Employee's Conduct Of Filing Petitions Does Not Show Abandonment Of Claim For Reinstatement: Bombay High Court

Background Facts

The Shri. Patil Samgonda Namgonda (Petitioner) was appointed headmaster by the School management (Respondent) on 19th June 1991. In the year 2001, the order dated 6th October 2001 informed him that he had been removed from the post of headmaster (reduced in rank). Hence, the employee filed first Appeal before the school tribunal.

After the employee was reduced in rank, he attended the school on 9th October 2001. The employee was allowed to work in the school, however he was not allowed to sign the muster. Hence the employee filed second appeal before the School Tribunal challenging the subsequent termination dated 9th October 2001.

In the second appeal, the employer management contended that the order dated 6th October 2001 was not an order of reduction in rank, but it was an order of termination of services of the employee. Hence, in view of the contention of the management, the employee withdrew the earlier two appeals and filed a third appeal for challenging the order dated 6th October 2001 as an order of termination. The management objected that the third appeal was barred in view of Order XXIII Rule 1 of Code of Civil Procedure, 1908 (CPC).

Order XXIII Rule 1 states that after the institution of a suit, the plaintiff may abandon his suit with the leave of the court. Where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit, it may grant the plaintiff permission to withdraw, with liberty to institute a fresh suit in respect of the subject-matter of such suit. And where the plaintiff abandons any suit without permission from the court, he shall be prevented from instituting any fresh suit in respect of such subject-matter.

Whereas the School Tribunal held that though the employee had withdrawn the two earlier appeals, it cannot be said that the third appeal was on the same cause of action. Hence, the appeal was not barred under Order XXIII Rule 1 of CPC.

The third appeal was heard on merits, and by Judgment dated 29th November 2008, the School Tribunal allowed the appeal. The tribunal declared the order of termination dated 6th October 2001 as illegal, as the petitioner was a permanent employee of respondent and thus set aside the termination order. The Tribunal further directed the management to reinstate the employee in service as headmaster with full back wages.

Aggrieved by the tribunal's decision, the management filed Writ Petition in Bombay High Court. The petition was partly allowed and the matter was remanded back to the School Tribunal for a fresh decision. The tribunal found that the third appeal was barred under order 23 Rule 1 CPC. It held that the employee was not entitled for his reinstatement in the service as Head Master. So the third appeal was dismissed. Aggrieved by the same, employee filed the writ petition.

The employee contended that he was illegally terminated by the order of termination dated 6th October 2001 as he was a permanent employee of respondent institution. He submitted that the subject matter of the first appeal was an order dated 6th October 2001 as a reduction in rank. The subject matter of the second appeal was subsequent termination of the petitioner on 9th October 2001. Whereas the subject matter of the third appeal was the termination order dated 6th October 2001 in view of the stand taken by the management in the second appeal.

The employee, thus, by referring to the earlier two appeals, contended that the subject matter of the third appeal was different than the subject matter of the earlier two appeals. Hence, unconditional withdrawal of the earlier two appeals would not be a bar for filing the third appeal under Order XXIII Rule 1 of CPC.

The employer submitted that in view of clause(b) of sub-rule (4) of Rule 1 of Order XXIII of CPC, once the employee withdrew his claim without permission as referred to in sub-rule (3), he was barred from instituting any fresh claim in respect of the same subject matter. The employer contended that the employee unconditionally withdrew both the earlier appeals. Hence, it amounts to an abandonment of the earlier two appeals. The employer further contended that after abandonment of the relief, the employee was debarred from claiming similar relief by filing third appeal.

Findings of the Court

The court observed that abandonment is a principle of equity. Every right, including the right to prefer an appeal, can be abandoned. The court held that the conduct of the employee showed that he never intended to abandon his claim. He took immediate steps at every stage to save his job. Thus it cannot be said that the employee abandoned his claim. The court held that the dismissal of the employee's appeal on the ground that it was barred under Order XXIII Rule 1 of CPC was an error in law.

The court relied on the case of Dani Wooltex Corporation and others vs. Shell Properties Pvt. Ltd. And Another, wherein the Supreme Court held that in case of implied abandonment, proved facts are so convincing that the only inference which can be drawn is of the abandonment. Mere absence in proceedings or failure to participate does not, per se, amount to abandonment.

The court referred to the Tribunal's finding that the employee was illegally terminated as he was a permanent employee of respondent. Hence, the court held termination to be illegal. The court further observed that only in view of appeal being barred under Order XXIII Rule 1 of CPC, the employee was not granted relief of reinstatement in services.

The court relied on the case of Deepali Gundu Surwase Vs Kranti Junior Adhyapak Mahavidyalaya, wherein the Supreme Court held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

The court found that the employee was removed from service abruptly without any opportunity of any representation. The court held the conduct of employer to be in breach of principles of natural justice due to unchallenged findings in favour of employee by the tribunal on illegal termination.

The court allowed the third appeal. The judgment and order dated 24th March 2009 passed by the School Tribunal in third appeal was quashed and set aside. The order dated 6th October 2001 passed by the employer was quashed, and the employee was held entitled to reinstatement in service to his original post of headmaster with full back wages.

With these observations, the writ petition was allowed.

Case No. : Writ Petition No. 4754 OF 2009

Citation: 2024 LiveLaw (Bom) 308

Case Name : Shri. Patil Samgonda Namgonda vs. State of Maharashtra

Counsel for the Petitioner : Kuldeep Nikam, Prerana K. Nikam & Om N. Latpate

Counsel for the Respondents : Nilesh Desai & M. S. Bane AGP