Violation of principles of natural justice and non-compliance with mandatory rules under the Bombay Industrial Employment (S.O.) Rules, 1959 rendered the termination order bad in-law.

JUDGMENT :

Sadhana S. Jadhav, J. –

1. The present petition was admitted on 8th December, 2006 and is taken up for final hearing.

2. Heard the learned counsel for the parties.

3. The petitioner herein was working as ‘Senior Stenographer’ with the Administrative department of Tata Memorial Centre.

4. The Petitioner is challenging the order dated 19th July, 2004, by which the services of the petitioner were terminated. The order reads as follows :—

“In accordance with Rule 21(1) of Bombay Industrial Employment (S.O.) Rules, 1959 as amended from time to time, the services of Shri K. Sivasankaran, Personal Assistant, Tata Memorial Hospital, are hereby terminated with immediate effect.

2.0 It is further ordered that he shall be paid one month’s wages (including all allowances, as admissible to him) in lieu of notice, which shall be paid to him before the expiry of the second working day of the date of this order”.

5. It is submitted across the bar by the respondent that the petitioner was working as a Senior Stenographer with Dr. Kulkarni. However, the order of termination is issued to the petitioner in his capacity as a Personal Assistant and therefore it deserves to be held that at the time of termination the petitioner was working as a ‘Personal Assistant’

6. The petitioner was tried for offence punishable under section 120/B, 420, 465, 467, 468 read with 34 of Indian Penal Code by the Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai. The criminal case was initiated on the basis of a complaint lodged by the General Branch, Crime Branch, CID, Mumbai. The petitioner was tried along with one Hiren Rameshbhai Shah. The petitioner was acquitted of all the charges levelled against him vide judgment and order dated 26th July, 2012.

7. The petitioner had filed an application before the Director, Tata Memorial Centre on 17th August 2012 with a request to reinstate the petitioner with all benefits on account of his acquittal by the Court. It is pertinent to note that the said request was neither rejected nor allowed, no orders were passed on the request application. The department had sent a communication and had informed the petitioner as follows :—

“2.0 As you are aware, the W. P. No. 2024 of 2005 filed by you before the Hon’ble High Court, Bombay, was admitted on 8th December, 2006, pending hearing and final disposal. In the said W. P., you have challenged the termination order issued to you on July 29, 2004. Thus, the matter is sub-judice.

3.0 Please let us know, if any appeal would be/is filed by the State against the order of the Ld. Magistrate Court. Notwithstanding this, you may like to consider moving the Hon’ble Court, with the aforesaid order of the Ld. Magistrate Court, as may be legally advised by your Lawyers, for such orders as the Hon’ble High Court may pass on your W.P. No. 2024”.

8. In the course of hearing, the learned counsel for the respondent, upon instructions has submitted that by an order of acquittal, it cannot be said that the petitioner deserves to be reinstated in service as it would be at the discretion of the appointing authority, moreover, according to learned Counsel, the fact that he was charge-sheeted and tried for serious offences cannot be ignored by the Appointing Authority.

9. Per contra, the learned counsel for the petitioner has submitted that in fact, the termination order passed by the employer was bad in-law and therefore, he deserves to be reinstated after being honorarily acquitted. The termination order is impugned before this Court in the present petition. However, at present the petitioner has reached age of superannuation. It is the contention of the learned counsel for the respondent that by passage of time the petition has become infructuous and that the petitioner had not availed all the provisions of the respondent’s rules of service. The said contention is controverted by the fact that the petitioner had challenged the order dated 19th July, 2004 by filing a de