The main legal point established in the judgment is the interpretation and application of the proviso below Clause 5 of Statute 53 and the second proviso to Clause 8 of contract Schedule-A appended to Ordinance 24 in the context of the termination of an employee on the ground of willful and persistent neglect of duty and/or misconduct covered by Clause 8(a) & (b) of the contract Schedule-A.

JUDGMENT

M. W. Chandwani, J. - The present reference is on account of the order dated 23rd December 2021 passed by a Division Bench of this Court and the question for consideration read as under:

"Whether the requirement of the proviso below Clause 5 of Statute 53 is attracted in a case where an employee is terminated on the ground of willful and persistent neglect of duty and/or misconduct covered by Clause 8(a ) & (b ) of the contract Schedule -A appended to Ordinance 24 of College Code?'.

2. The controversy lies in a narrow compass with the Statute 53 and Ordinance 24 framed under the Maharashtra University Act, 1994 taking center stage. Whether proviso below Clause 5 of Statute 53 will prevail over second proviso to Clause 8 of contract Schedule-A appended to Ordinance 24 is the broad question that we are asked to decide.

3. The relevant facts that require mention here are that respondent No. 1 was appointed on 03.09.1984 and his services were confirmed on completion of probation period. The Management initiated disciplinary proceedings against respondent No.1, which culminated into termination of his services. Respondent No.1 challenged the order of termination before the University/College Tribunal. Presiding Officer of the Tribunal allowed the appeal by holding that the order of termination was vitiated. Apart from non compliance of principles of natural justice, one of the reasons for allowing the appeal was absence of prior approval of the Rashtrasant Tukdoji Maharaj Nagpur University, Nagpur under Statute 53. In fact, the petitioners had sought permission to terminate the services of the respondent No.1, but it was rejected. The petitioners assailed the order of Tribunal in Writ Petition No. 1836 of 2009. The Writ Petition came to be allowed by directing the petitioners to continue enquiry proceedings from the stage at which it was found to have been vitiated. After completion of enquiry, the petitioners terminated the services of respondent No. 1. In appeal, the Tribunal vide its judgment dated 20.12.2019 set aside the order of termination for want of prior permission of the University, as contemplated by Statute 53. The aforesaid judgment of the Tribunal is the subject matter of challenge in the present petition. One of the grounds raised in the petition is that the proviso to Clause 5 of Statute 53 is not attracted to the case of respondent No. 1, since he has been confirmed after 02.01.1978 and his services are terminated on the ground of misconduct and after full fledged inquiry. During the hearing of the said Writ Petition, attention of the learned Single Judge ( learned referral Judge) was invited to a judgment of another learned Single Judge of this Court in a case of Nagar Yuvak Shikshan Sanstha Vs. Sanjay Vidyasagar Soni, wherein relying on a decision of this court in CEO, Yashwant Rural Education Vs. Asmita Basole and Anr. reported in 1987 Mh.L.J. 676, a view was taken that prior approval, as required by Clause 5 of Statute 53 is mandatory, even in the cases of termination of employees on the ground of willful and persistent neglect of duty or misconduct.

4. The learned referral Judge did not agree with the view expressed by the learned Single Judge in Sanjay Vidyasagar Soni (Supra) on the premise that by such interpretation, Clause 8(a) and (b) of the contract Schedule-A shall become redundant and opined that in case of termination of an employee on account of misconduct such prior approval is not required. According to the learned referral Judge, in Asmita Basole and Anr. (Supra), the respondents in the said case were appointed on probation on 29.08.1983 and 23.04.1984, respectively. Both of them were terminated on 23.03.1985 before completion of their probation, therefore, the ratio laid down in Asmita Basole and Anr. (Supra) was wrongly applied in Sanjay Vidyasagar Soni (Supra), wherein the petitioners were confirmed lecturers. The learned Single Judge requested the Chief Justice for referring the matter to