Bombay High Court
Dhangai Vidhayak Karya Mandal,Chitu ... vs Manojkumar Shriram Patil on 11 January, 2018
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5635 OF 1998
Shri Manojkumar Shriram Patil,
Age- 35 years, Occu. Service,
R/o. At and Post Mhasadi,
Taluka Sakri, Dist. Dhule. ...Petitioner.
Versus
1. Dhangai Vidhayak Karya Mandal's
Shri Chilu Dhavlu Deore
Madhyamik Vidyalaya, Mhasadi,
Taluka Sakri, District - Dhule.
2. Shri Chilu Dhavlu Deore
Madhyamik Vidyalaya, Mhasadi,
Taluka Sakri, District - Dhule.
3. Shri Satish Atmaram Deore,
Age- 29 years, Occu. Head Master,
Shri Chilu Dhavlu Deore
Madhyamik Vidyalaya, Mhasadi,
Taluka Sakri, District - Dhule. ...Respondents.
WITH
WRIT PETITION NO. 1892 OF 1998
1. Dhangai Vidhayak Karya Mandal's
Shri Chitu Dhavlu Deore
Madhyamik Vidyalaya, Mhasadi,
Taluka Sakri, District - Dhule.
2. Shri Chitu Dhavlu Deore
Madhyamik Vidyalaya, Mhasadi,
Taluka Sakri, District - Dhule.
3. Shri Satish Atmaram Deore,
Age- 29 years, Occu. Head Master,
Shri Chitu Dhavlu Deore
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Madhyamik Vidyalaya, Mhasadi,
Taluka Sakri, District - Dhule. ...Petitioners.
Versus
Shri Manojkumar Shriram Patil,
Age- 35 years, Occu. Service,
R/o. At and Post Mhasadi,
Taluka Sakri, Dist. Dhule. ...Respondent.
Advocate for Petitioner : Shri Aditya Sikchi
h/f. Shri S.P. Shah.
Advocate for Respondent : Shri S.K. Shinde.
CORAM : RAVINDRA V. GHUGE, J.
Dated : 11th January, 2018
ORAL JUDGMENT :
1. The petitioner in the first petition is the original appellant before the School Tribunal in Dhule Appeal No. 56/1994. The petitioner in the second petition, who is respondent No. 1 in the first petition, is the Management/Employer in relation to the appellant.
2. The appellant has challenged the judgment of the School Tribunal dated 02/08/1997 to the extent of he being denied continuity in service and back wages. The Management has filed the second petition challenging the same judgment to the extent of the direction issued by the Tribunal to the Management to reinstate the appellant instantly.
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3. No interim relief was granted to the appellant. Interim relief was granted to the Management by staying the impugned judgment, if the impugned order was not already implemented. Subsequently, on 02/08/2001, this Court has declined interim relief to the Management, as the appellant was already reinstated in service and was working.
4. I have considered the strenuous submissions of the learned advocate for the respective sides.
5. The controversy between the appellant and the Management has been reduced to the issue of whether continuity in service can be granted to the appellant as the appellant, who is present in the Court, has instructed the learned advocate to make a statement that he is waiving the back wages if the Management withdraws its petition. Learned counsel for the Management submits on instructions that the appellant has been working for the last about 21 years, after he was reinstated in 1997 and he is about 56 years of age today, with less than two years for retirement.
6. Notwithstanding the above statement made, I have perused the impugned judgment and the record available which does not indicate in any manner that the Management has followed the MEPS ::: Uploaded on - 16/01/2018 ::: Downloaded on - 17/01/2018 01:26:36 ::: 4 Rules 1981 in arriving at a presumption that the appellant has abandoned employment. It was proved before the Tribunal and the record establishes that the appellant was working from 01/08/1990 till 19/06/1994 as an Assistant Teacher, prior to his termination, for four years.
7. It is settled law that when refusal to allot work, which amounts to termination, is held to be illegal, reinstatement with continuity of service is normally granted. It is only in a case of a short spell of employment like one year or two years which is followed by a long duration of unemployment like 15/20 or 25 years, then the Hon'ble Apex Court has ruled in the following cases that compensation in lieu of reinstatement and continuity of service would be practical and pragmatic :-
1. Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota Versus Mohan Lal [2013 LLR 1009],
2. Assistant Engineer, Rajasthan Development Corporation and another Versus Gitam Singh [(2013) 5 SCC 136],
3. BSNL Versus Man Singh [(2012) 1 SCC 558],
4. Jagbir Singh Versus Haryana State Agriculture Marketing [(2009) 15 SCC 327] .
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8. In the instant case, the appellant, after putting in about four years of employment, succeeded before the School Tribunal on 2/08/1997. He was reinstated within a short period thereafter and has been working for more than 21 years. Paragraph No. 10 of the impugned judgment which deals with the aspects as to whether the appellant had abandoned employment or the Management had refused work, suffers from several grammatical mistakes. I am of the view that after reading the entire paragraph No. 10, which runs into above four pages, the meaning that can be drawn is that the Management could not support its stand of abandonment of employment against the appellant. So also, since the appellant was deemed permanent under Section 5 (2) MEPS Act 1977, unless such an employee is absent continuously for the period of three years, there can be no presumption of abandonment. So also, while concluding paragraph No. 10, the Tribunal has concluded that various attempts made by the appellant to report for duties shows that he was prevented from reporting for duties and therefore, it can be treated as being otherwise termination. Hence, the moment the Tribunal concludes that the appellant was terminated by Management, the defence of abandonment fails as abandonment is an exception to termination.
9. The petitioner/appellant is about 56 years of age. In about ::: Uploaded on - 16/01/2018 ::: Downloaded on - 17/01/2018 01:26:36 ::: 6 two years, he would retire from employment. Though, he has claimed back wages for the period from 19/06/1994 till 13/10/1997, placing reliance upon the judgment of the Hon'ble Apex Court in the matter of Deepali Gundu Surwase Versus Kranti Junior Adhyapak Mahavidhyalaya (D.Ed) and others [(2013) 10 SCC 324)], it is stated that he is giving up his claim for back wages.
10. In this backdrop, at the stroke of retirement his service from 1990 till 1994 with the break thereafter on account of the illegal termination, would deprive him of all retiral benefits for a period of almost 7 years. Taking into account all the above factors, I deem it appropriate to grant continuity to the appellant from the date of his termination 19/06/1994 till the date of his actual retirement 13/10/1997.
11. As such, Writ Petition No. 5635/1999 (Old Bombay No. 5614/1997) filed by the appellant/employee is partly allowed. The impugned judgment of the School Tribunal dated 02/08/1997, is modified to the extent of Clause (2) by adding the word "continuity in service from the date of his termination till his reinstatement". Rule is made partly absolute accordingly.
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12. Consequentially, Writ Petition No. 1892/1998, filed by the Management is dismissed. Rule is discharged.
( RAVINDRA V. GHUGE, J. ) S.P.C. ::: Uploaded on - 16/01/2018 ::: Downloaded on - 17/01/2018 01:26:36 :::