IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1151 OF 2012
Sanjeevan Gramin Vaidyakiya &
Samajik Sahayata Pratisthan
versus
Gorakhnath Popat Bandhane
CORAM : ANOOP V. MOHTA, J.
DATE : 05th july 2012
. Heard by consent of the parties.
2} The petitioner has challenged the impugned order dated
23.12.2011 whereby the learned Presiding Officer, considering the
termination notice and undisputed facts that no opportunity
whatsoever was given before terminating the respondent and
thereby caused breach of principles of natural justice, has set aside
the termination notice and directed to reinstate to the post of
Laboratory Attendant with continuity and back wages. Though time
was granted, till this date the order is not yet complied with.
3} The learned counsel appearing for the petitioner has strongly
relied on the Judgment of the Full Bench in Saindranath
Jagannath Jawanjal vs. Pratibha Shikshan Sanstha & Anr
1
and
placed reliance specifically on paragraphs 45 and 46 which reads as
under :
“45 ….In this behalf, readily available judgments
are in the case of (State of Punjab and others vs. Dr.
Harbhajan Singh Greasy, U.P.State Spinning Co.Ltd. vs.
R.S. Pandey and anr, (2005) 8 SCC 264, (U. P. State
Textile Corpn.Ltd. vs. P.C. Chaturvedi and others,
2005(8) SCC 211; wherein the Supreme Court has
observed that in case of no enquiry or defective
enquiry, proper relief is to set aside the dismissal with
direction to the management to hold enquiry from the
1 2007 (3) Bombay Cases Reporter 527
stage the illegality has crept in and that the
reinstatement is to be treated for the purposes of
holding fresh enquiry and no more. So far as back
wages are concerned, the entitlement thereof is to
make dependent on the final outcome of the fresh
enquiry.
46 The aforesaid principle has been adopted by
the Division Bench of this Court while considering
provisions of the M.E.P.S. Act in the case of (Kashiram
Rajaram Kathane vs. Bhartiya R.B. Damle Gramsudhar
Shikshan Prasar Sanstha, 1997(3) Mh. L.J.235;
wherein and the Division Bench has read the aforesaid
statement of law and the principles recognised by the
Supreme Court in section 11 of the Act. This view is
holding the filed for a decade.”
He further relied upon a judgment in Kashiram Rajaram Kathane vs.
Bhartiya R. B. Damle Gram Sudhar Tatha Shikshan Prasar Society &
Ors reported in 1997(3) Maharastra Law Journal 235.
4} The principles so laid down by the Hon'ble the Supreme Court
and as followed by the Full Bench of this Court, in my view, need no
discussion and/or elaboration. We have to consider the facts and
circumstances of each and every case. In the present case the
respondent has served for more than five years as Laboratory
Attendant. There is nothing on record that prior to the alleged
incident there was any show cause notice and/or memo issued
and/or served. Admittedly, apart from any adverse memo, no show
cause notice whatsoever was issued prior to the termination notice
dated 31.3.2011. The question of enquiry comes if any charges
with show cause is issued.
5} After going through the contents of the termination order and
hearing both the counsel appearing for the parties, I am inclined to
observe that the termination order as stands, itself is very unclear
and vague but stigmatic. The allegation of some undisclosed and/or
alleged doubtful activities that itself cannot be the reason not to
issue any memo and/or show cause notice and/or not to hold
enquiry before terminating any employee.
6} The employer in a given case at his risk may terminate the
employee without assigning any reason and even without issuing
show cause notice. The Court needs to consider whether the basic
principle of natural justice which has various facets and which
cannot be invoked only from the point of view of the employers but
also from the point of view of the employee. In the present case,
in my view, there is a discussion referred to the rival contentions
raised for the first time in the appeal. The Management and/or the
employee cannot give justification to terminate the employee for the
first time during trial and/or before the Tribunal. It definitely
affects the right of the employee to deal and/or to defend the case
at appropriate time.
7} If the Management as recorded, has certain adverse material,
they must initiate steps as required in accordance with law. Once
they fail to take steps and they take risk of terminating service
without issuing adverse memo and/or show cause notice and now
to justify the same action, submits supporting material for the first
time in the Tribunal and/or before the Court and to say that the
grievances are very serious against the delinquent and/or employee,
in my view, is of no assistance. The abrupt termination in such cases
basically when averments alleging the doubtful activities itself
means that the Management had previous knowledge and/or at
least undisclosed material to support their action. The alleged
collection of so called doubtful activities and/or materials brought
and/or with the Management, just cannot be the foundation to
terminate any employee without giving notice and/or at least memo
of those activities alleged by others. Such averments and/or such
adverse material forwarded by others and/or collected by the
Management has various facets including internal or external
politics. In my view, such undisclosed and vague reasons cannot be
accepted as foundation to terminate the employees abruptly as done
in the present case. The practical aspect of internal politics and/or
external forces just cannot be overlooked. The service
jurisprudence no where permits the parties to overlook practical
side of such human intuition. If the management is clear and they
6/97
AGK wp1151-12-karode.doc
have material to support the action, then it is necessary for them to
disclose and give full opportunity to the employee before taking
drastic action of termination, basically, when the Petitioner was in
service for more than five years. The judgments, therefore, so
cited in the present facts and circumstances, are not sufficient to
interfere with the order so passed by the Presiding Officer.
8} I am not denying the right of the management to issue fresh
show cause notice and/or to enquire into the matter. They are free
to take action if they desire. The Court may not direct the private
management to hold fresh enquiry in particular manner or method.
Whatever material which they have, they may take their own
decision and proceed to enquire and/or pass the appropriate order
after giving opportunity to the parties. At the show cause notice
stage in my view, the Court cannot direct to decide and/or to hold
enquiry based upon the vague and unclear show cause notice
basically when it is a private litigation between the employee and
employer, of the private management. The Management in a given
case, if proper explanation is given and after verifying the material,
7/98
AGK wp1151-12-karode.doc
which they have collected and which they have brought, may
withdraw the show cause notice and/or may drop the proceedings.
It is the domain of the management to take action which they desire
based on the material available and/or in the given case the parties
may settle the matter then and there only. No question of direction
from the Court even at such stage of conflict and/or dispute.
9} The learned counsel appearing for the respondent has
contended that let the petitioner be kept under suspension and the
management be permitted to hold enquiry and/or take appropriate
steps. Admittedly, the respondent was never under suspension at
any point of time. No show cause notice was issued. No officer was
appointed. Therefore, submission to keep him under suspension is
uncalled for. The thing which was not done at the initial stage
cannot be directed by the Court for the first time and basically in a
dispute of this nature. Once the termination order itself goes, the
sequence should be reinstatement to the post with continuity and
backwages as directed. Nothing is wrong in it.
8/99
AGK wp1151-12-karode.doc
10} “No work No Wages” should be the formula. It is not necessary
in every matter that full back wages should be provided and/or
granted. But in a case like this and considering the facts and
circumstances, where the action of termination as recorded is
apparently in breach of the basic principles of natural justice, there
is no reason even to interfere with the order of back wages. In every
matter though the principle of full back wages need not be followed
but at the same if the action is illegal and in contravention of basic
principles, I see there is no reason that the order of back wages as
awarded need to be interfered with. Apparently the respondents and
his family suffered because of illegal action. Therefore, taking over
all view of the matter, no interference is called for. The petition is
dismissed. Adinterim order stands vacated. No costs.
(ANOOP V. MOHTA, J)
9/9
No comments:
Post a Comment