any disciplinary proceedings. ordered without holding any disciplinary proceedings. In such In such In such In such circumstances, the Tribunal rightly interfered with the termination ord circumstances, the Tribunal er, rightly interfered with the termination order, thereby thereby reinstating reinstating respondent-employee employee. To buttress his submissions, he places reliance upon a decision of the Hon’ble Supreme submissions, he places reliance upon a decision of the Hon’ble Supreme submissions, he places reliance upon a decision of the Hon’ble Supreme submissions, he places reliance upon a decision of the Hon’ble Supreme Aureliano Fernandes Vs. State of Goa and others, (2024) 1 Court in Aureliano Fernandes Vs. State of Goa and others, (2024) 1 Aureliano Fernandes Vs. State of Goa and others, (2024) 1 Court in Aureliano Fernandes Vs. State of Goa and others, (2024) 1 . SCC 632.

#11. This Court has heard rival submissions advanced on behalf This Court has heard rival submissions advanced on behalf This Court has heard rival submissions advanced on behalf of the parties, and has also perused the record. of the parties, and has also perused the record. of the parties, and has also perused the record.

#12. In the instant case, the learned Single Judge, vide order the learned Single Judge, vide order dated 21.01.2016, while partly allowing the writ petition, dated 21.01.2016, while granted liberty the writ petition, granted liberty to the pet itioner to initiate disciplinary proceedings. And, the period the petitioner to initiate disciplinary proceedings. And, the period itioner to initiate disciplinary proceedings. And, the period covered by the stay order was ordered to be treated as deemed suspension covered by the stay order was ordered to be treated as deemed suspension covered by the stay order was ordered to be treated as deemed suspension covered by the stay order was ordered to be treated as deemed suspension till the proceedings would be held and taken to its logical end. till the proceedings Not just be held and taken to its logical end. Not just that, even the order (supra), as demonstrated a that, even was recalled in the , as demonstrated above, was recalled in the contempt proceedings, vide order dated 28.02.2017. contempt proceedings, vide order dated 28.02.2017. contempt proceedings, vide order dated 28.02.2017.

#13. position that till date, the said order has not It is a conceded position that till date, the said order has not position that till date, the said order has not been assailed by the Management. This Court, been assailed by the its writ . This Court, in exercise of its writ gality of the order dated 28.02.2017. jurisdiction, cannot adjudicate the legality of the order dated 28.02.2017. gality of the order dated 28.02.2017. jurisdiction Needless to assert that in the event, the petitioner Needless to assert that i has any n the event, the petitioner-Management has any CWP-2322 2322-1994 (O&M) -7- grievance with the abovesaid order, it is equipped with the efficacious grievance with the abovesaid order, it is equipped with the efficacious grievance with the abovesaid order, it is equipped with the efficacious grievance with the abovesaid order, it is equipped with the efficacious remedy. Thus , the first submission is rejected. Thus, the first submission is rejected.

#14. Adverting to the second limb of the submissions second limb of the submissions that the disciplinary proceedings have already been concluded disciplinary proceedings and fresh already been concluded, and fresh termination order has also been passed, suffice it to say termination order has it has no legal been passed, suffice it to say, it has no legal value. To say so, To say so, the reason is obvious; the abovesaid has been obvious; the abovesaid exercise has been carried out, in pursuance ied out, in pursuance of the order which is no more in existence which is no more in existence, as recalled way back on 28.02.2017. Therefore, the same had already been recalled way back on 28.02.2017. Therefore, recalled way back on 28.02.2017. Therefore, the same initiate disciplinary proceedings, after the Management had no right to initiate disciplinary proceedings, after initiate disciplinary proceedings, after the Management ha passing the termination order. passing the termination order.

#15. This Court has also examined the issues raised on urt has also examined the other issues raised on merits. Admittedly, before passing the termination order, neither any merits. Admittedly, before passing the termination order, neither any merits. Admittedly, before passing the termination order, neither any merits. Admittedly, before passing the termination order, neither any , nor any opportunity of hearing was afforded to the respondent-employee, nor any opportunity of hearing was afforded to the respondent opportunity of hearing was afforded to the respondent the only disciplinary proceedings were initiated against him. Therefore, the only disciplinary proceedings were initiated against him. disciplinary proceedings were initiated against him. the Tribunal has rightly conclusion that could be reached is that the Tribunal has rightly conclusion that could be reached is that conclusion that could be reached is that interfered with the termination order which, interfered with the is illegal. The order which, ex facie, is illegal. The relevant observations made by the Tribunal are as under:- relevant observations made by the Tribunal are as under: relevant observations made by the Tribunal are as under: parties 11. I have heard the learned counsel for both the parties “11. I have heard the learned counsel for both the and have gone through the record carefully. I have carefully and have gone through the record carefully. I have carefully and have gone through the record carefully. I have carefully perused the judgements cited by the learned counsel for the perused the judgements cited by the learned counsel for the perused the judgements cited by the learned counsel for the management. The issue raised by the learned counsel respondent-management. The issue raised by the learned counsel management. The issue raised by the learned counsel management is that the appellant had for the respondent-management is that the appellant had management is that the appellant had ed the service and that it was not necessary to hold any abandoned the service and that it was not necessary to hold any ed the service and that it was not necessary to hold any inquiry. This plea cannot be accepted as the instant case is inquiry. This plea cannot be accepted as the instant case is inquiry. This plea cannot be accepted as the instant case is clearly distinguishable from the judgements cited by the clearly distinguishable from the judgements cited by the clearly distinguishable from the judgements cited by the management. In this case, it is indisputed that the respondent-management. In this case, it is indisputed that the management. In this case, it is indisputed that the ely after his transfer approached the Punjab appellant immediately after his transfer approached the Punjab ely after his transfer approached the Punjab and Haryana High Court for intervention. After his writ was and Haryana High Court for intervention. After his writ was and Haryana High Court for intervention. After his writ was dismissed, he approached the Commissioner against his transfer dismissed, he approached the Commissioner against his transfer dismissed, he approached the Commissioner against his transfer CWP-2322 2322-1994 (O&M) -8- management denies the receipt order. Of course, the respondent-management denies the receipt order. Of course, the respondent of six representations said to have been made by the appellant id to have been made by the appellant for joining the duty. The fact that the appellant duly contested the for joining the duty. The fact that the appellant duly contested the for joining the duty. The fact that the appellant duly contested the case before the Director Public Instruction (Schools) is not case before the Director Public Instruction (Schools) is not case before the Director Public Instruction (Schools) is not facts of the disputed. From the sequence of various events and facts of the disputed. From the sequence of various events and e appellant had not abandoned the service. case, it is clear that the appellant had not abandoned the service. e appellant had not abandoned the service. The appellant could not be dismissed from service without The appellant could not be dismissed from service without The appellant could not be dismissed from service without following the procedure laid down in Rules 17 and 18. His following the procedure laid down in Rules 17 and 18. His following the procedure laid down in Rules 17 and 18. His dismissal is in violation of these Rules and the action of the dismissal is in violation of these Rules and the action of the dismissal is in violation of these Rules and the action of the respondent-management cannot be su stained. There was no management cannot be sustained. There was no justification whatsoever for the Director Public Instruction justification whatsoever for the Director Public Instruction justification whatsoever for the Director Public Instruction (Schools) to grant approval to the dismissal of the appellant vide (Schools) to grant approval to the dismissal of the appellant vide (Schools) to grant approval to the dismissal of the appellant vide his order dated 13.11.1992 which he passed after five years of his order dated 13.11.1992 which he passed after five years of his order dated 13.11.1992 which he passed after five years of ch it was decided to the Resolution No. 2 dated 12.3.1987 by which it was decided to the Resolution No. 2 dated 12.3.1987 by whi dismiss the appellant.”

#16. In the wake of the position sketched out above, this Court In the wake of the position sketched out above, this Court In the wake of the position sketched out above, this Court dissuades to interfere with the well reason dissuades to ngs recorded by the interfere with the well reasoned findings recorded by the Tribunal. As a sequel, the instant petition is dismissed. Tribunal. As a sequel, the instant petition is Tribunal. As a sequel, the instant petition is (KULDEEP TIWARI) JUDGE 2026

06.07.202 Ak Sharma Whether speaking/reasoned Whether reportable Yes Yes/No