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2021 DIGILAW 938 (GUJ)

KIRITKUMAR KISHANBHAI VADHER v. PRINCIPAL

2021-10-13

BIREN VAISHNAV

body2021
JUDGMENT : 1. In this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 24.3.2008 passed by the Gujarat Affiliated Colleges Services Tribunal at Ahmedabad (for short, `Tribunal’) in Application No.25 of 2000 in so far as it denies salaries to the petitioner for the intervening period of about 8 years from the date of wrongful termination dated 31.8.2000 to the date of reinstatement. 2. The facts in brief are as under: 2.1. The petitioner was appointed on compassionate ground under the respondent – College as a Sweeper as his father who also was working as Sweeper under the respondent No.1 – college died in harness. 2.2. Initially the petitioner was appointed as a Daily Wager. The respondent – college thereafter carried out a regular procedure of selection and appointed one Shri Kishorkumar C. Javiya on the post of regular Sweeper. The petitioner who was also called for selection, was not selected. Aggrieved by his non-selection, the petitioner approached the Tribunal by filing Application No.7 of 1992 making a grievance of his non-selection. He also challenged his termination with effect from 15.1.1992. The Tribunal on 17.1.1992 granted interim injunction which continued till the final disposal of the application. When the Tribunal heard the application on 16.12.1992, it was observed that since Shri Kishorkumar C. Javiya who was initially appointed as a Sweeper was promoted as Peon, the post of Sweeper falling vacant, the petitioner be appointed as Sweeper. Accordingly with effect from 17.1.1992, the petitioner was appointed as a Sweeper and the petitioner, therefore, did not press his application before the Tribunal. The application was partly allowed and the Tribunal issued a direction that the petitioner be considered in regular cadre of the Sweeper with effect from 1.4.1991. The petitioner was continued to work as a Sweeper with the respondent – Institution. 2.3. On 22.8.2000, a Show Cause Notice was issued to the petitioner for being unauthorizedly absent on 28 occasions. It appears that the petitioner was on the basis of show cause notice discontinued in service. He responded to the show cause notice but since he did not respond within time, he was discontinued with effect from 31.8.2000. The petitioner approached the Tribunal by filing the application No.25/2000. The order of the Tribunal was challenged before this Court by filing SCA No.11054/2006. He responded to the show cause notice but since he did not respond within time, he was discontinued with effect from 31.8.2000. The petitioner approached the Tribunal by filing the application No.25/2000. The order of the Tribunal was challenged before this Court by filing SCA No.11054/2006. This Court by oral order dated 16.7.2007 set aside the order of the Tribunal and remanded the matter to the Tribunal to decide afresh. The Tribunal by the order under challenge rejected the application. It is observed in the order of the Tribunal that since the college made a statement that the petitioner was reinstated on 11.3.2008, the only relief that the Tribunal granted to the petitioner was that he would be treated in continuous service and entitled to salary. However, the period from 2000 to 2008 was only considered as notional services for the purposes of pensionary benefits and no actual benefits for the period were awarded on the principle of `No Work, No Pay.’ 2.4. Against the deprivation of the petitioner of financial benefits for the period of eight years, the petitioner has approached this Court. 3. Ms. Reena Kamani, learned advocate appearing for Mr. P.H. Pathak, learned counsel for the petitioner has submitted that the Tribunal failed to exercise jurisdiction vested in it. Once the Tribunal found that the order of termination is bad, back-wages for the period from 2000 to 2008 should have followed automatically. 3.1. Ms. Kamani further submitted that the Tribunal failed to consider the observations made by this Court in its order dated 16.7.2007 when the Court remanded the matter for reconsideration to the Tribunal. 3.2. Ms. Kamani submitted that there was no reason assigned by the Tribunal for denying backwages for the entire period of eight years and, therefore, the order of the Tribunal be quashed and set aside. 3.3. Ms. Kamani has placed reliance on the decision of the Hon’ble Supreme Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and others reported in 2013 (10) SCC 324 and submitted that once the conclusion is arrived at that termination is unlawful, reinstatement with continuity of service and full back-wages is normal rule. 4. Having considered the submissions made by learned counsel for the petitioner, what needs to be considered is that the petitioner was appointed as a Sweeper on compassionate ground. 4. Having considered the submissions made by learned counsel for the petitioner, what needs to be considered is that the petitioner was appointed as a Sweeper on compassionate ground. Perusal of show cause notice and the order of the Tribunal at the first instance before the remand indicate that the petitioner had remained unauthorizedly absent on 28 occasions. The respondent – college had shown concern inasmuch as, on the promotion of Shri Kishorkumar C. Javiya, despite the petitioner having challenged his non-selection, the petitioner was engaged as a Sweeper on a regular basis from 17.12.1992. 5. True that this Court had remanded the matter to the Tribunal on certain aspects as observed in the order and once again the management considering the nature of the petitioner’s engagement as compassionate appointee had reinstated the petitioner with effect from 11.3.2008. 6. In the order under challenge before the Tribunal, considering the observations made in Paragraph Nos.4 and 5 which read as under, the Tribunal though by depriving actual benefits for a period of eight years on the principle of `No Work, No Pay.’ has taken care that it would be treated as notional services for the purposes of retirement benefits. No fault can be found with the order of Tribunal. “4. L.A. Mr.M.R. Vyas has argued at length on behalf of the Applicant and drawn the attention of this Tribunal towards the show cause notice dated 22.8.2000, which was only a show cause notice, but the termination order is also covered in the said notice and Applicant was terminated from the services of the respondent – college w.e.f. 31.8.2000. But in fact, show cause notice was issued to the applicant dated 31.8.2000 and so, there was no question to reply within stipulated period. It is the case of the applicant that on compassionate ground he was appointed as Sweeper in the Respondent College. But, because of harassment by the Principal as well as the staff members and management, the applicant has raised grievance against the responded management. So, the respondent management has terminated the applicant from the services of the respondent college. It is the case of the applicant that he is entitled to leave, but the respondent management never granted leave to the applicant and because of personal difficulties, the applicant was compelled to go on leave with intimation to the authority. LA Ms. So, the respondent management has terminated the applicant from the services of the respondent college. It is the case of the applicant that he is entitled to leave, but the respondent management never granted leave to the applicant and because of personal difficulties, the applicant was compelled to go on leave with intimation to the authority. LA Ms. M.R. Vyas has drawn the attention of this Tribunal that the applicant was appointed on compassionate ground and working very satisfactorily in the respondent college. So, in the circumstances, the application can be allowed and the applicant should be reinstated in the services of the respondent College. In reply thereto, that, LA Mr. B.P. Jasani has submitted a reply dated 11.3.2008, wherein, it is precisely submitted that if the applicant is reinstated in the services of the respondent college then from that date, he will be entitled to salary under the direct payment scheme of the Government. When the applicant was terminated from the services of the respondent college w.e.f. 2000 and is not continued in the services of the respondent college, then is not entitled to salary for the above mentioned period considering the principle of `No work, No pay.’ The period for which the applicant was not continued in service of the respondent college can be considered as notional service for the retirement/pensionary benefits and if the applicant would be reinstated then he has to work regularly as Sweeper in the service of the respondent college and without prior permission, he would not be entitled to any kind of leave and has to submit conditional letter before the tribunal. 5. So, considering the arguments canvassed by L.A. Ms. M.R. Vyas and Purshis submitted by L.A. Mr. B.P. Jasani, I hereby partly allow the application of the applicant and consequently direct the respondent management to reinstate the applicant with immediate effect on the date of the applicant would join the respondent college and would be entitled to regular salary w.e.f. he joins the duty at the respondent college. The applicant would not be entitled to salary for the period for which he has not worked in the service of the respondent college and the said period for which the applicant has not worked in the respondent college would be considered as notional service of the applicant for the purpose of retirement benefits of the applicant. The applicant would not be entitled to salary for the period for which he has not worked in the service of the respondent college and the said period for which the applicant has not worked in the respondent college would be considered as notional service of the applicant for the purpose of retirement benefits of the applicant. The applicant has to remain present regularly on duty of the respondent college and without prior permission, the applicant would not be entitled to proceed on leave considering the problems of the respondent college. So, in view of above, the matters stands disposed of as partly allowed.” 7. Even the reliance placed by Ms. Reena Kamani on the decision of Deepali Gundu Surwase (Supra) is entirely not applicable to the facts of the case. Though the Court observed that the normal rule is of backwages when termination is set aside, the Apex Court has also clarified that statement by stating that there should be reason or instance to prove by the petitioner that he / she was not gainfully employed or was employed on lessor wages. This is not the case of the petitioner being argued before the Court. Moreover, the Tribunal has taken care of period when the petitioner was out of service by treating the same as notional for the purposes of pensionary benefits. Adequate sympathy has been given to the petitioner, particularly, in view of his appointment being on compassionate ground. 8. Having no merit with the submissions of Ms. Kamani, learned counsel for the petitioner, I find no reason to interfere with the order of the Tribunal. Hence, the petition deserves to be dismissed and accordingly, it is dismissed with no order as to costs. Rule is discharged.