M.P. Madhyamik Shikshak Sangh, Indore and another vs State of M.P. and others

N.K. Mody, J.

Being aggrieved by the order dated 19-8-1988 (Annexure-P-9), whereby the petitioner''s services were terminated and the order dated 27-11-1997 (Annexure-P-20), whereby the order of termination was confirmed, the present petition has been filed.

Short facts of the case are that petitioner was appointed as Lecturer in Chemistry on 20th of August, 1983 on a consolidated salary of Rs. 1500/- in a pay scale of Rs. 110-50-1400-EB-75-1625 and was confirmed in the year of 1988. On 10-8-1988, a show cause notice was issued to the petitioner and the charges which were levelled in the show cause notice were denied by the petitioner. Vide order dated 19-8-1988 (Annexure-P-9), the services of the petitioner were terminated. Against which the appeal was filed which was also dismissed on 25-10-1988, against which the writ petition was filed bearing registration No. 462/89 which was also disposed of vide order dated 2-9-1997, directing the appellate authority to reconsider the appeal dated 29-8-1988 after giving an opportunity of hearing to the petitioner. The appeal was again dismissed vide order dated 27-11-1997 (Annexure-P-20) whereby the order of termination (Annexure-P-9) dated 19-8-1988 was confirmed. Aggrieved by the order of termination and also the order passed in appeal the present petition has been filed.

Learned counsel for the petitioner submits that at no point of time any enquiry was held, therefore the order is ab initio illegal and deserves to be set aside as the order of termination is against the principles of natural Justice. Learned counsel for the petitioner further submits that in spite of the order of this Court in W. P. No. 462/89, the appellate authority dismissed the appeal assuming that all the charges levelled against the appellant are proved. Learned counsel for the respondents submit that since the petitioner has already attained the age of superannuation, therefore, the petition has become infructuous. Learned counsel for the respondents No. 2 and 3 Shri R. C. Chhazed submits that even if it is found that there was a violation of principle of natural justice then since the petitioner has retired, therefore, at the most he can be compensated in terms of money. For this contention learned counsel has placed reliance on a decision reported in Bhupinder Pal Singh Vs. Director General of Civil Aviation and Others, of Civil Aviation and others, wherein the Hon''ble Apex Court has held in the normal course fresh inquiry would have been directed but since the appellant has superannuated the order dated 21-7-1999 is set-aside and the position of Check-Pilot is restored to him. An amount of Rs. 25,000/- shall be paid as compensation and cost quantified at Rs. 10,000/- has also to be paid to the appellant by respondent No. 2.

Learned counsel for the petitioner submits that it is a second round of litigation, when the petitioner is approaching this Court. In the earlier round of litigation vide order dated 2-9-1997 in M. P. No. 462/1989 this Court quashed the order of appellate authority and directed to reconsider the appeal but in spite of that the respondents No. 2 and 3 did not follow the principle of natural justice. It was further submitted that even on account of attaining the age of superannuation the petition has not become infructuous as the petitioner was entitled to continue in service up to the age of superannuation.

Shri B. C. Jain, learned counsel for the petitioner placed reliance on a decision reported in Union of India (UOI) Vs. Madhusudan Prasad, , wherein the Hon''ble Apex Court has observed that,

It is true that when a reinstatement is ordered in appeal or review, the authorities can pass specific order regarding the pay and allowances to be paid to the government servant for the period of his absence from duty preceding the dismissal, removal or compulsory retirement, as the case may be in view of Fundamental Rule 54. In the instant case, the Appellate Authority directed reinstatement of the respondent and held that he was not entitled to get backwages for the period he was out of service. But the respondent was removed from service without any enquiry and he was not even given a show-cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principle of natural justice. Therefore, Fundamental Rule 54 cannot be invoked by the authorities to deny him backwages from the date of dismissal to reinstatement.

In the present case without holding any enquiry, after receiving the reply of show cause notice, petitioner was terminated from service. The procedure adopted by the respondents No. 2 and 3 is unknown to law. Further unfair part of the case is that in first round of litigation when this Court set-aside the order of appellate authority and remanded the matter then to the authorities did not bother to realize the mistake. In the circumstances the order of termination dated 19-8-1988 is set-aside and the position of Lecturer is restored to him. Looking to the facts of the case, the respondents are directed to pay backwages which shall be calculated on the basis of his last drawn salary.

Cost of this petition is quantified Rs. 3000, which shall be paid by the respondents.