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Judgment
A.B. Chaudhari, J.
1 Heard. Rule. Rule returnable forthwith.Heard finally by consent of the learned Counsel for the rival parties. By the present petition, the petitioner hasput to challenge the judgment and order dated28.2.2011, passed by the Presiding Officer, University and College Tribunal, Nagpur in Appeal No. N-4/2006, by which the appeal was returned to the appellant forpresentation to the proper forum, upon holding theappeal to be not maintainable u/s 59 of theMaharashtra Universities Act, 1994, against the orderof retirement from service of the petitioner, shebeing declared invalid by the Medical Board.
In support of the writ petition, AdvocateShri Sundaram for the petitioner vehemently arguedthat Section 59 of the Maharashtra Universities Act,1994 provides for appeal for challenging even the''otherwise termination'', besides dismissal, removal or reduction in rank. According to him, the petitionerwas finally served with an order dated 21.2.2007 thatshe was found to be permanently incapacitated forfurther service as declared by the Medical Board andtherefore, was retired on medical ground w.e.f.1.2.2006. Since the petitioner is not entitled toserve further the employer, the relationship betweenmaster and servant is snapped since the relationshiphas been brought to an end by the said order ofretirement. It is nothing but otherwise terminationand therefore, the Tribunal erred in law in holdingotherwise. He, therefore, prayed for setting aside theimpugned judgment and order.
Per contra, Advocate Shri Kulkarni forrespondent nos.1 to 3 opposed the writ petition andargued that the impugned judgment and order is legal,proper and correct and need not be interfered with.According to Advocate Shri Kulkarni, the order made bythe Tribunal is based on the earlier Supreme Courtjudgments, in which it is held that despite compulsoryretirement, the retired employee is entitled topension etc. and therefore, the order of compulsory retirement cannot fall in the category of ''otherwise termination
I have perused the impugned judgment and order. I have heard learned Counsel for the rivalparties. I have perused the decisions cited before meand which have been considered in the impugnedjudgment and order. The Tribunal has recorded acategorical finding that despite the order ofcompulsory retirement of the petitioner, who wasdeclared invalid by Medical Board, she would beentitled to pension etc. and therefore, in the lightof the Supreme Court decision in the case of Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), andother decisions, such order would not fall in thecategory of ''otherwise termination''. Having consideredthe entire matter, at the outset, I find that theSupreme Court decisions, which have been relied uponby the Tribunal including the one in the case of Shyamlal...Versus...State of Uttar Pradesh andanother, cited supra, were on interpretation ofArticle 311 of the Constitution of India. Article 311 of the Constitution of India reads thus;
Article 311. Dismissal, removalor reduction in rank of persons employed incivil capacities under the Union or aState.-(1) No person who is a member of acivil service of the Union or an all-Indiaservice or a civil service of a State orholds a civil post under the Union or aState shall be dismissed or removed by anauthority subordinate to that by which hewas appointed.
(2) No such person as aforesaid shallbe dismissed or removed or reduced in rankexcept after an inquiry in which he hasbeen informed of the charges against himand given a reasonable opportunity of beingheard in respect of those charges.
Provided that where it is proposedafter such inquiry, to impose upon him anysuch penalty, such penalty may be imposedon the basis of the evidence adduced duringsuch inquiry and it shall not be necessaryto give such person any opportunity ofmaking representation on the penaltyproposed: Provided further that this clause shall not apply-
(a) where a person is dismissed orremoved or reduced in rank on the ground ofconduct which has led to his conviction ona criminal charge; or
(b) where the authority empowered todismiss or remove a person or to reduce himin rank is satisfied that for some reason,to be recorded by that authority inwriting, it is not reasonably practicableto hold such inquiry; or
(c) where the President or theGovernor, as the case may be, is satisfiedthat in the interest of the security ofthe State it is not expedient to hold suchinquiry.
(3) If, in respect of any such personas aforesaid, a question arises whether it is reasonably practicable to hold suchinquiry as is referred to in clause (2),the decision thereon of the authorityempowered to dismiss or remove such personor to reduce him in rank shall be final.
Two things are clear from the reading of theabove provision in the Constitution of India. Firstly,that it relates only to the Government servants andsecondly, it speaks only of dismissal and removal fromservice. To repeat, the words ''otherwise termination''are not to be found in the aforesaid Article 311 ofthe Constitution of India. Further the petitionercannot be held to be Government servant. The issuewhether compulsory retirement amounts to dismissal orremoval from service with reference to Article 311 ofthe Constitution of India was the question decided bythe Supreme Court in those cases. No decision has beencited to show that compulsory retirement resultinginto payment of pension etc. would not fall within themeaning of term ''otherwise termination''. A Division Bench of this Court in the case of Shriram Swami Shikshan Sanstha...Versus...Education Officer, Zilla Parishad, Nagpur and another, reported in 1984, Mh.L.J. 31, in paragraph No. 5 thereof held that forcedrecognition would fall in the category of ''otherwisetermination'' within the meaning of Section 9 of theMaharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. I quote paragraph No. 5 of the said judgment.
We have, therefore, toconsider the question whether the employeecan move the Tribunal u/s 9 ofthe Act in the case of an alleged forcedresignation. The language used insection 9 of the Act covers not onlydismissal and removal but all forms oftermination of service. On behalf of thepetitioner, a decision of the KarnatakaHigh Court in M/s Southern Roadways Ltd.,Bangalore v. Padmanabhan and another arising under the provisions of theIndustrial Disputes Act, 1947, is reliedupon to show that the phraseology orotherwise terminates the services coversthe case of forced resignation and,therefore, a reference u/s 2-Aread with section 10 of the Act ismaintainable in the case of a forcedresignation. We feel that it is a wellsettled proposition of law that a forcedresignation, which means a resignation notvoluntarily given by the employee but isbrought about by force, duress or in anyother manner by the employer is by the actof the employer. In substance the contract of service comes to an end in such case bythe action on the part of the employer.It, therefore, amounts to termination ofservice by the employer. In the decisionof the Karnataka High Court (cited supra),the Court was considering the phraseology otherwise terminates the services usedin section 2A of the Industrial DisputesAct, 1947. A similar phraseology is usedin section 9 (1) of the Act. We are inagreement with the view taken by theKarnataka High Court in the decision citedsupra. We are supported in this view alsoby an old decision by the AdditionalJudicial Commissioner in Abraham Reuben v.The Karachi Municipality, which has reliedupon an English decision in Stephenson v.London Joint Stock Bank Ltd.. We,therefore, hold that the phraseology
whose services are otherwise terminated used in section 9 (1) of the Act coverscases of forced resignation and,therefore, in such matters, an employeecan move the Tribunal u/s 9 (1) of the Act.
In the service jurisprudence, termination is a concept which crystallizes into snapping of relationship of master and servant. The term''otherwise termination'' will have to be looked intofrom that angle. In the case of compulsory retirementby way of punishment or without punishment definitelythere is a snapping of relationship of master andservant as in the case of forced resignation. Whetheror not such a person gets pension due to the nature ofcompulsory retirement that is without punishment wouldnot make any difference for bringing the same into thefold of term ''otherwise termination''. The principle,namely ubi jus ibi remedium is squarely attracted inthe case at hand. The intention of the legislature ininserting the words ''otherwise termination'' byproviding appeal u/s 59 of the MaharashtraUniversities Act, 1994, is obviously to provide aforum, namely appellate forum, when an employee isaggrieved by the predatory action of the Management insnapping the relationship of master and servant bytaking resort to the order of compulsory retirementwith or without punishment. Thus, it would not belegal and proper to deny a special forum created bythe Legislature, namely appellate forum under the Maharashtra Universities Act, 1994 for hearinggrievances of such employees, who can file appealunder Section 59 of the Maharashtra Universities act,1994. To give narrow meaning to the words ''otherwisetermination'' is to deny important appellate forum andto make the said part of the provision nugatory. Thedecisions in the case of Shyamlal...Versus...State ofUttar Pradesh and another, cited supra and others arethus clearly distinguishable for the two reasons whichI have already set out above. In the result, I findthat the order made by the University and CollegeTribunal, Nagpur is not according to law andtherefore, this petition must succeed. In the result,I make the following order.
O R D E R
(i) Writ Petition No. 1866/2011 is partly allowed.
(ii) The judgment and order dated 28.2.2011, passed by the Presiding Officer, Universityand College Tribunal, Nagpur in Appeal No. N-4/2006 isquashed and set aside.
(iii) Appeal No. N-4/2006 is restoredback to the file of University and College Tribunal,Nagpur for fresh hearing and disposal in accordancewith law.
(iv) The University and CollegeTribunal, Nagpur shall decide the appeal expeditiouslyand in any case within a period of six months from thedate of receipt of writ from this Court.
Rule is made absolute in the above terms.
No order as to costs.