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Smt. Nirmala Gehlot Vs. the Director of Primary and Secondary Education and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 485 of 1976
Judge
Reported in1982WLN195
AppellantSmt. Nirmala Gehlot
RespondentThe Director of Primary and Secondary Education and ors.
DispositionPetition dismissed
Cases ReferredS.S. Shetty v. Bharat Nidhi Ltd. (supra) and
Excerpt:
.....service would automatically come to an end on june 30, 1970, upto which the petitioner's service was extended.;writ dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a..........of service. this would mean, if the above observations are applied to the present case, that the effect of reinstatement is only this that the petitioner would continu to remain in service upto june 30, 1970, and not beyond that.13. similarly in d.g. venkataramu and ors. v. managing director, pandavapura sahakare sakkare ltd. pandavnpura and anr. (supra), in para 8 the court observed that the effect of re-instatement by quashing unlawful termination is as if the retrenchment had not taken place at all and to give them all the benefits flowing therefrom, and the effect would be that the period of enforced non-employment must be equated to period spent on duty.14. in the motipur sugar factory (private) ltd. v. rikhdeo prasad and anr. (supra) the court was concerned with the use of.....
Judgment:

M.C. Jain, J.

1. This writ petition raises a question as to the construction of the order passed by this Court in a previous writ petition filed by the petitioner No. 41 of 1971 - Smt. Nirmala Gehlot v. Director of Primary & Secondary Education and Ors. decided on February 20, 1975. The order in that writ petition was passed in the following terms,:

In the result, the writ petition is allowed. The orders passed by the Deputy Director (Female) Education Department, Jodhpur, dated May 15, 1970 (Ex.2) and May 27, 1970 (Ex.3) are quashed and the petitioner is also entitled to be reinstated on her post with effect from the date of the illegal termination of her services, i e. from May 15, 1970. The order for the petitioner's reinstatement with effect from May 15, 1970, has become necessary because the temporary services of the petitioner were extended by the order dated January 16, 1970 upto June 30, 1970 and she was entitled to continue on her post till such time. In the circumstances of the case, the petitioner is also entitled to her costs from the respondents.

2. I may briefly state some material facts giving rise to that writ petition and thereafter giving rise to the present writ petition. The petitioner was a trained graduate and was employed temporarily for a period of six months as a second grade trained teacher by the order of the Deputy Director (Female). Education Department, Jodhpur, dated July 19, 1968, and was posted as Headmistress of the Upper Primary Girls' School at Khejarla. The period of temporary employment of the petitioner was subsequently extended upto June 30, 1970, but before that date her service were terminated by an order dated May 15, 1970, passed by the Deputy Director (Female), Education Department, Jodhpur. A subsequent order was also passed on May 27, 1970, whereby the Deputy Director (Female) refused to allow the petitioner the requisite copies and further added that the services of the petitioner were terminated under Rule 23-A of the Rajasthan Service Rules with effect from May 15, 1970.

3. The petitioner challenged both the orders in the aforesaid writ petition. This Court found that the order of termination was not an order simpliciter, but it was an order by way of punishment and is violative of Article 311(2) of the Constitution and, therefore, both the orders were declared void and of to effect and consequently both the orders were quashed and the order extracted above was passed.

4. After passing of the aforesaid order by this Court, the Deputy Director of Education (W) passed the following order on 5-3-1975 (Ex.4):

In view of Rajasthan High Court judgment dated 20-2-75 in S.B. Civil Writ petition 541/1971 quashing this office order No. 10807 to 10 dated 15-5-70 Smt. Nirmala Gehlot Ex. Headmistress, Government Girls Upper Primary School, Samdari district Barmer is hereby re-instated with effect from 16-5-70. Her service will be deemed to have terminated automatically with effect from 1-7-1970 in terms of this office order No. 1221 to 1550 dated 16-1-70 under which the services of Smt. Nirmala Gehlot were extended up to 30-6-70 only in the grade of 160-360.Sd.

Dy. Director of Education (W)

J.B. Range, Jodhpur.

5. The petitioner now seeks to challenge the above order and prays that the order Ex.4 be quashed and a mandamus be issued commanding the opposite parties to reinstate the petitioner.

6. A counter to the writ petition has been filed in which it has been stated that the petitioner was given a fixed term extension upto June 30. 1970. The petitioner has no right to remain in service after that date and this Court too has declared that the petitioner is entitled to continue on her post till June 30, 1970. In pursuance of the order of this Court, the petitioner is not entitled to continue in service after June 30, 1970 and that is not the spirit, purport and intent of the order.

7. I have heard Shri J.P. Joshi, learned Counsel for the petitioner, sad Shri R. Balia, learned Deputy Government Advocate, for the non-petitioners.

8. Shri J. P. Joshi, learned Counsel for the petitioner, with all emphasis at his command, urged that this Court by its order Ex. 3 dated February 20, 1975, passed in the earlier writ petition, has ordered reinstatement of the petitioner and the reinstatement would mean that even on the date of the order and thereafter the petitioner continues to be in service, also the Court would not have passed an order for the petitioner's reinstatement. The Court would have simply ordered for payment of back emoluments and all other service benefits upto June 30, 1970. Instead of passing such an order the Court clearly, specifically and categorically has ordered that the petitioner is also entitled to be reinstated on her post with effect from the date of the illegal termination of her services, i.e from May 15, 1970. In view of this order of the Court, the petitioner's services could not have been terminated by the Deputy Director (W) vide Ex. 4, so the order Ex. 4 is had and is liable to be quashed and the petitioner is entitled to be-reinstated, la support of his contention, reliance has been placed by Shri Joshi on S.S. Shetty v. Bharat Nidhi Ltd. A.I.R. 1958 S.C. 2, D.G. Venkataramu and Ors. v. Managing Director, Pandavapura Sahakera Sakkare Karkhane Ltd., Pandavapura and Anr. 1970 Lab I.C. 45 : A.I.R. 1970 Mysore 1, The Motipur Sugar Factory (Private) Ltd. v. Rikhdeo Prasad and Anr. 1976 Lab, I.C. 335, Rakeshwar Dayal v. Labour Court, Kanpur and Ors. 1962 (1) L.L.J. 5, Krishna Gopal v. The Municipal Board, Phalodi and Ors. ILR. (1977) 27 Rajasthan 728) and Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and Ors. 1962 (1) L.L.J. 267.

9. Reference has also been made by Mr. Joshi to Mitra's Legal and Commercial Dictionary, Vol. II, Second Edition 1976, wherein at page 593 the word 'Reinstate' has been commented as under:

REINSTATE. To place in the same position as before; to restore to the previous position or state.

Reinstatement involves putting the specified person back, in law and in fact, in the same position as he occupied in the undertaking before the employer terminated his employment. Modge v. Ultra Electric Ltd. (1943)1 KB 462. To reinstate a man is to replace him in the position from which he was dismissed and so to restore the status quo ante the dismissal. William Dixon Ltd. v. Patterson 1943 SC (J) 78.

10. It is to be seen as to whether the arguments advanced by Shri Joshi have at all any validity or at all tenable in the light of the order passed by this Court in the earlier writ petition. Much emphasis has been placed by Shri Joshi on the frame of the order of this Court. He submitted that this part of the order of this Court is not an operative part of the order wherein the Court has stated that 'the order for the petitioner's reinstatement with effect from May 15, 1970 has become necessary because the temporary service of the petitioner were extended by the order dated January 16, 1970 upto June 30, 1970 and she was entitled to continue on her post till such time.' I am unable to agree with the contention of Shri Joshi that the above portion of the order is not a part of the operative part of the order. The order has to be read as a whole. On reading of the order as a whole it is quite manifest, explicit and unequivocal that the learned Judge reinstated the petitioner from May 15, 1970, the date of illegal termination, till such date upto which the petitioner was entitled to continue in service, that is, June 30, 1970. The petitioner's tenure of service was extended by the authority appointing her only up to June 30, 1970. This Court has tot extended and could not extend the time beyond June 30, 1970. If the spirit, intent and purport of the order would have been to allow the petitioner to continue to hold the post even after June 30, 1970, the learned Judge would not have said that the petitioner was entitled to continue on her post till such time, that is, June 3Q, 1970. Rather would have made it clear that the petitioner would continue to hold the post even beyond June 30, 1970. The use of the word 're-instated' or re-instatement' in the order cannot be construed to mean that the petitioner has been allowed to continue to hold the post even after the expiry of the period of her tenure of service. The petitioner's tenure of service was fixed one and in view of that term, reinstatement was ordered only up to that particular term. It may be stated that when an order of termination of services, whether by way of dismissal, removal, discharge or otherwise, is quashed and set aside, the reinstat-ment is automatic and it will be taken that such an order was never passed and status quo ante will be restored. Meaning thereby that such a person continues to be governed by the existing terms and conditions of service as were in force on the date when his services were illegally terminated, which in the instant case would mean that it will be taken as if no order of termination was passed on May 15, 1970, and if no order would be considered to have passed, then the petitioner's services would automatically come to an end on June 30, 1970, upto which the petitioner's service was extended. In this view of the matter the Deputy Director of Education (w) was justified in passing an order that the petitioner's services will be deemed to have been terminated automatically with effect from 1.7.1970 in terms of the order dated 16.1.1970 under which the services of the petitioner were extended upto June 30, 1970 only.

11. The cases, which have been cited by Mr. Joshi, in my opinion, do not in any way help him for the proposition, which has been advanced by him. Not a single case has been cited by Shri Joshi wherein a situation like the present one may have been considered. Mr. Joshi, particularly referred to the decision of this Court in Krishna Gopal v. The Municipal Board, Phalodi and Ors. (supra) in which the petitioner attained the age of superannuation before passing the order in that case. In that case the order was passed on May 9, 1977, and the petitioner attained the age of superannuation on August 31, 1974. The same learned Judge observed that it is not necessary to pass any order regarding the re-instatement of the petitioner and the learned Judge, however, ordered that the petitioner would be entitled to his emoluments and all other service benefits for the period between December 16, 1972 and August 31, 1974, when the petitioner should have normally retired by superannuation. It is true that in that case instead of passing an order of reinstatement, the learned Judge ordered for entitlement of emoluments and all other service benefits. In this case as well relief could have been couched in similar terms, but this does not mean that the Court by use of the expression 're-instatement' intended to extend the period of service.

12. In S.S. Shetty v. Bharat Nidhi Ltd., (supra) it was observed as under:

The effect of an order of reinstatement is merely to set at nought the order of wrongful dismissal of the workman by the employer and to reinstate him in the service of the employer as if the contract of employment originally entered into had been continuing.

The terms and conditions of the contract which obtained when the workman was in the employ of the employer prior to his wrongful dismissal which has been set aside continue to govern the relations between the parties and the workman continues in the employ of the employer under those terms and conditions. There is no variation of those terms and conditions of the contract. The only thing which happens is that the workman is reinstated in his old service as before.

The above observations of their Lordships of the Supreme Court instead of helping the petitioner, help the said opposite. What has been observed by their Lordships of the Supreme Court Court is that status quo ante is restored as if no order of termination was passed and the service would continue to be governed by the same terms and conditions of the contract of service. This would mean, if the above observations are applied to the present case, that the effect of reinstatement is only this that the petitioner would continu to remain in service upto June 30, 1970, and not beyond that.

13. Similarly in D.G. Venkataramu and Ors. v. Managing Director, Pandavapura Sahakare Sakkare Ltd. Pandavnpura and Anr. (supra), in para 8 the Court observed that the effect of re-instatement by quashing unlawful termination is as if the retrenchment had not taken place at all and to give them all the benefits flowing therefrom, and the effect would be that the period of enforced non-employment must be equated to period spent on duty.

14. In the Motipur Sugar Factory (Private) Ltd. v. Rikhdeo Prasad and Anr. (supra) the court was concerned with the use of expression 'reinstatement'' in the statute, that is, Section 26 of the Bihar Shops and Establishments Act and their Lordships distinguished the decision of S.S. Dhawan, J., in Rakeshwar Dayal v. Labour Court, Kanpur and Ors. (supra). Their Lordships extracted the passage from that decision. In that passage it was made clear by S.S. Dhawan, J., that the tribunal used the word 'reinstatement' in the sense of partial reinstatement and the word 'reinstatement used by the tribunal is qualified by the condition that he was to get fifty percent of the wages for the interim period. In para 19 B.D. Singh, J., referred to a decision of the Supreme Court in S.S. Shetty v. Bharat Nidhi Ltd. (supra) and observed that the effect of an order of reinstatement was merely to set at naught the order of wrongful dismissal of the workman by the employer and to reinstate him in the service of the employer as if the contract of employment originally entered into had been continuing. In the light of these observations in that decision, that part of the order of the Presiding Officer wherein he ordered that awarding half of the wages for the idle period after passing of the order of reinstatement, was not sustained.

15. I need not discuss the other two cases, as it would unnecessarily lengthen the judgment, though Rakeshwar Dayal's case (supra) has been considered above.

16. In the light of foregoing discussion I find no merit in the present writ petition and it deserves to be dismissed.

17. In the result, the writ petition is hereby dismissed with no order as to costs.


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