Shri Owesh Alam Mohd Yakub Vs. the Principal of Maharashtra College of Arts, Science and Commerce and anr. - Court Judgment

Excerpt:
[a] standard code - rule 50 - desertion - absence of workman without permission - part of the absence treated as leave without pay - after exclusion of this period, no absence for continuous 30 days - rule not applicable.;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. ;[b] standard code - rule 50 - desertion - absence of workman without permission - workman a permanent employee - termination of service without any enquiry - principle of natural justice and constitutional safeguard violated.;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 provisions 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. ;[c] maharashtra universities act, 1994 - section 59 r/w sections 2(s) and 25f of the industrial disputes act, 1947 - university and college tribunal - powers - termination of services of a college workman without enquiry - worker covered by section 2(s) of the industrial disputes act - validity of termination order - tribunal has powers to decide on the basis of provisions of the industrial disputes act, 1947 - termination in violation of the provisions of the industrial disputes act - workman entitled to reinstatement.;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. - 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 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.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.