Allowed

Yogesh Balkrishna Gethe v. Shri Sai Baba Sansthan Vishwastha Vyavastha, Shirdi

Bombay HC12 Sept 2018WP/11832/2014

Case brief

AI extract

What is this about?

This writ petition challenges the termination of a permanent ENT Surgeon service. The High Court held that a permanent employee cannot be removed without a full departmental inquiry, especially in cases of stigmatic termination. The Court quashed the termination order but did not grant back wages due to lack of proof of unemployment.

What did the court decide?

The impugned order terminating the petitioner's services is quashed and set aside. The petitioner is entitled to continuity in service but not back wages.

Yogesh Balkrishna Gethe Vs Shri Sai Baba Sansthan… — Service and Employment | Bombay HC (2018)

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1 wp 11832.14

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 11832 OF 2014

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Yogesh Balkrishna Gethe,
Age: 34 Years, Occu.: Nil,
R/o.: Sai Chintan, B3/03,
Sai Nagar, Shirdi,
Taluka – Rahata,
District – Ahmednagar

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.. Petitioner

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Versus

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Shri Sai Baba Sansthan Vishwastha
Vyavastha, Shirdi, Taluka – Rahata,
District – Ahmedngar,
Through its Chief Executive Officer

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.. Respondent

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Mr. Parag Vijay Barde, Advocate for the
Petitioner.

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Mr. Nitin R. Bhavar, Advocate for Respondent /
Sole.

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CORAM: S. V. GANGAPURWALA & S. M. GAVHANE, JJ. DATE: 12th September, 2018

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ORAL JUDGMENT (Per: S. V. Gangapurwala, J.):

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1. Rule. Rule returnable forthwith. With the

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consent of learned counsel for respective parties

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matter is taken up for final hearing.

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2. The petitioner was appointed as E.N.T.

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2 wp 11832.14

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Surgeon by the respondent under appointment order
dated 05.08.2008. The petitioner was granted
permanency on 01.04.2010.

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3.Mr. Barde, learned counsel for the petitioner

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submits that the preliminary inquiry was
conducted. In the said preliminary inquiry it was
suggested that the serious charges are alleged
against the petitioner and upon conducting the
inquiry action be taken against him. On the basis
of the said report show cause notice was issued to
the petitioner. The petitioner thereafter was
terminated from service under order dated
04.12.2010. Initially the petitioner assailed the
said order by filing Complaint [ULP] No. 74 of
2010 before the Labour Court. However it was
withdrawn, as the petitioner is not a Workman. The
same is assailed in the present writ petition.

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4.Mr. Barde, the learned Advocate for the
petitioner submits that the petitioner was a
permanent employee of the respondent. A permanent

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3 wp 11832.14

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employee cannot be removed without conducting
departmental inquiry. Only preliminary inquiry
was conducted. On the basis of preliminary
inquiry the show cause notice is issued and the
petitioner is terminated. The learned Advocate
submits that such a procedure is not countenance
in law. The learned Advocate to substantiate his
contention relies on the judgment of the Apex
Court in a case of Champaklal Chimanlal Shah Vs.
The Union of India reported in AIR 1964 Supreme
Court 1854and another judgment of the Apex Court
in a case of Ratnesh Kumar Choudhary Vs. Indira

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Gandhi Institute of Medical Sciences, Patna, Bihar
and others reported in 2015 ALL SCR 3681.

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5. Mr. Barde, the learned counsel further

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submits that the petitioner may be granted back
wages and continuity in service.

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6.Mr. Bhavar, learned Advocate for the
respondent submits that the petitioner was
appointed initially on contractual basis under

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4 wp 11832.14

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appointment order dated 05.08.2008. Clause No. 9
of the appointment order permitted the respondent
to terminate the services of the petitioner any
time with one month's notice or on payment of one
month's salary in lieu thereof. The petitioner was
made permanent and all the terms and conditions of
the initial order of appointment dated 05.08.2008

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were made applicable. In view of that, the
respondent had right to terminate the services of

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the petitioner without inquiry. The learned
Advocate submits that even otherwise the
preliminary inquiry was conducted and the decision
was taken. Show cause notice was issued to the
petitioner. Opportunity was given to the
petitioner to file his say and thereafter the
decision has been taken. The petitioner did not
participate or cooperate in the preliminary
inquiry.

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7. We have considered the submissions canvassed

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by the learned counsel for respective parties.

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5 wp 11832.14

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8.The fact that the petitioner is advanced

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permanency by the respondent on 01.04.2010 is not
disputed. The petitioner was appointed after
following selection process as an E.N.T. Surgeon
by the respondent. It is also not disputed that no
departmental inquiry has been conducted against
the petitioner. A preliminary inquiry was
initiated and after conducting preliminary
inquiry straightway show cause notice was issued
to the petitioner as to why the petitioner should
not be terminated from service, and subsequently
the petitioner is terminated.

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9.A permanent employee cannot be removed
without conducting departmental inquiry, more
particularly, when it is a case of stigmatic
termination. The preliminary inquiry is only a
fact finding inquiry to enable the disciplinary
authority to conclude that a disciplinary inquiry
is required to be initiated against the employee.

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The report of the preliminary inquiry cannot be
considered at the time of departmental inquiry.

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6 wp 11832.14

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The preliminary inquiry and the report therein
would not have any legal status qua taking penal
action against the employee.

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10.Clause No. 9 relied by the respondent in the
appointment order to the effect that the services
of the petitioner may be terminated any time with
one month's notice or on payment of one month's
salary in lieu thereof would not apply to the case
of stigmatic termination. The termination is
stigmatic termination.

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11.There is nothing on record to show that at
the relevant time the petitioner was not gainfully
employed elsewhere. In view of that, we are not
inclined to grant back wages, however, the
petitioner would be entitled for continuity in
service.

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12.The respondent – employer, if it so chooses,

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is entitled to initiate proceedings including
departmental proceedings as may be permissible in
law.

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7 wp 11832.14 13. In the light of above, the impugned order terminating the services of the petitioner is quashed and set aside. With the aforesaid observations, Rule is made absolute in terms of prayer clause 'A'.

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[S. M. GAVHANE, J.] [S. V. GANGAPURWALA, J.]

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marathe

Yogesh Balkrishna Gethe v. Shri Sai Baba Sansthan Vishwastha Vyavastha, Shirdi

Case brief

What is this about?

What did the court decide?

Yogesh Balkrishna Gethe v. Shri Sai Baba Sansthan Vishwastha Vyavastha, Shirdi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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