GAJANAN M MATHKA Vs. STATE OF GOA

JUDGEMENT

(1.) THE petitioner was appointed as an Assistant Teacher on probation by the respondent No. 3 in Shri Vasant Vidyalaya English High School, Siolim, Bardez Goa as per the Letter of Appointment dated 15th January, 1987. While he was continuing as such in the academic year 1987-88 there was reduction in the staff strength and, consequently, the petitioner was retrenched from services. The petitioner approaches this Court in this petition with a prayer for reinstatement and other consequential benefits, quashing the order of retrenchment.

(2.) HEARD counsel for the petitioner and also for the respondents.

(3.) THE counsel for the respondents 3 to 5 Shri Thali raised a preliminary objection that the petitioner has an alternative remedy by way of appeal before the Administrative Tribunal and so long as he has not availed of that remedy any relief from this Court by way of writ cannot be granted. He brought to our notice section 22 of the Goa, Daman and Diu School Education Act, 1984 read with Rule 83 of the Goa ,daman and Diu School Education Rules, 1986. Going by these provisions Shri Thali, counsel for the respondents 3 to 5, submits that there is an effective and alternative remedy available to the petitioner. Shri DSouza, counsel for the petitioner, of course, disputes this position and argues that Rule 83 speaks about termination of a probationer consequent upon disciplinary proceedings whereas in the present case it was a termination on account of the petitioner being a surplus hand which would come under Rule 34 of the Rules. To counter the argument of the petitioner, Shri Thali, counsel for respondents 3 to 5, brought out a decision of the Division Bench of this Court in (Franciscan Sisters of St. Mary and another v. The Administrative Tribunal for Goa, Daman and Diu) reported in 1988 (4) Bom. C. R. 198. In that case the Division Bench of this Court had examined whether termination of probationer will come under section 11 read with Rule 83 and whether an appeal will lie to the Administrative Tribunal. The Court observed in paragraph 4 that the Act read with the Rules is a complete Code in itself. The expression used in section 22 (e), namely "dismissing, removing from service" is of wider amplitude. It takes in its import all the cases of dismissal as well as termination of service. It is well-settled that the relationship of master and servant is created by a bilateral act. Contract of service is continuing in nature and the obligation under the said contract is terminable by following certain defined modes. It is equally well-settled that mere use of polite language instead of peremptory one will not alter the fact. The words dismissal, termination or removal as used in sections 11 and 22 are the key words. Termination or removal embraces not merely an act of termination or removal by the employer, but the fact of termination, however produced. With these observation this Court has categorically stated that the termination whatsoever will attract section 11 read with Rule 83. Therefore the preliminary objection raised by the counsel for the respondents 3 to 5 is sustainable. The counsel for the petitioner has then contended that at this distance of time merely because there was an alternative remedy, which was not availed of by the petitioner, this Court may not decline to exercise its jurisdiction under Article 226. It is true that there is considerable force in the submission, but we fail to see what relief can be granted to the petitioner.