Laxman Shriyan Vs. Air India Ltd. and ors. - Court Judgment

Excerpt:
labour and industrial - disciplinary action - petition challenging order of respondent terminating petitioner's service for submitting bogus certificate so as to enjoy benefits due to scheduled castes and scheduled tribes - petitioner had already been punished for same offense earlier - merely because as per presidential directive issued subsequently certain penalties are to be imposed again despite fact that for such offense departmental orders passed and implemented cannot be said to be justified - petitioner being already punished once cannot be subjected to further punishment as per governmental directions issued subsequently. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - the submission is well founded. 5. the petitioner by his letter dated november 9, 1984 while giving his explanation stated that the moger as well as mogaveera communities carry on the profession of fishing; this would lead to disastrous consequences especially for employees, if authorities are permitted to reopen cases merely on the ground that by virtue of governmental directions certain penalties are to be imposed once again despite the fact that in respect of the same conduct, departmental proceedings are already concluded and orders are passed and implemented.s.j. vazifdar, j.1. the second respondent is the union of india. respondent nos. 3, 4 and 5 are the general manager, s & p. department, deputy general manager (personnel) and assistant manager (administration s & p), department of respondent no. 1 respectively.2. the petition challenges an order of the respondents dated february 21, 1997 terminating the petitioner's services with immediate effect on the ground that he had submitted a bogus caste certificate with the intention of enjoying the benefits due to scheduled castes/scheduled tribes candidates.3. the main submission of shri dighe is that for the same alleged offence the petitioner had already been punished and admittedly after the punishment was fully; implemented the petitioner continued in service. in fact, the first respondent has on several occasions thereafter expressed its appreciation and commended in writing the petitioner's diligence. the submission is well founded.4. it is necessary therefore to set out the facts prior to the impugned order dated february 21, 1997.the petitioner was served a show cause on november 2, 1984 alleging that he had submitted a letter to the first respondent stating that he belonged to the 'moger' caste which was recognised as a scheduled castes and also an affidavit sworn before the metropolitan magistrate, mumbai, stating that he belonged to 'moger caste' which is recognised as a scheduled caste. it was further alleged that the petitioner in fact belonged to the mogaveera caste, which is not a scheduled caste. the petitioner was, therefore, charged with furnishing wrong information about his caste. he was called upon to furnish his explanation for the same failing which respondent no. 1 stated that suitable disciplinary action would be taken against him.5. the petitioner by his letter dated november 9, 1984 while giving his explanation stated that the moger as well as mogaveera communities carry on the profession of fishing; that since moger fishermen in north kanara are recognised as belonging to a scheduled caste and as he belonged to a 'fishermen folk' of south kanara, he construed his community to be scheduled caste and, therefore, treated mogaveera as synonymous with moger. having realised that the mogaveera community to which he belongs is not a scheduled caste, he expressed his regret and stated that he had no intention of furnishing wrong information.6. the first respondent by its order dated november 13, 1984 after considering the representation of the petitioner observed that the petitioner has been in service for the past nine years and this was the first act of alleged misconduct on his part. it was further stated that considering the fact that the petitioner had admitted the charge levelled against him and in view of the satisfactory service rendered by him for the past nine years, the ends of justice would be met if his increment due on september 1, 1984 was deferred by 6 months. it was also ordered that the petitioner would be due for increment on march 1, 1985.7. it is the admitted position that the punishment imposed by this order was implemented. the petitioner was reverted back to the post where he was appointed and working for nine years. moreover he did not gain monetarily for such appointment on the promotional post since he was receiving the same pay scale having reached the maximum in that scale. the penalty of stoppage of increment for six months was also imposed upon him. after reversion to his original post he was promoted as senior clerk (stores clearing).8. thereafter on november 22, 1985, december 29, 1986 and april 8, 1990 the petitioner was in fact promoted to various posts. he was promoted as senior clerk (stores clearing) w.e.f. march 1, 1985 in the stores and purchase department. with effect from january 1, 1987 he was promoted as office assistant. with effect from january 1, 1993 he was promoted as senior office assistant. between 1988 and 1994 the petitioner even received certificates of appreciation from the first respondent for his services. the certificates are annexed to the petition.9. as stated above, for the alleged offences committed by the petitioner, the order dated november 13, 1984 was passed against him. almost 12 years later, the first respondent passed the impugned order on february 21, 1997. by this order, for the same offence for which the petitioner had already been punished by the order dated november 13, 1984, respondent no. 1 terminated the services of the petitioner purportedly in accordance with rule 13(1) of the model standing orders (central) schedule i read with para 22 of the president's directive. the impugned order does not consider the effect of the order dated november 13, 1984. the limited question for our consideration, therefore, is whether in view of the order dated november 13, 1994 having already been passed and implemented, it is open to respondent no. 1 to issue another order, twelve years later at that, imposing a further punishment of such a drastic nature in respect of the same alleged conduct of the petitioner. our answer is in the negative.10. we are of the view that the impugned order is unsustainable. the impugned order is in respect of the same alleged offences on the part of petitioner for which respondent had already taken action and implemented the same. merely because the presidential directive was issued subsequently to the effect that if verification reveals that his claim that he belongs to sc/st is false, the services of an employee will be terminated forthwith without assigning any further reasons can be no justification for imposing a further penalty in respect of an offence which has already been dealt with. this would lead to disastrous consequences especially for employees, if authorities are permitted to reopen cases merely on the ground that by virtue of governmental directions certain penalties are to be imposed once again despite the fact that in respect of the same conduct, departmental proceedings are already concluded and orders are passed and implemented. we refrain from expressing any opinion on the question as to whether adjudicating authorities are bound by such directives. even assuming they are, they cannot be made applicable in the present case in view of the petitioner having already been punished once.11. in the circumstances we pass the following order:rule made absolute in terms of prayer clause (b). the respondent no. 1 shall pay to the petitioner costs of this petition fixed at rs. 1,000/-.certified copy expedited.