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2015 Supreme(Bom) 1221
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
RAVINDRA V. GHUGE, J.
The Secretary, Niti Niketan Shikshan Sanstha, Jamb (Bk.) Tq. Mukhed and Ors. – Petitioner
Versus
Vaishali Ramdas Thote – Respondents
WRIT PETITION NO. 9279 OF 2013
Decided On : 10.08.2015
Advocate Appeared:
Advocate for Petitioners: Shri Gunale V.D.
Advocate for Respondent: Shri Dhage Vivek, Smt. Kshirsagar Y.M.
The termination of an employee, whether permanent or temporary, cannot be with retrospective effect, and a termination order must not be stigmatic in nature. A domestic enquiry is required before a termination order can be sustained.
Headnote:
Termination - School Employee - 2009 (6) Mh.L. J. 476, 2009 (2) Mah. L.J. 772, (2010) 5 SCC 475, 2012 (4) Mh.L.J. 900, AIR 2013 SC 1265, 2013 (1) CCC 152 (SC), 2007 (6) Bom. C.R. 23, 2013 (3) ABR 106 - The court discussed the termination of a school employee and the legality of the appointment, habitual absenteeism, abandonment of service, and unsatisfactory performance. The court referred to various judgments to support the contention that the appointment of the employee was illegal and therefore, she had no right to reinstatement, continuity of service, and backwages. The court also considered the stigmatic nature of the termination and the requirement for a domestic enquiry before a termination order can be sustained. The court emphasized that the termination of an employee, whether permanent or temporary, cannot be with retrospective effect. The court concluded that the termination order was stigmatic in nature and set it aside, emphasizing the need for a domestic enquiry and the absence of specific charges in the termination order.
Fact of the Case:
The petitioner criticized the judgment of the School Tribunal, alleging that the first respondent had abandoned her service, was habituated to unauthorized absenteeism, and her performance was unsatisfactory. The petitioner argued that the first respondent had become surplus and was not entitled to backwages. The second respondent confirmed that the first respondent had been entered in the list of surplus employees. The petitioner contended that the termination order was stigmatic and could not be sustained without a domestic enquiry.
Finding of the Court:
The court found that the termination order was stigmatic in nature and set it aside, emphasizing the need for a domestic enquiry and the absence of specific charges in the termination order. The court also dismissed the petitioner's argument regarding the first respondent's surplus status and the legality of her appointment.
Issues: The issues included the legality of the first respondent's termination, the stigmatic nature of the termination order, the requirement for a domestic enquiry, and the first respondent's surplus status.
Ratio Decidendi: The court emphasized that the termination of an employee, whether permanent or temporary, cannot be with retrospective effect. The court also highlighted the stigmatic nature of the termination and the requirement for a domestic enquiry before a termination order can be sustained.
Final Decision: The petition was dismissed, and the rule was discharged with no order as to costs.
1. Heard.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition is taken up for final disposal.
4. Shri Gunale, learned Advocate for the petitioner criticizes the judgment of the School Tribunal dated 10.10.2013. He has raised the following three grounds, which render the impugned judgment perverse:-
(a) the first respondent / employee had abandoned her service,
(b) she was habituated to unauthorized absenteeism, and
(c) her performance was not satisfactory.
5. He submits that the School Tribunal has allowed Appeal No.26 of 2012 filed by the first respondent for challenging her order of termination dated 1.8.2011 on the ground that she was appointed for three years as a probationer w.e.f. 1.8.2008. He further submits that because she was unauthorizedly absent, she was required to be terminated as she had abandoned her service. When her performance was not satisfactory, the employer cannot be compelled to keep such an employee in service.
6. Shri Gunale further submits that, even if the order of reinstatement is to be taken as it is, by the communication dated 24.4.2014, addressed to the Deputy Director of Education, Latur Division, by the Education Officer (Secondary), Zilla Parishad, Nanded, it is clear that the first respondent has become surplus, her name has been entered in the list of surplus employees by the Education Department and it is just a matter of time, that she would be absorbed in any other school.
7. He further submits that as respondent No.1 had not worked from her date of termination till the date she became surplus, backwages are not required to be paid to her.
8. He relies upon the following judgments to support his contention that the very appointment of the first respondent was illegal and therefore, she had no right to reinstatement, much less, continuity of service and backwages.:-
(1) Rayat Shikshan Sanstha Vs. Yeshwant Dattatraya Shinde - 2009 (6) Mh.L. J. 476,
(2) Ku. Jaimala Bhaurao Ramteke Vs. Presiding Officer, School Tribunal - 2009 (2) Mah. L.J. 772,
(3) Mohd. Asif and others Vs. State of Bihar and others - (2010) 5 SCC 475,
(4) Shivdutta Education Trust Vs. Harishchandra Rajabali Yadav - 2012 (4) Mh.L.J. 900,
(5) University of Rajasthan Vs. Prem Lata Agarwal - AIR 2013 SC 1265,
(6) Uniworth Textiles Ltd. Vs. Commissioner of Central Excise -2013 (1) CCC 152 (SC),
(7) Ram Awadh Mahel Pal Vs. Shivdutta Educational Trust - 2007 (6) Bom. C.R. 23 and
(8) Ramkrishna Chauhan Vs. Seth D.M. High School - 2013 (3) ABR 106.
9. The learned AGP appearing on behalf of the second respondent confirms that the said respondent has intimated the Deputy Director of Education, Latur Division by his letter dated 24.12.2014 that the first respondent has been entered in the list of surplus employees.
10. Shri Dhage, learned Advocate has strenuously opposed the petition on the ground that the impugned order is stigmatic and cannot be sustained since no domestic enquiry was conducted by the petitioner. He submits that unless the first respondent is reinstated, the name of the said employee could not be entered in the list of surplus employees. He, therefore, submits that, by virtue of the communication dated 24.12.2014 by the second respondent and the application of the petitioner to the Education Department, which has invited the response of the second respondent to the said communication, it has to be presumed that the first respondent is deemed to be reinstated.
11. I have considered the submissions of the learned Advocates, have gone through the petition paper book with their assistance and have also considered the reports relied upon by the petitioners. The termination order dated 1.8.2011 is on record. It is undisputed that there was no domestic enquiry conducted by the petitioner on the ground that the first respondent is a temporary employee and no departmental enquiry is required to be conducted, even if there are any charges against the first respondent.
12. The termination order dated 1.8.2011 is a c
