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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
RAVINDRA V. GHUGE, J.
Smt. Mohinibai Badriprasad Agrawal Shikshan Prasarak Mandal, Nandurbar & Ors. – Petitioners
Vs.
Shri Gokul - Respondent
WP No. 6043 of 2014
Decided on : 18-8-2016
MEPS Rules - Employee Termination - 2007(3) Mh.L.J. 801 = 2007(11) SCC 352
Fact of the Case:
The case involved a dispute between an employee and the management regarding unauthorized absenteeism and alleged oral termination.
Finding of the Court:
The court found that the management's contention of unauthorized absenteeism was pitted against the employee's claim of being restrained from reporting for duties, creating a word-against-word situation. The court also noted the failure of the management to initiate disciplinary proceedings despite alleging serious misconduct by the employee.
Issues: The key issues included unauthorized absenteeism, alleged oral termination, and the failure of the management to initiate disciplinary proceedings.
Ratio Decidendi: The court relied on the MEPS Rules, 1981, and the Vidya Vikas Mandal judgment to conclude that the employee should be placed under suspension and the management should initiate proper disciplinary proceedings.
Final Decision: The court partly allowed the writ petition, directing the management to treat the employee as under suspension from the alleged date of termination, pay subsistence allowance, and initiate disciplinary proceedings within a specified time frame.
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. On 16.08.2016, after extensively hearing the learned Advocates for the respective sides and considering the request of the learned Advocates, I have passed the following order:“
1. I have heard the learned Advocates for the respective sides at length on 27/07/2016, 11/08/2016 and again today.
2. After the conclusion of their submissions and before I could begin the dictation of the judgment, I intimated to the litigating sides that the right of the Management to conduct an enquiry would be sustained subject to placing the respondent/ employee under suspension from the date of alleged oral termination 21/06/2010 and on payment of subsistence allowance as per rules, keeping in view the observations of the Hon'ble Supreme Court in paragraph Nos.8 and 9 of Vidya Vikas Mandal & Anr vs The Education Officer & Another, 2007(3) Mh.L.J. 801 = 2007(11) SCC 352.
3. Mr.Brahme submitted on instructions that even now the respondent is willing to waive all back wages on the condition that he would be given continuity of service and there shall be no disciplinary proceedings by digging up the old charges.
4. Mr.Bagul submits that he would take instructions from the petitioners President and Secretary and make a statement on 18/08/2016.
5. Considering the above, stand over to 18/08/2016. It is made clear that there shall be no further submissions addressed to the Court.”
3. It is informed by Shri Bagul that the Petitioners are not in a position to make any statement and as such, this petition be considered on it's own merits.
4. The submissions of Shri Bagul can be summarized as follows:
(a) The Respondent No.1/Employee was appointed as an Assistant Teacher with Petitioner No.2/ Institution on 01.06.1999.
(b) The said Institution was without any grants from the State Government.
(c) On 31.08.2002, the Education Officer granted approval to the services of the Respondent/ Employee.
(d) The Employee was absent from 26.03.2010.
(e) The first notice regarding unauthorized absenteeism was issued on 17.04.2010.
(f) The Employee appeared before the Management on 21.04.2010 and stated that he was suffering from fever and could not report for duties.
(g) The second notice was issued on 23.04.2010 which was replied to by the Employee on 27.04.2010.
(h) The Employee submitted a detailed reply on 29.04.2010.
(i) The third, fourth and fifth notices dated 01.05.2010, 06.05.2010 and 15.05.2010 issued to the Employee were not replied to.
(j) The Employee preferred Appeal No.15/2012 before the School Tribunal alleging oral termination on 21.06.2010.
(k) The Petitioners filed their Written Statement in the appeal and specifically contended that there was no oral termination at the hands of the Management, the Employee is not punished with dismissal from service, he is remaining unauthorizedly absent, he has committed several misconducts of grave and serious nature and therefore, is not reporting for duties for the fear of suffering disciplinary proceedings and the appeal is misconceived.
(l) By judgment and order dated 16.08.2013, the School Tribunal has erroneously come to the conclusion that the Petitioners have orally terminated the services of the Employee on 21.06.2010.
(m) The School Tribunal has erroneously granted reinstatement with continuity and full backwages to the Employee.
(n) When there was no termination at all in the eyes of law, there is no question of allowing the appeal and granting any relief pursuant to the setting aside of the purported termination.
5. Shri Brahme, learned Advocate appearing on behalf of the Respondent/ Employee, submits as under:
(a) The Employee, after having been appointed as an Assistant Teacher on 01.06.1999, was promoted as Headmaster on 01.06.2004.
(b) He has not committed any misconduct and merely because he was absent for some period due to illness, the Petitioners felt antagonized and therefore, have restrained him from reporting for dut
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