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Judgment
By this writ petition, the petitioner has challenged the judgment and order dated 08/12/2014 passed by the University and College Tribunal, Nagpur,
whereby appeal filed by her challenging her dismissal from service in the post of Lecturer, has been rejected and the action of respondent Nos.2 and 3
has been upheld.
The case of the petitioner before the said Tribunal was that she had been initially working as a contributory Lecturer in respondent No.3ÂCollege,
run by respondent No.2ÂSanstha (Management). She cleared the State Eligibility Test (SET) in the year 2002, thereby becoming eligible for
appointment in the post of Assistant Professor/Lecturer. In the year 2005, respondent No.3 issued advertisement for appointment on the post of
Lecturer for various posts, including the subject of social work for which the petitioner was eligible. The petitioner submitted an application in
pursuance of the said advertisement and by letter dated 16/06/2006, she was invited for appearing in interview to be conducted on 15/07/2006. Upon
finding her suitable for appointment in the post of Lecturer, respondent No.2 through its Secretary, issued appointment letter dated 26/07/2006 to the
petitioner stating that she was appointed on probation period and further that her services would be governed by the provisions of the Maharashtra
Universities Act, 1974, Notifications and Statutes as also Ordinances of respondent No.5ÂUniversity. Respondent No.3ÂCollege run by respondent
No.2ÂManagement is affiliated to respondent No.5ÂUniversity.
It was the case of the petitioner that she worked on the said post in respondent No.3ÂCollege without any complaint regarding her services and
when the period of two years was about to be completed, on 30/07/2008, respondent No.2Â Management issued a letter to her stating that her
performance and conduct was not found to be satisfactory and that she was being given an opportunity to improve the same and that accordingly her
probation period was being extended.
Thereafter on 31/07/2009, respondent No.2Â Management issued a letter to the petitioner informing her that her performance and conduct was not
found to be satisfactory despite the extension of probation and that therefore, her service was being terminated. Aggrieved by the same, the petitioner
filed appeal before the University and College Tribunal, Nagpur (hereinafter referred to as the “Tribunalâ€) under section 59 of the Maharashtra
Universities Act, 1974. It was contended on behalf of the petitioner that the termination of her service was illegal because she became a confirmed
employee on completion of two years of probation and that her service could not have been terminated without proper enquiry. It was also contended
that the nature of the order of termination of service was stigmatic and that therefore, even if she was to be treated as an employee on probation, such
stigmatic order of termination of service was unsustainable.
The Tribunal passed impugned order dated 08/12/2014 holding that reliance placed by the petitioner on Ordinances and Statutes of respondent
No.5ÂUniversity was misplaced because the appointment order dated 26/07/2006 issued in favour of the petitioner clearly stated that she was
appointed on probation for two years and that the probation period could be extended and further that her appointment would not be deemed to be
confirmed unless an order of confirmation was separately issued in her favour. The Tribunal also held that the language used in order dated
31/07/2009, terminating the services of the petitioner, could not be said to be stigmatic. On this basis, the Tribunal dismissed the appeal filed by the
petitioner.
Aggrieved by the same, the petitioner has filed the instant petition. Shri P.D. Meghe, learned counsel appearing on behalf of the petitioner
contended that the Tribunal had committed an error in placing reliance on certain clauses of the appointment order dated 26/07/2006, while ignoring
other relevant clauses. It was submitted that clause 6 of the appointment order clearly stated that services of the petitioner would be governed by the
provisions of the aforesaid Act as also Notifications, Statutes and Ordinances of respondent No.5Â University. It was contended that Ordinance
No.24 and Statute 53 of respondent No.5ÂUniversity clearly provided that period of probation could only be for a maximum period of two years and
upon completion of the same, the employee was deemed to be confirmed in service. It was contended that by operation of the said Ordinance and
Statute, the services of the petitioner stood confirmed upon completion of service of two years and that any clause contrary to the same mentioned in
the appointment order could not prevail upon provisions of the Ordinance and the Statute governing the service of the petitioner.
The learned counsel for the petitioner also placed reliance on the fact that under Ordinance No.24 of respondent No.5ÂUniversity, there was an
agreement specified in ScheduleÂA applicable to members of staff of affiliated colleges like respondent No.3ÂCollege, wherein clauseÂ2 specifically
provided that the total period of probation in no case would exceed two years. In this context, the learned counsel placed reliance on a Full Bench
judgment of this Court in the case of Premlata Sudhakar Sathe v. Governing Body of G.S.Tompe College and others, reported in 1981 Mh.L.J. 332
wherein it has been categorically held that even if agreement specified in ScheduleÂA to Ordinance No.24 of respondent No.5ÂUniversity was not
executed after appointment of an employee, terms and conditions in the proforma agreement provided in ScheduleÂA would still apply and govern the
conditions of services of such an employee. The learned counsel submitted that even if actual agreement as provided in ScheduleÂA of the said
Ordinance was not executed in the present case, the terms and conditions of the same were applicable, thereby showing that the petitioner could have
been continued in probation for a maximum period of two years. It was submitted that when StatuteÂ53 of respondent No.5ÂUniversity was read
with the said Ordinance No.24, it was clear that the service of the petitioner stood confirmed on completion of probation of two years and that
therefore, the services of the petitioner could not have been terminated by respondent No.2 without proper enquiry. It was further submitted that a
perusal of the order of termination of service dated 31/07/2009 showed that it was not only mentioned that the performance and conduct of the
petitioner was not found to be satisfactory, but there was a reference made to a report submitted by the Principal of the College, upon which reliance
was placed by respondent No.2Â Management, while copy of the same was never furnished to the petitioner. In this context, it was submitted that the
said order of termination of service was clearly stigmatic in nature and that as per settled law the said order stood vitiated. On this basis, it was
submitted that the petition deserved to be allowed.
Per contra,Mr.S.P.Bhandarkar,learned counsel appearing for respondent Nos.2 and 3, submitted that the appointment order dated 26/07/2006
clearly specified that the appointment of the petitioner was on probation for a period of two years and that the probation was liable to be extended.
The learned counsel placed reliance on clauses 1, 4 and 10 of the said appointment order to contend that the services of the petitioner could have been
confirmed only by a specific order of confirmation and when no such order had been issued, the petitioner could not claim deemed confirmation upon
completion of two years of probation. It was submitted that the order terminating the services of the petitioner was not stigmatic in nature because it
simply expressed the opinion of respondent No.2ÂManagement that the performance and conduct of the petitioner was not found to be satisfactory
during the period of probation, more so when the period of probation had been extended by a specific order dated 30/07/2008, whereby the petitioner
had been granted a chance to improve her performance. On this basis, it was submitted that the Tribunal had not committed any error in dismissing the
appeal of the petitioner.
Mr. P.B.Patil, learned counsel appearing on behalf of respondent No.5ÂUniversity, invited the attention of this Court to Ordinance No.24 and
StatuteÂ53 of respondent No.5ÂUniversity. It was pointed out that Ordinance No.24 specifically applied to colleges like respondent No.3ÂCollege
that were affiliated to the said University. StatuteÂ53 of the University was also pointed out, which provided for confirmation of teachers working in
affiliated colleges. Referring to the said Ordinance and the Statute, it was submitted that the probation period in any case could not exceed the period
of two years and that on completion of two years of probation, the teacher/employee was deemed to have been confirmed. On this basis it was
contended by the learned counsel that appropriate orders may be passed in the present writ petition.
Having heard learned counsel for the parties, the issues that arise for consideration in this writ petition are, firstly, whether the service conditions
of the petitioner were governed by the Ordinance and the Statute of respondent No.5ÂUniversity; Â
secondly, whether the appointment order specifying clauses contrary to the Ordinance and Statute of respondent No.5Â University would prevail;
thirdly, whether the petitioner could be said to be deemed confirmed in service upon completion of probation period of two years; fourthly whether the
impugned order of termination of service of the petitioner was stigmatic in nature; fifthly, whether the impugned judgment and order of the Tribunal
was sustainable; and sixthly, whether the petitioner was entitled to relief of reinstatement with all consequential benefits.
A perusal of Ordinance No.24 of respondent No.5Â University, also called the College Code, shows that it came into effect from the Academic
Session 1967Â68 and under clauseÂ3, the said Ordinance is applicable to colleges admitted to the privileges of respondent No.5ÂUniversity thereby
showing that it is applicable to affiliated colleges like respondent No.3ÂCollege wherein the petitioner was appointed. ScheduleÂA to the said
Ordinance No.24 provides proforma of an agreement that such affiliated colleges are required to execute with members of its staff and copy of this
proforma agreement has been annexed as AnnexureÂ7 to the writ petition. The relevant clauses of the said agreement are as follows â€
“2. That the party of the first part is employed in the first instance on probation for a period of one year and shall be paid monthly salary of
Rs................, the period of probation may be extended by such further period as the party of the second part may deem fit, but the total period of
probation shall, in no case, exceed two years.
Provided during the probation period, of the benefit of normal increment which falls due after completion of one year's service is given.
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After confirmation the services of the party of the first part can be terminated only on the following grounds :Â
(a) Willful and persistent neglect of duty,
(b) Misconduct.
(c) Breach of any of the terms of contract,
(d) Physical or mental unfitness,
(e) Incompetence,
(f) Abolition of the posts.
Provided firstly, that the plea of incompetence shall not be used against the party of the first party after he has served the part of the second part for
five years or more.
Provided secondly, the services of the party of the first part shall not be terminated under clause (c) or (f) without the previous approval of Nagpur
University.
Except when termination of service has taken place under subÂclause (a) or (b) of clause (8), neither the party of the first part nor the party of the
second part shall terminate this agreement except by giving to the other party three calendar months notice in writing or by paying to the other party a
sum equivalent to thrice the monthly salary, which the party of the first part is then earning.
Notice period of termination of service by or of the staff on temporary or probationary appointment should be restricted to one month only.â€
StatuteÂ53 of respondent No.5ÂUniversity pertains to confirmation of teachers working in affiliated colleges like respondent No.3ÂCollege
herein. The said Statute reads as follows:Â
STATUTE â€" 53
Statute Providing for the Confirmation of the Teachers in Affiliated Colleges.
This Statute may be called “Statute Providing for the confirmation of teachers working in affiliated colleges.â€
This Statute shall come into force with effect from the date of the assent of the Chancellor.
For the purpose of this Statute :Â
(i) “Affiliated College†means a college affiliated to Nagpur University under Section 43 of the Nagpur University Act, 1974 and includes a
College deemed to be affiliated college under Section 91 of the said Act, but shall not include a college managed and maintained by the State
Government.
(ii) “Teacher†means a teacher working as such in an affiliated college as defined above and shall include the Principal, the ViceÂPrincipal and
Physical Education Teacher.
A Teacher shall subject to the procedure of Selection and appointment be appointed in a clear vacancy in the first instance on probation for two
years (24 months) from the date of his appointment, at the end of which he shall be confirmed on the expiry of which he shall either be confirmed or
his services dispensed with, provided that notice of such confirmation or termination of services shall be given atleast one month before the due date,
in absence of which it shall be construed that he has completed the period of probation satisfactorily and that he is deemed to be confirmed in service:
Provided that if any teacher already in service has completed two years service temporary/probation in clear vacancy, he will be deemed to be a
confirmed teacher.
Explanation: It is hereby clarified that clear vacancy means a vacancy which is not in a lien vacancy or leave vacancy and that vacancy/post is in
vogue in the Institution for not less than four years.
Termination of the services of any teacher shall take place only in accordance with the provisions of the College Code Ordinance (No.24) and
contract appended thereto.
Provided that, in case of a teacher, who is already confirmed prior to the commencement of this Statute or in case of a teacher covered by para 4
above, no notice of termination shall be issued or termination made effective, without the prior approval of the Executive Council of Nagpur
University.â€
In this context Full Bench judgment of this Court in the case of Premlata Sudhakar Sathe v. Governing Body of G.S.Tompe College and others
(supra) is relevant. The following question was referred to the Full Bench for consideration.
“Are the terms and conditions in the proforma of agreement under ScheduleÂA of Ordinance No.4 of the Nagpur University known as the College
Code, binding and enforceable between the teacher and the Management even if no written contract is executed?â€
While answering the said question, the Full Bench of this Court held as follows :Â
“6. It is needless to say that the College Code was framed by the University to protect teachers from unscrupulous Managements from terminating
their services or making appointments at their whims. The intention behind the framing of the College Code is to provide for better conditions of
service to the teachers in the affiliated colleges and also to provide protection against unscrupulous removal, termination and dismissal from service. If
that is the intention behind the framing of the College Code, then the provisions of ChapterÂV relating to the selection and appointment of teachers
will have to be construed in this background. Article 33 of the College Code deals with the appointment of teachers and provides for the procedure to
be followed for such appointments. By subÂarticle (2) of the said Article it is provided that such teachers shall be appointed on a written contract in
the form prescribed in ScheduleÂA. The phraseology used in sub Article (2) clearly indicates that the appointment is not contemplated in any other
manner except on a written contract in the form prescribed in ScheduleÂA. It is not open to the parties to vary the terms of this written contract to
the disadvantage of the teacher. Thus, in substance, the form prescribed in ScheduleÂA is a statutory form of contract and is a part and parcel of
ChapterÂV of the College Code itself. If that is so, then mere nonÂexecution of the contract cannot vitiate the appointment, nor can it affect the
enforceability or the binding nature of the contract itself. When applications are invited by the Management for appointment of a teacher as per the
provisions of Article 38 of the College Code, it can safely be presumed that the Management intends to make the appointment of teacher subject to
the terms and conditions incorporated in the form prescribed by ScheduleÂA. Article 38(2) makes it clear that such teacher can only be appointed on
a written contract in the form prescribed in ScheduleÂA. The word “shall†is indicative of this intention. Similarly, a candidate who offers himself
for appointment as a teacher on probation is also presumed to do so with the requisite knowledge of his rights and liabilities incorporated in the form of
written contract prescribed in ScheduleÂA. If this is so, then the execution of a written contract is nothing but a mere formality. Normally a dispute or
fight between an individual teacher and the Management is unequal in nature. In these circumstances, an unscrupulous employer cannot be permitted
to take advantage of his own wrong of not getting a written contract duly executed, nor a teacher can avoid his responsibility under the said contract
only because he has not signed the written contract. This is case where a form of contract is prescribed by the statute and the rights and liabilities
flow from this statutory contract itself. Article 38(2) will have to be read together with the ScheduleÂA which forms a part and parcel of the said
Article of the College Code. The provisions of the College Code cannot be read in isolation divorced from the ScheduleÂA. The parties cannot be
permitted to evade their liability under this statutory contract only because the ministerial act of signing the contract was not carried out. It is the
substance of the matter which should take precedence over mere form. It is well settled that a construction should be put on such provisions of law
which will suppress the mischief and advance the remedy. It must be so construed as to defeat all attempts of evasion or to avoid the obligations
flowing from it even indirectly or in the circuitous manner. A construction will have to be preferred which will help avoiding injustice and absurdity and
a construction which will help the party to escape from the obligation or will enable him to defeat the statute or to impair the obligation of the contract
by his own act or otherwise will be profited by his own wrong will have to be avoided. If two interpretations are possible, then the one which will
suppress the mischief and advance the remedy will have to be preferred. The execution of the written contract is contemplated after following the
procedure for selecting a candidate for appointment. After the appointment letter is issued a written contract would be executed. If this is so, the
execution of a written contract is followed by the initial appointment of the teacher after following the procedure prescribed by Articles 38 and 39 of
the College Code. If no option is left to the Management in the matter of appointment, then, in our opinion, the ministerial act or a formality of nonÂ‐
execution of the contract cannot change the substance of the contractual obligation or liabilities. By the College Code itself, a statutory form of
agreement is prescribed. This means that the terms and conditions of the contract are also prescribed by the statute itself. In view of this, the
execution of the written contract is a mere formality and not the substance of the matter. Any infirmity or formal defect in the actual execution of the
contract cannot vitiate the contract itself, nor can it rob the parties of the rights and obligations flowing from the statutory contract. In the present
case, it is an admitted position that the appointment of the petitioner was not made on a temporary basis but she was appointed on probation. This
being the position, the form prescribed in Schedule A was applicable to the appointment of the petitioner and, therefore, the terms and conditions
incorporated in the written contract prescribed in ScheduleÂA automatically become applicable to her as soon as she is appointed on probation as per
the provisions of Chapter V of the College Code. This is the net result of the appointment made under Articles 38 and 39 of Chapter V of the College
Code. Though it is better that a written contract should be executed by the parties in the form prescribed in ScheduleÂA, in our opinion, mere nonÂ‐
execution of the written contract cannot vitiate the appointment, nor it can rob the teacher of his rights under the agreement prescribed in ScheduleÂA
itself.â€
Since a reference has been made to clause 38 of Ordinance No.24 in the above quoted portion of the Full Bench of this Court, it would be relevant
to reproduce Clause 38 which reads as follows:Â
“38. (1) The appointments of the teachers of a College, other than temporary teachers for a period not exceeding one academic year shall be made
by the Governing Body of the College, after inviting applications for the posts by public advertisement, and after considering the recommendations of
the Selection Committee as per Article 39.
The letter of appointment of a temporary teacher shall specify the period of notice of termination on each side, but it shall not be less than one month.
A temporary teacher who resigns his services after giving notice shall not be entitled to his summer vacation salary.
(2) Such teachers shall be appointed on a written contract in the form prescribed in ScheduleÂA.â€
Before proceeding further it would be relevant to state here that Ordinance No.24 of respondent No.5ÂUniversity applies to teachers and
employees appointed in affiliated colleges like respondent No.3 herein while Ordinance No.122 applies to teachers employed by respondent No.5Â‐
University itself in its departments and institutions maintained by it. This assumes significance because Clause 6(ii) of Ordinance No.122 defines
“Probationary Teacher†as a teacher who is appointed on probation for up to two years and it further specifies that the probationary period may
be extended by the competent authority by a further period of one year. It is also specified in the said clause that during probationary period if the
work is not found to be satisfactory, the service of a teacher could be terminated with a notice of one month and if no decision is taken within a total
period of three years, such teacher would be deemed to be confirmed as a permanent teacher. But since Ordinance No.122 specifically applies under
clause 3 only to teachers employed by respondent No.5ÂUniversity, it clearly does not apply to the teachers like the petitioner appointed in affiliated
colleges, who are specifically governed by Ordinance No.24 of the said University.
There is no dispute about the fact that the college run by respondent No.2ÂManagement is affiliated to respondent No.5Â University and that
therefore it is governed by Ordinance No.24 and Statute 53 of the said University. In fact, clauseÂ6 of the appointment order dated 26/07/2006 issued
by respondent No.2Â Management in favour of the petitioner specifically provides that the services of the petitioner will be governed by the Statutes
and Ordinances of the University. Therefore, the provisions of the said Ordinance and Statute will have to be applied while examining the contentions
raised on behalf of the petitioner. A perusal of clauseÂ2 of the agreement in ScheduleÂA of Ordinance No.24 of the University shows that the total
period of probation can in no case exceed two years. StatuteÂ53 also specifies that the period of probation shall be of two years and that when no
notice of confirmation or termination of service is given in one month prior to completion of the period of two years, it shall be construed that the
teacher has completed the period of probation satisfactorily and that she shall be deemed to be confirmed in service. ClauseÂ8 of the agreement in
ScheduleÂA of Ordinance No.24 specifies the grounds on which the service of a confirmed teacher can be terminated. The said grounds obviously
require an enquiry to be conducted before any decision of termination of service can be taken.
In the present case, admittedly the petitioner was appointed in the post of Lecturer in respondent No.3ÂCollege by respondent No.2Â‐
Management after proper process of selection by issuance of advertisement and conducting interviews. The said appointment was on probation and
therefore, it was governed by the Ordinance No.24 and StatuteÂ53 of respondent No.5Â University. Even though agreement as contemplated in
Schedule A of Ordinance No.24 was not actually executed between the petitioner and respondent Nos.2 and 3, as per the law laid down by the Full
Bench of this court in the case of Premlata Sudhakar Sathe v. Governing Body of G.S.Tompe College and others (supra), the terms specified in the
said agreement in ScheduleÂA to Ordinance No.24 would squarely apply to the case of the petitioner. Apart from this, StatuteÂ53 would also apply,
thereby showing that the period of probation would in no case exceed the period of two years and upon completion of the said period of two years the
services of the petitioner were deemed to be confirmed. StatuteÂ53 of the University also provides under clauseÂ5 that the termination of services of
any teacher shall take place only in accordance with the provisions of Ordinance No.24 and the contract appended thereto. Therefore, upon the
services of the petitioner being confirmed by operation of Ordinance No.24 and StatuteÂ53 of respondent No.5ÂUniversity, her services could have
been terminated only on the grounds specified in clauseÂ8 of the said agreement in ScheduleÂA of Ordinance No.24, which would obviously require
a proper enquiry to be conducted against the petitioner. Therefore, the services of the petitioner could not have been terminated by respondent No.2Â‐
Management by issuing the order of termination of services dated 31/07/2009, in absence of any enquiry or notice to the petitioner.
Respondent Nos.2 and 3 have heavily relied upon the appointment order dated 26/07/2006, particularly clauses 1, 4 and 10 of the same, to contend
that when the petitioner had accepted her appointment as Lecturer under the said clauses, she was not entitled to turn around and say that her
services stood confirmed upon completion of two years of probation. The said clauses provide that the period of probation could be extended beyond
two years and that there shall not be any deemed confirmation and further that the confirmation would have to be by a separate order of confirmation.
It was contended on behalf of the said respondents that a letter dated 30/07/2008 had been issued to the petitioner just before completion of the period
of probation of two years, whereby the probation period was extended for a period of one year and that having found that the petitioner despite
opportunity had failed to improve her performance and conduct, her services were terminated by order dated 31/07/2009. It was contended that
respondent No.2Â Management was well within its rights to extend the probation and to terminate the services of the petitioner in terms of the
aforesaid clauses of the appointment order dated 26/07/2006.
The aforesaid contentions raised on behalf of respondent Nos.2 and 3 proceed on the basis that the appointment order would prevail upon
Ordinance No.24 and StatuteÂ53 of respondent No.5ÂUniversity. This basic premise on which respondent Nos.2 and 3 have raised the said
contentions is flawed and therefore, the same cannot be accepted. As noted by the Full Bench of this court in the case of Premlata Sudhakar Sathe v.
Governing Body of G.S.Tompe College and others (supra) in paragraph No.6 quoted above, Ordinance No.24 (College Code) was framed to protect
teachers from unscrupulous Managements terminating their services and making appointments at their whims. It is also noted therein that an
unscrupulous employer cannot be permitted to take advantage of his own wrong. The same applies to StatuteÂ53 of the University which is
specifically framed for teachers appointed in affiliated colleges. The said Ordinance and Statute have been framed to suppress mischief by
Managements and to protect teachers and their services. This makes it abundantly clear that respondent No.2ÂManagement in the present case
cannot be allowed to rely upon clauses 1, 4 and 10 of the appointment order dated 26/07/2006 to contend that the appointment order would prevail
over the Ordinance and the Statute of respondent No.5ÂUniversity. Apart from this, clauseÂ6 of the very same appointment order specifically
provides that the services of the petitioner would be governed by, inter alia, Statutes and Ordinances of the University. Thus, it becomes clear that the
appointment order, insofar as clauses 1, 4 and 10 of the same are concerned, cannot prevail over the Ordinance and the Statute of the University and
respondent Nos.2 and 3 cannot seek to justify their actions by ignoring the said Ordinance and Statute.
Accordingly, the contentions raised on behalf of the said respondents in this context are rejected and it is held that Ordinance No.24 and Statute
No.53 of the University apply to the case of the petitioner. As a result, in the facts of the present case, the services of the petitioner stood deemed
confirmed on completion of probation of two years and her services could not have been terminated on grounds other than those specified in
Ordinance No.24 and clauseÂ8 of the agreement at ScheduleÂA. The petitioner could not have been treated as being a teacher on probation after
completion of two years of service from the date of the appointment order and consequently the impugned order of termination of services dated
31/07/2009 issued by respondent No.2ÂManagement is rendered unsustainable.
The Tribunal completely failed to appreciate the true scope and purport of the said Ordinance and Statute of respondent No.5ÂUniversity and it
erroneously placed emphasis only on certain clauses of the appointment order to deny relief to the petitioner. Therefore, the impugned order of the
Tribunal is also rendered unsustainable.
Once it is held that the services of the petitioner stood deemed confirmed upon completion of probation of two years, the question as to whether
the impugned order of termination of services dated 31/07/2009 was stigmatic or not becomes academic in nature. Consequently, there would be no
necessity for this Court to go into the said question and, therefore, reference is not being made to various judgments relied upon by the parties to show
either that the said order of termination of service was stigmatic or that it was not stigmatic in nature.
Since the impugned judgment and order passed by the Tribunal is found to be unsustainable and it is liable to be set aside, as also the order of
termination of services dated 31/07/2009 is also liable to be set aside, the next question for determination pertains to the nature of relief to which the
petitioner is entitled.
Upon the order of termination of service being set aside, grant of reinstatement follows but the contentious issue remains regarding entitlement of
other benefits including grant of back wages. In the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others,
reported in (2013) 10 SCC 324, upon analysis of the law pertaining to grant of back wages, the Hon'ble Supreme Court has culled out propositions
pertaining to the said issue. The relevant portion of the said judgment reads as follows:Â
“38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2. …..
38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at
least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on
lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the
employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is
so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its
existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed,
the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially
similar emoluments.
38.4. ….....
38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the
principles of natural justice or is guilty of victimizing the employee or workman, then the concerned court or tribunal will be fully justified in directing
payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere
with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the
employee/workman to get full back wages or the employer’s obligation to pay the same. The Courts must always be kept in view that in the cases
of wrongful/ illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give a
premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of
litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is
the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an
employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given
to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position visÂÃ Âvis the
employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can
illÂafford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course
suggested in Hindustan Tin Works (P) Ltd. v. Employees.â€
Applying the said position of law to the facts of the present case, it will have to be examined whether the petitioner has pleaded or at least made a
statement that she was not gainfully employed during the pendency of the litigation.
A perusal of the writ petition shows that the petitioner has stated in paragraph No.18 as follows:Â
“18. It is submitted, after termination of services of the petitioner, she remained unemployed and was not gainfully employed anywhere. In view of
this, the petitioner needs to be reinstated in service with full backwages and continuity in service.â€
In the submissions filed on behalf of respondent Nos.2 and 3, the said statement made by the petitioner has not been controverted. In the above
quoted judgment, it has been laid down that it was for employers like respondent Nos.2 and 3 to plead and also to lead cogent evidence to prove that
an employee like the petitioner was gainfully employed. No such material is placed on record by respondent Nos.2 and 3 in the present case.
Therefore, it is clear that the petitioner is entitled to grant of full back wages.
The above discussion shows that all the six issues identified for determination in the present petition deserve to be answered in favour of the
petitioner, with the only exception of any finding on the question of the order of termination of service dated 31/07/2009 being stigmatic or not, as the
same has been rendered academic in the light of findings on other issues.
In the light of the above, the present writ petition is allowed in the following terms.
(1) The impugned judgment and order dated 08/12/2004 passed by the Tribunal is quashed and set aside.
(2) The order of termination of service dated 31/07/2009 passed by respondent No.2 against the petitioner is quashed and set aside.
(3) Respondent Nos.2 and 3 are directed to reinstate the petitioner in the post of Lecturer in respondent No.3Â College, with all consequential benefits
including continuity of service and full back wages.
(4) Respondent Nos.2 and 3 shall reinstate the petitioner forthwith and they are granted time period of eight weeks to pay the amount of full back
wages to the petitioner.