Bombay High Court
Shri Dinesh Sawai And Seven Others vs Miss.Jyoti Krushna Panbude on 26 February, 2015
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.1895 OF 2005
PETITIONERS: 1 Shri Dinesh B. Sawai, President, Subhedar
Ramji Ambedkar Education Society, 2,
Hinganghat Road, Wardha, Distt. Wardha.
2. Shri Milind A Sawai, Principal, Dr.
Ambedkar College of Social Work, 2,
Hinganghat Road, Wardha, District -
Wardha.
3. Sau. Sitabai Chintamanrao Nihete, (Vice-
President R/o Gaurakanan Ward,
Wardha, District - Wardha.
ig 4. Shri Lokeshwar Daduramji Sawai,
Secretary, R/o Snenahal Nagar, Wardha,
District - Wardha.
5. Shri Vinayak Mahadeorao Raut, Joint
Secretary, R/o Lakadganj, Nagpur,
District - Nagpur.
6. Shri Daduram Baliram Sawai, Treasurer,
at Post - Pawanar, District - Wardha.
7. Shri Avinash Dinesh Sawai, Member, R/o
Civil Lines, Wardha, District - Wardha.
8. Shri Prashajeet Daduram Sawai, Member,
at Post Wani, District - Wardha.
-VERSUS-
RESPONDENT: Miss Jyoti Krushna Panbude, (Now Smt.
Jyoti Vivekanand Zodape), aged about 33
years, Occ. : Lecturer, R/o 767, Vaishali
Nagar, Behind Zaveri Nursing Home,
Mehadi Bagh Road, Nagpur-17.
Smt. A. A. Joshi, Advocate for the petitioners.
Shri S. P. Pawar Advocate for respondent.
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CORAM: A.S. CHANDURKAR, J.
DATED: 26
FEBRUARY, 2015.
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ORAL JUDGMENT :
1. This writ petition at the instance of members of the Managing Committee of Subhedar Ramji Ambedkar Education Society, Wardha challenges the order dated 17-1-2005 passed under provisions of Section 63 of the Maharashtra Universities Act, 1994 (for short the said Act) whereby each of the petitioners has been directed to pay fine of Rs.1000/- each as penalty for failure to comply with the directions
2. issued by the University and College Tribunal, Nagpur.
The respondent was in service on the post of Lecturer in the College run by aforesaid Society. It was her case that on 17-4-2003 her services came to be orally terminated. She, therefore, filed appeal under Section 59 of the said Act. During pendency of the appeal, the parties mutually arrived at an understanding whereby the respondent was to be reinstated in service with continuity. A pursis duly signed by the respondent and her Counsel as well as the Management and its Counsel was placed on record. Accordingly on 28-11-2003, the appeal filed by the respondent was allowed in terms of the pursis and the respondent was directed to be reinstated with continuity in service. After being so reinstated, it was the case of the respondent that she was not allowed to sign the attendance registers in the month of December 2003 and also in January, 2004. On some occasions, she was marked late. She, therefore, filed an application under Section 63 of the said Act praying that the Management be punished for having failed to comply with directions ::: Downloaded on - 17/03/2015 21:12:10 ::: wp1895.05 3 issued by the University and College Tribunal. Said application was contested by the petitioners and by the impugned order, the Tribunal directed each of the petitioners to pay fine of Rs.1000/- as penalty for failure to comply with the directions of the Tribunal. This order is under challenge in the present writ petition.
3. Smt. A. A. Joshi, the learned Counsel appearing for the petitioners submitted that the learned Presiding Officer erred in imposing penalty upon the petitioners. The order of reinstatement had been duly complied with and the respondent was taken back in service from 29-11-2003. It was submitted that grievances as made by the respondent regarding not permitting her to sit in the Lecturer's room, not allotting her work and not being permitted to sign the muster roll were alleged to have taken place after the reinstatement of the respondent and hence, it could not be said that the Management had not complied with the directions issued by the Tribunal. It was also submitted that the finding of breach as recorded is on the basis of subsequent police complaints. She, therefore, submitted that the impugned order deserves to be set aside.
4. Shri S. P. Pawar, the learned Counsel appearing for the respondent supported the impugned order. He submitted that by not permitting the respondent to discharge her duties appropriately and by not permitting her to sign the muster roll, there was non-compliance with the order of reinstatement. As the respondent was being harassed, she was required to lodge police complaints and hence, it could not be ::: Downloaded on - 17/03/2015 21:12:10 ::: wp1895.05 4 said that the directions as issued had been fully complied. He relied upon the dictionary meaning of the word 'reinstate' to urge that the respondent was required to be placed in the same place as she was holding prior to order of termination. He then submitted that by not complying with the undertaking given to the College Tribunal, there was breach on the part of the Management and hence, the learned Presiding Officer was justified in passing the impugned order. He relied upon decision of the Supreme Court in Rama Narang (5) vs. Ramesh Narang and another (2009) 16 Supreme Court Cases 126.
5. I have carefully considered aforesaid submissions and I have gone through the documents filed on record. Under Section 61(2)
(a), the Tribunal is empowered to direct the Management to reinstate the employee on the same post or on a lower post as it may specify. The appeal filed by the respondent came to be allowed vide order dated 28- 11-2003 and operative part thereof reads thus:
"Appeal is allowed in terms of Pursis. The appellant is reinstated with continuity in service. Parties to bear their own respective costs as incurred by them."
It is, therefore, clear that as per the order passed in the appeal, the respondent was directed to be reinstated with continuity in service in exercise of powers under Section 61(2)(a) of the said Act. The directions issued under Sections 61(2) of the said Act are required to be complied within the period specified in the direction. The provisions of Section 63(1) that were invoked by the respondent for taking action against the Management to the extent the same are relevant read as ::: Downloaded on - 17/03/2015 21:12:10 ::: wp1895.05 5 under:
"63. Penalty to Management for failure to comply with Tribunal's directions.
(1) If the University or, as the case may be, Management fails, without any reasonable cause, to comply with any direction issued by the Tribunal under Section 61 within the period specified in the direction, or within such further period as may be allowed by the Tribunal, the University or, as the case may be, Management shall on conviction, be punished."
6. Pursuant to aforesaid order, it is the case of the respondent that she was reinstated on the post of Lecturer on 29-11-2003 and thereafter, for some period she was regularly attending her duties from 7.35 a.m. to 3 p.m. The said stand was taken by her in the application filed under Section 63 of the said Act and the same is reiterated in the affidavit dated 14-7-2005 filed in this Court and in para 1 thereof, it is stated thus:
"1. In persuance to the order dated 28.11.2003 passed by the Presiding Officer, College Tribunal Nagpur, I joined the Respondent College w.e.f. 29.11.2003."
7. From the aforesaid stand of the respondent, it is clear that after the order dated 28-11-2003, she was reinstated in service on 29- 11-2003. Her grievance appears to be that after some days, she was not permitted to sit in the lecturer room, she was not allotted any work, she was not allowed to sign the attendance register for some days in December, 2003 and January, 2004. She was marked late on certain occasions and hence, she had also filed police complaints on 26-12-2003 and 3-1-2004.
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8. In view of aforesaid, the respondent invoked provisions of Section 63 of the said Act praying that action be taken against the Management as it had failed to comply with the directions issued by the College Tribunal. The aforesaid grounds were denied by the Management. The learned Presiding Officer after referring to the police complaints made by the respondent found that the Management was unnecessarily harassing the respondent in the absence of any complaint about her work and teaching. On that basis, it held that the order dated
9. 28-11-2003 was not complied by the Management.
It is, therefore, necessary to consider whether the alleged acts committed by the petitioners after reinstating the respondent can amount to failure on the part of the Management to comply with the direction of reinstatement. The expression "reinstate" as defined in Oxford Dictionary reads as under:
"To reinstate is, as defined in the Oxford English Dictionary, ' to reinstall or re-establish (a person or thing) in a place, station, condition, etc' to restore to or in a proper state; to replace."
It, therefore, means to restore back or put back in the earlier position. It is undisputed that on 29-11-2003 the respondent was reinstated in service pursuant to the order dated 28-11-2003. She was, therefore, put back in law and in fact in the same position which she occupied prior to order of termination. The alleged acts of harassment are alleged to have been committed in the months of December 2003 and January 2004 which is subsequent to the act of reinstatement.
::: Downloaded on - 17/03/2015 21:12:10 :::wp1895.05 7 At this stage, it would be necessary to refer to the provisions of Section 57 of the said Act in relation to hearing and settlement of grievances of any teacher or other employee by the Grievances Committee. It is to be noted that in respect of those matters which do not fall within jurisdiction of the Tribunal under Section 59 of the said Act, the Grievances Committee is empowered to adjudicate the same. Considering the fact that on 29-11-2003, the respondent was reinstated in service, the directions as issued under Section 61(2)(a) of the said Act stood complied immediately. If at all there was any grievance with regard to the subsequent conduct of the Management as alleged, the recourse to provisions of Section 57 of the said Act was available. Having complied with the direction of reinstatement which is not in dispute and said act having taken place on 29-11-2003, there was no jurisdiction with the Tribunal to consider subsequent acts/omissions on the part of the Management to hold that the direction of reinstatement was not fully complied. The subsequent alleged acts gave fresh cause of action to the respondent and it was open for her to invoke the remedy under Section 57 of the said Act. It is brought to the notice of this Court that the respondent had taken recourse to such remedy under Section 57 of the said Act on account of certain acts of the Management in the year 2011 and onwards. It is, therefore, clear that the Tribunal erred in taking into account certain acts after the act of reinstatement to hold that the directions under Section 61(2)(a) of the Act were not complied. In fact, after reinstating the respondent on 29- ::: Downloaded on - 17/03/2015 21:12:10 ::: wp1895.05 8 11-2003 the directions issued under Section 61(2)(a) of the said Act stood duly complied. In these facts, the decision in Rama Narang (supra) as regards wilful breach of undertaking amounting to contempt of court has no application. The Tribunal therefore exceeded its jurisdiction while entertaining the proceedings.
10. In view of aforesaid discussion, the following order is passed:
(1) The order dated 17-1-2005 passed by the learned Presiding igOfficer, University and College Tribunal, Nagpur is set aside being without jurisdiction.
(2) It is clarified that it is open for the respondent to avail the remedy under Section 57 of the said Act in respect of the acts/omissions that were alleged to have been committed by the Management and which led to filing of proceedings under Section 63 of the said Act. If such grievance is made, the Grievances Committee shall independently consider the same in accordance with law. This Court has not gone into the correctness of the findings recorded by the University and College Tribunal and said aspects are kept open.
(3) The petitioners would be entitled to receive back the amount of penalty deposited by them in terms of order dated 17/1/2005.::: Downloaded on - 17/03/2015 21:12:10 :::
wp1895.05 9 (4) Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE //MULEY// ::: Downloaded on - 17/03/2015 21:12:10 :::