Judgment:
D.Y. Chandrachud, J.
1. Rule, returnable forthwith. Respondents waive service. By consent, Rule is taken up for final hearing.
2. The petitioner was employed as a Hamal-cum-sweeper and was a confirmed employee in the institution of the 1st respondent. The case of the petitioner is that on 16th November, 1998 he left for his village upon receiving information of the sickness of his mother. According to the petitioner, he had sent information about his absence through his colleague, one Mohd. Islam Shaikh, who is working in the same college. On 23rd November, 1998, the respondents informed the Petitioner that the period of his absence from 10th November, 1998 to 22nd November, 1998 was being treated as leave without pay. On 27th November, 1998, a letter was issued by the respondents to the petitioner calling upon him to resume duty. On 12th December, 1998, when the petitioner came to work he was not allowed to resume and was informed that his services had been terminated with effect from 10th December, 1998 under Rule 50 of the Standard Code. Representations sent by the petitioner and by the Employees' Union resulted in no change of heart. The petitioner filed an appeal on 5th March, 1999 before the University and College Tribunal. By the impugned order dated 8th October, 1999 the Tribunal upheld the order of termination and dismissed the appeal filed by the petitioner.
3. The Learned Counsel for the petitioner submitted that, in the first place, the provisions contained in Rule 50 of the Standard Code are not attracted to the case as the petitioner was not absent continuously for a period of 30 days. Rule 50 of the Standard Code provides as follows:
'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, whenever 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.'
4. The period between 10th November, 1998 to 22nd November, 1998 was admittedly treated as leave without pay by the letter dated 23rd November, 1998 which the management addressed to the petitioner. The petitioner cannot, therefore, be regarded as having been continuously absent for a period of more than 30 days within the meaning of Rule 50 of the Standard Code. Once the period between 10th November, 1998 and 22nd November, 1998 came to be treated as leave without pay, it would not be possible to contend that the aforesaid period will stand included in the period of absence of 30 days for the purposes of Rule 50 or that consequently the petitioner should be declared as a deserter. Since leave had been granted to the petitioner, though without pay, it was impermissible to compute the period from 10th November, 1998 to 22nd November, 1998 as part of the period of 30 days. The recourse to Rule 50 was in the premises not justified.
5. The second submission, which has been urged on behalf of the petitioner is equally, of substance. The contention urged is that the petitioner was a confirmed employee and his services should not have been terminated without an enquiry. In D.K. Yadav v. J.M.A. Industries 1993 S.C.C. 723, it has been held by the Supreme Court that the services of a permanent employee cannot just be struck off the Muster, nor can service be terminated without holding an enquiry. Termination from service attracts a stigma and it causes serious consequences in the life of an employee. The source of livelihood of the employee is sought to be taken away. That being the position, the provisions contained in Rule 50 of the Standard Code must be read in a manner which is consistent with the principles of natural justice. If this is not done the provision would be rendered constitutionally infirm and would be liable to be challenged on the ground that it is arbitrary and ultra vires. A provision which confers upon an employer an unrestricted power to treat an employee who is absent as having deserted or abandoned service, without an enquiry would suffer from the vice of arbitrariness and would violate Article 14. The provision can be saved only by reading into it the requirement of complying with the principles of natural justice. In fact the proviso to Rule 50 contemplates that an employee may not have been able to communicate the reasons for his absence on account of circumstances beyond his control. The competent authority can then condone the absence by a special order. This provision does therefore implicitly recognise the need to observe the principles of natural justice because it is only upon the furnishing of an opportunity that the employee can make out the reasons beyond his control which justified his absence without intimation. The services of a confirmed employee cannot be terminated without an enquiry, on the basis that the period of unauthorised absence of the employee of 30 days will be sufficient to declare the employee as a deserter, under Rule 50. Rule 50 is a relic of a theory which is fundamentally at odds with our service jurisprudence. The operation of the rule must be structured to make it consistent with the tenets of service law and constitutional safeguards.
6. The third submission which was urged before the Tribunal and which has been reiterated before me was that the petitioner was a workman, since he was employed as Hamal-cum-sweeper. As a workman, the petitioner was within the purview of the provisions of section 2(s) of the Industrial Disputes Act, 1947. The termination of his services without complying with the provisions of section 25-F of the Industrial Disputes Act, 1947 rendered the termination invalid. I find substance in this submission. The Presiding Officer of the Tribunal was of the view that the provisions of the Industrial Disputes Act, 1947 would not be attracted. This view is erroneous. The University and College Tribunal was constituted under the provisions of section 58 of the Maharashtra Universities Act, 1994. Section 59(1) of the Act is a non obstante provision and enunciates that notwithstanding anything contained in any law or contract for the time being in force, any employee (whether a teacher or other employee) in any University, affiliated college or recognised institution, who is dismissed or removed or whose services are otherwise terminated shall have a right of appeal to the Tribunal. Section 61 sets out the powers of the Tribunal and sub-section (2) thereof empowers the Tribunal to inter alia reinstate an employee if it comes to the conclusion that the order of dismissal, removal or termination was 'in contravention of any law contract or conditions of service for the time being in force or was otherwise illegal or improper'. These are words of a wide amplitude which were designedly used by the legislature. The University and College Tribunal is a specialised Forum which has been constituted for dealing with grievances of the teaching and non teaching employees of Universities governed by the Act and their affiliated Colleges and Institutions. Section 59 confers a right of appeal upon the class of employees referred to therein. Consequently, the remedy of an employee covered by the provisions of Section 59 of approaching the Labour of Industrial Court has now been vested in the Tribunal. That is why the Tribunal has been given an extraordinarily wide power to determine as to whether the termination of service was 'in contravention of any law, contract or conditions of service or was otherwise illegal or improper'. The protection conferred upon employees of Universities and their affiliated colleges or institutions must be given full amplitude. The protection is intended to subserve a public purpose and ought not to be whittled down by a narrow construction. The remedy conferred by section 59 empowers the Tribunal to test the validity of an order of termination on the anvil of the provisions of the Industrial Disputes Act, 1947 where, as in the present case, the non teaching employee was a workman within the meaning of section 2(s). In the present case, the employee was admittedly a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947. The termination of his service was in violation of the provisions of the Industrial Disputes Act, 1947. That being the position, the employee was clearly entitled to relief on this ground.
7. The learned Counsel appearing on behalf of the respondent submitted that even if this Court is inclined to set aside the impugned order and direct the reinstatement of the employee, a suitable order in regard to the payment of only a portion of back wages may be passed particularly in view of the fact that the employee was unauthorisedly absent and the institution in question is an aided institution. Having regard to the facts and circumstances of the case and particularly considering the fact that the petitioner was unauthorisedly absent, it would be in the interests of justice while setting aside the order and directing the reinstatement of the employee, to direct that an amount of 50 per cent of the back wages be paid.
8. In the circumstances, the impugned order of the College and University Tribunal dated 20th October, 1999 is quashed and set aside. The order of termination of service is also illegal and is quashed. The petitioner shall be reinstated in service forthwith. In the circumstances, the petitioner will be entitled to the payment of 50 per cent of the back wages. The order of reinstatement be carried out forthwith. Payment of the back wages shall be made within a period of 4 weeks from today.
9. Rule is made absolute in the aforesaid terms. There will be no order as to costs.
10. Parties to act on an ordinary copy of this order duly authenticated by the Personal Secretary of this Court.