Writ Petition No.5583 of 2007

25th October, 2007

Petitioner Counsel: Shri. V. P. LATANGE
Respondent Counsel: Shri. R. K. ASHTEKAR

Cases Cited:
Bahujan Vikas Education Society Vs. Mrs. Vidya Devi W/o. Abhimanyu Raut, 2006(4) ALL MR 281=2006(5) Mh.L.J. 124 [Para 11]
Kendriya Vidyalaya Sangathan Vs. S. C. Sharma, (2005)2 SCC 363 [Para 11]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith and heard finally by consent of the parties.

2. By this petition, petitioners challenge order dated 18.7.2007, rendered by learned Presiding Officer of University and College Tribunal in Appeal No.BAMU-03/07, whereby oral termination of Respondent No.1 was set aside and they were directed to reinstate him as peon and further to pay arrears of salary during relevant period.

3. The Respondent-Dnyanoba Dhawate, was appointed as peon in College run by the petitioners. He asserted that though he was attending the duty yet, since October, 2005, he was not being allowed to sign the Muster Roll. He further asserted that the petitioners did not pay salary though requested for. He contended that he was assured payment of salary after receiving Government grants. He believed the assurance and continued to work with the petitioners. He was wrongly informed that he was absent from duty. He was called upon to join the duty and when he, in fact, went to join duty with a request to allow him to do so, then he was not allowed to sign the Muster Roll. He was orally directed not to sign the Muster Roll and not to attend the College. So, he issued a notice through his advocate on 29.8.2006 and informed the petitioners that he was ready to work as peon. He asserted that he was not allowed to report to the duty, sign the Muster Roll and do the work as Peon. He contended that his services were orally terminated w.e.f. 22.10.2006 without any reason. Consequently, he urged for setting aside the termination order.

4. The petitioners contended that the Respondent was appointed on 1.6.2005 and had worked only for about one month and thereafter, remained absent from duty on various occasions. It was contended that the Respondent remained absent without prior intimation since October, 2005 and hence, the notice dated 14.8.2006 was served on him, calling upon him to join the duty immediately. It was further contended by the management that the Respondent was again served with a notice dated 26.10.2006 calling upon him to duties and to explain reasons for the absence. He failed to do so. The Management asserted, therefore, that services of the Respondent stood terminated in view of Rule 50 of the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code (Terms And Conditions of Service of Non-Teaching Employees) Rules, 1984. The Management sought dismissal of the Service Appeal preferred by the Respondent, mainly on the ground that he is deserter within the meaning of said Rule (Rule 50).

5. The learned Presiding Officer of the Tribunal considered the rival submissions and the affidavits tendered by the parties and came to the conclusion that the Respondent-Dnyanoba was appointed as Peon w.e.f. 20th September, 2004 and joined the services w.e.f. 22.9.2004. The Tribunal further held that oral termination of the Respondent's service is illegal. Consequently, the deemed termination was set aside and the petitioners were directed to reinstate him as well to pay arrears of the salary w.e.f. November, 2005 alongwith costs of the appeal.

6. Mr. Latange, learned counsel for the petitioners, would submit that the Respondent was absent from duty and hence, was deserter. He would submit that the reinstatement of the Respondent is not in accordance with the law in view of Rule 50. He would submit that the Tribunal exceeded its jurisdiction while granting relief for arrears of pay when the Respondent himself had not claimed any such relief in the appeal. He would submit that the Respondent is not entitled to receive arrears of pay for the period when he was not in service nor was on duty. Hence, he urged to set aside the impugned order. Mr. Ashtekar, learned counsel for the Respondent, supports the impugned judgment.

7. Rule 50 of the Standard Code provides as follows :

"50. Deserter.

The employee who absents from duty without permission for a period of more than thirty days, shall be deemed to be deserter and his services shall stand terminated automatically on the expiry of the period of thirty days :

Provided that, whether the employee is not able to attend the duties as prescribed and not able to communicate reasons of his absence for the reasons beyond his control, the Competent Authority may, by a special order condone his absence."

A plain reading of Rule 50 reveals that deeming effect is purported to be given to termination of services of an employee on account of continuous absence for 30 days of more. The proviso, however, shows that where the employee is not able to communicate reasons of his absence for the reasons beyond his control, the absence may be condoned under special order. The expression "Deserter" would imply the employee who intentionally abandons the services.

8. The Tribunal considered the Muster-roll and the affidavits of the parties. Though it was case of the petitioner-Management that the employee was appointed w.e.f. 1.6.2005 yet, the entries in the Muster-roll showed that he had joined the services w.e.f. 22.9.2004. He had signed the Muster-roll from 22.9.2004. Obviously, the contention of the Management was rightly negatived by the Tribunal in the context of the date of joining his services by the employee. The improper attitude of the Management is thus exposed. It is conspicuous that the Management attempted to suppress the real facts as regards the date of employment of the employee (Peon). It is in this view of the conduct exhibited by the Management that the Tribunal did not believe further version in the affidavit of the Management.

9. So far as applicability of Rule 50 is concerned, it may be gathered from the letter correspondence that the Management issued a letter dated 14.8.2006 and informed the employee that he had left the College without intimation and did not join the duty inspite of oral intimation given to him. This letter does not show the period of so-called abandonment. It only vaguely reveals that the employee had left the College without prior information. Secondly, it does not show how and when the employee was orally informed to join the duty. As a matter of fact, if he had abandoned the service after October, 2005, then such details would have been mentioned on the letter dated 14.8.2006. The Management did not state in the letter dated 14.8.2006 that the employee was a "deserter" and hence, incurred deemed termination. The employee gave notice dated 28.9.2006 and clearly informed the Management that he had appeared on 22.8.2006 in the College. He further stated that he urged the Principal and the Chairman to permit him to join the duty. He was not, however, allowed to join the duty. It is for the first time in reply dated 26.10.2006 that the Management informed him about absence from duty w.e.f. October, 2005. The reply letter dated 26.10.2006 reveals that he was called upon to join the duty with explanation regarding the reason for not reporting to duty from October, 2005. The Tribunal found ring of truth in the case of the employee. It can be said that the Management did not allow the employee to sign the Muster-roll from November, 2005 with oblique intention to deprive him of the benefit of service. It is more probable that he used to report to the duty but was not allowed to sign the Muster-roll. The D.Ed. College was then unaided College. The Management further raised false defence that another employee was appointed in the stead of the Respondent. The Tribunal considered conduct of the parties and held that the employee was illegally terminated. The order of oral termination was unjust, improper and illegal. There appears no irregularity or illegality committed by the Tribunal in reaching to the conclusion that the Management was bent upon to remove the employee from service and hence, did not permit him to sign the Muster-roll after month of October, 2005. The Management appears to have given up the plea of deemed termination when the letters dated 14.8.2006 and reply dated 26.10.2006 were issued. Had the employee abandoned the service w.e.f. 1.11.2005, the Management, in natural course of official business, would have informed him about the deemed termination under Rule 50 within a reasonable period after one month i.e. after 1.1.2006. Considering totality of the circumstances, I do not find any substantial error committed by the Tribunal in the process of the fact finding. In this Writ Petition, it is impermissible to reappreciate the evidence. No interference is called for unless the impugned order is found arbitrary or patently erroneous.

10. The impugned order is quite sustainable to the extent of relief pertaining to reinstatement of the employee. The Tribunal did not, however, assign any reason as to why relief regarding arrears of salary w.e.f. November, 2005 was granted. There appears no discussion on this score. Mr. Latange, would point out from the petition of the employee that there was no prayer to grant relief of arrears in respect of salary in the appeal memo. I have perused the memorandum of appeal filed before the learned Presiding Officer, University and College Tribunal. The appeal memo does not show any grievance regarding nonpayment of the salary from 1.11.2005 onwards nor there appears any prayer of the employee to grant relief in respect of arrears of the salary. It would appear, therefore, that the Tribunal granted such relief under assumption that it was prayed for.

11. The arrears of salary can be granted only if the employee has rendered service during the relevant period. Moreover, such relief ought to be claimed. It appears that the Respondent had not worked during the relevant period. A Division Bench of this Court in "Bahujan Vikas Education Society and another Vs. Mrs. Vidya Devi W/o. Abhimanyu Raut and others" 2006(5) Mh.L.J. 124 : [2006(4) ALL MR 281], held that upon setting aside termination, full backwages to follow is not the rule of law or precedent. The Division Bench referred to "Kendriya Vidyalaya Sangathan and another Vs. S. C. Sharma" (2005)2 Supreme Court Cases 363 in support of its view. The Apex Court in the given case observed :

"Payment of backwages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straitjacket formula can be evolved, though, however, there is statutory sanction to direct payment of backwages in its entirety."

12. The Tribunal failed to notice that the employee did not ask for any relief nor it was argued as to how he was entitled to receive the full arrears of the salary. He could not be given the relief without specific prayer and particularly without showing the circumstances which could permit grant of such a relief. In this view of the matter, the direction of the Tribunal in this behalf is unsustainable and liable to be interfered with.

13. In the result, the petition is partly allowed. The direction of the Tribunal regarding payment of arrears of the salary from 1.11.2005 to the Respondent/employee is quashed. The remaining part of the impugned order is, however, maintained and the petition is dismissed to the extent of the direction of the Tribunal to reinstate the employee and to pay the costs quantified by the Tribunal. The Management is directed to pay costs of the Writ Petition to the Respondent, which is quantified at Rs.3,000/-. (Rupees three thousand). The Respondent shall be reinstated within one month, else he would be entitled to recover the arrears of salary from the date of the order of the Tribunal till he is actually reinstated in service. The petition is accordingly disposed of.

Petition partly allowed.