1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4359/2006
1. Santoshi Mahila Mandal,
Chandrapur, through its Secretary.
2. Amar Shahid Veer Bhagat Singh
Hindi Primary School, Chandrapur,
through Head Master
ig PETITIONERS
...VERSUS...
1. Presiding Officer,
Additional School Tribunal (Nagpur)
Chandrapur.
2. Ku. Vatsala Atmaram Sakharkar,
C/o. Vithoba Atmaram Borikar,
Near Veterinary Hospital ,
Nagina Bagh, Chandrapur.
3. Education Officer (Primary),
Zilla Parishad, Chandrapur. RESPONDENTS
--------------------------------------------------------------------------------------------------
Shri . A.S.Chandurkar, Advocate with Shri M.P.Khajanchi, Advocate, for
Petitioners.
Shri Bhushan Mohta, Advocate, h/f Shri Anand Parchure, Advocate, for
Respondent No. 2
--------------------------------------------------------------------------------------------------
::: Downloaded on - 09/06/2013 17:26:06 :::
2
CORAM: R. K. DESHPANDE, J.
st
DATE : 1 JULY, 2011
ORAL JUDGMENT
1] This writ petition is preferred by the employer
challenging the judgment and order dated 13th July, 2006,
passed in Appeal No. STC/15/94 by the Additional School
Tribunal (Nagpur), Chandrapur. The appeal filed by the
respondent employee challenging her termination from
service as Assistant Teacher w.e.f. 3.12.1993 has been
allowed. The termination has been set aside, the
management has been directed to reinstate the respondent-
employee on the post of Assistant Teacher in its School
namely Veer Bhagat Singh School with continuity in service
and full backwages.
2] This matter was before this Court in earlier
round of litigation in Writ Petition No. 15/2002, decided on
27th August, 2002. After considering the rival submissions
made by the parties, this Court framed following points for
::: Downloaded on – 09/06/2013 17:26:06 :::
3
determination by the School Tribunal,
a] Whether the petitioner has worked in the
respondent-school. If yes for what period and
in what capacity?
b] At which point of time the services of the
petitioner were terminated and whether the
termination of the petitioner is in accordance
with law?
c] Whether the petitioner has herself abandoned
the services. If yes, on what date?
In para 9 of the said judgment, it has been
observed that the School Tribunal shall take into
consideration the fact that the respondent school has already
been closed.
3] After remand of the matter, the School Tribunal
has decided the said appeal afresh by its judgment and order
dated 13th July, 2006. In respect of the Point No. [a] framed
above, the answer is that the respondent employee was
working in the School since 1.1.1979 to 3.12.1993 as
permanent Assistant Teacher. So far as point No. [c] above is
concerned, it has been held that the petitioner employer has
::: Downloaded on – 09/06/2013 17:26:06 :::
4
failed to establish that the respondent employee has
abandoned the services. In respect of Point No.[b] above, it
has been held that the respondent employee was wrongfully
terminated from service w.e.f. 3.12.1993. On the aspect of
question of reinstatement, the tribunal has recorded the
finding that the English Medium School was closed down
from the Academic Sessions 1995-96, however, Hindi
Medium School was functioning. It was further held that no
permission as required by the provisions of Rules was
obtained for closing down the English Medium School and
the procedure for that purpose laid down under the Rules has
not been followed. It was further observed that even in
respect of closure of the school, the procedure as laid down
by Rule 25-A is required to be followed and the principle of
“last come, first go” is also required to be observed. In view
of the fact that Hindi Medium School was functioning and
the fact that the provisions as aforestated were not complied
with, the respondent employee was granted reinstatement
and continuity in service.
::: Downloaded on – 09/06/2013 17:26:06 :::
5
4] So far as the question of backwages is
concerned, the tribunal has recorded the finding that there is
nothing on record to show that the respondent employee
after her termination from service was doing some job.
Hence, denial of backwages will cause undue hardship to the
respondent employee.
5]
The finding of the School Tribunal that the
respondent employee was working in the school since
1.1.1979 to 3.12.1993 as permanent Assistant Teacher is
based upon certificate dated 4.4.1988 issued by the President
of the Society, which is countersigned by the Eduction Officer
and the another certificate dated 3.12.1993 issued by the
Vice President of the Society. It has been held that on both
these dates the concerned office bearers were holding the
office. The certificates indicated that the respondent
employee was in service from the year 1979 till 1993. The
reliance was also placed upon the seniority list of the staff
working in the school, prepared for the Sessions 1992-93,
::: Downloaded on – 09/06/2013 17:26:06 :::
6
which was signed by the incharge Headmistress, showing the
name of the respondent at Sr.No.1. Thus, the finding is
based upon the relevant evidence available on record.
Sufficiency or insufficiency of the evidence in support of the
finding cannot be the subject matter of judicial scrutiny
under Article 226 and 227 of the Constitution of India.
Hence, no fault can be found with such finding recorded by
the School Tribunal.
6] Shri Chandurkar, with Shri Khajanchi, the
learned counsels appearing for the petitioner have urged that
the certificate dated 3.12.1993 shows that the petitioner was
working as Headmistress from 1.4.1979 to 1.9.1993, whereas
the case of the respondent employee herself is that from
1.1.1979 to 1.7.1980, she was working as an Assistant
Teacher and thereafter she was promoted as Headmistress,
where she was working till 1993. In respect of certificate
dated 4.4.1988, it is urged that the said certificate indicate
that the respondent employee is working from 1979 to 1988
::: Downloaded on – 09/06/2013 17:26:06 :::
7
as Teacher in English and Hindi Primary School at
Chandrapur. It is, therefore, urged that there is inconsistency
in between the certificates produced on record and also the
stand of the respondent-employee. The same, therefore,
could not have been relied upon for recording the findings.
The reliance is also placed upon the affidavit dated 16th
January, 2003 filed by one Smt. Vatsala Dattatray Dhotarkar,
Ex-Vice President of the Society, whose signature is alleged to
be on the certificate dated 3.12.1993. Inviting my attention
to para 3 of the said affidavit, it is urged that such certificate
was not issued and it was a bogus and forged document. In
view of this, the submission is that, the School Tribunal could
not have relied upon such certificate.
7] It is not possible to accept the aforesaid
contention urged by the learned counsel appearing for the
petitioner. The question is whether the respondent employee
was in service from 1.9.1979 to 3.12.1993 as an Assistant
Teacher. Whether she was working as Assistant Teacher or as
::: Downloaded on – 09/06/2013 17:26:06 :::
8
incharge Headmistress is altogether different question. It is
significant to note that in para 2 of the affidavit of Smt.
Vatsala Dhotarkar, it has been clearly mentioned that the
respondent employee has abandoned the service as she had
stopped coming to the school from 3rd December, 1993. It is
thus apparent that the fact that the respondent employee was
working in the school from 1979 to 3rd December, 1993 is
impliedly accepted. It was not the case of the petitioner
before the tribunal that the respondent employee has been
removed from service on the ground of any misconduct or on
the ground that she has forged and fabricated the documents.
Hence, the stand taken in the affidavit of Smt. Vatsalabai
Dhotarkar appears to be clearly an after thought. At any
rate, the view taken by the tribunal is based upon the
material available on record and is a possible view in the
facts and circumstances of the case. Hence, it does not call
for interference.
8] It is also the contention of the learned counsel
::: Downloaded on – 09/06/2013 17:26:06 :::
9
appearing for the petitioner that the tribunal ought to have
framed an issue as to whether the respondent employee has
established that her appointment was in accordance with
Section 5 of the Rules framed under the M.E.P.S. Act. It is
urged that in the light of the decision of the Division Bench of
this Court reported in 2007 (6) Mh.L.J. 667; Priyadarshini
Education Trust and others vrs. Ratis (Rafia) Bano Abdul
Rasheed and others and 2008(4) Mh.L.J. 159; President,
Late Shri Ramchandra Patil Shikshan Sanstha and ors vrs.
Haiderali Mahmadhanif Inamdar and another, such issue is
required to be framed irrespective of the pleadings of the
parties. According to the petitioners, the appointment of the
respondent/employee itself was not in accordance with
Section 5 of the Rules. The appointment of the respondent
employee was purely temporary, on year to year basis and
she had, therefore, no right of continuation on the post.
9] Such argument cannot be accepted for the
reason that in the earlier round of litigation, this Court has
::: Downloaded on – 09/06/2013 17:26:06 :::
10
specifically framed the points for determination, which the
tribunal was bound to answer. This court after hearing the
parties, crystallized the controversy into the points for
determination. At that time no such question was raised as to
whether the appointment of the employee was in accordance
with Section 5 of the Rules framed thereunder. Hence, there
was no direction from this court to the Tribunal to decide any
such question. Even before the tribunal, it does not seem
that any such point was raised. In view of this, the tribunal
was not expected to decide any such point irrespective of the
pleadings of the parties. This is the view taken by this Court
which is reported in 2011 (4) Mh.L.J. 312; Manohar vrs.
P.O. School Tribunal.
10] The burden to establish whether the respondent
employee has abandoned the services is certainly upon the
petitioner employer. Once it is held that the respondent
employee was working as permanent Assistant Teacher, it is
for the petitioner management to point out as to what steps it
::: Downloaded on – 09/06/2013 17:26:06 :::
11
had taken, if the respondent employee had abandoned the
services. Though there is some reference that the respondent
employee has abandoned the services w.e.f. 18.10.1993,
there was not even a single communication issued to the
respondent-employee till filing of an appeal on 12.1.1994,
alleging that she was absent from duty. At any rate, if any
such communication was issued, the same was not placed on
record of the tribunal. The reference was made to two letters
dated 31.1.1994 and 14.2.1994 by which the respondent
employee was asked to join the duties. Both these
communications were issued subsequent to filing of an
appeal by the respondent employee. The issuance of the two
communications is nothing but an after thought to built up a
case of abandonment of service. The tribunal has taken into
consideration both these communications in paras 14 and 16
of the judgment and it has been held that the respondent
employee was never allowed to join the duties after
2.12.1993. Hence, no fault can be found with the decision of
the tribunal on point No. [c].
::: Downloaded on – 09/06/2013 17:26:06 :::
12
11] On the question of legality of the termination, it
has been held that it was a case of refusal to permit the
respondent employee to sign the muster roll, which was a
case of oral termination from service. The services of
permanent employee can not be terminated except in
accordance with the provisions under M.E.P.S. Rules.
Undisputedly, termination is not in accordance with M.E.P.S.
Rules. The same is held to be invalid. No fault can be found
with such finding.
12] On the question of closure of the school, finding
is recorded that Hindi Medium School was still functioning
and closure of the English Medium School was not by
following the appropriate procedure. The certificate dated
4.4.1988 produced on record shows that the respondent
employee was working as teacher to teach English and Hindi
Primary School from 1979 to 1988. If the petitioner
employer wanted to terminate the services of the respondent
employee on the ground that the English Medium School was
::: Downloaded on – 09/06/2013 17:26:06 :::
13
closed down and hence no work was available for
continuation of the respondent employee in service, then it
was open for the petitioner management to pass such an
order in accordance with the provisions of M.E.P.S. Act and
Rules. Undisputedly, this has not been done in the present
case. If the permanent employee is retrenched from service
on account of closure of the school then he is entitled to
certain benefits under the Rules. In such situation he is also
entitled to get the regular salary till his absorption in some
other school. The tribunal has taken into consideration the
aspect of closure of the school and has directed the
reinstatement and continuation in service.
13] Keeping in view all these aforesaid aspects, no
fault can be found with the view taken by the tribunal while
setting aside the termination, directing the reinstatement and
continuation in service.
14] So far as question of backwages is concerned,
::: Downloaded on – 09/06/2013 17:26:06 :::
14
the aspect has been dealt with in the judgment of the School
Tribunal. However, it has been held that the management has
not brought any evidence on record to show that during the
period after termination, the respondent employee doing
some job. The burden is shifted upon the management. In
view of the decisions of this Court reported in 2009 (2)
Mh.L.J 182; Principal, Daund Taluka Arts and Commerce
College vrs. Macchindra Sahebrao Bhavar and another,
and the decision of the Apex Court reported in (2005) 2 SCC
363; Kendriya Vidyalaya Sangathan and another vrs. S.C.
Sharma, the initial burden lies upon the employee. In view
of this, the order of payment of backwages passed by the
tribunal cannot be sustained and the matter will have to be
sent back to the tribunal to decide the question of backwages
afresh.
15] In the result, the petition is partly allowed. The
judgment and order passed by the School Tribunal on 13th
July, 2006, in Appeal No. STC./15/94 is hereby quashed and
::: Downloaded on – 09/06/2013 17:26:06 :::
15
set aside only to the extent it awards full backwages to the
respondent employee upon his reinstatement in service.
Hence, Clauses (4) and (5) of the said order are hereby
quashed and set aside. The matter is remitted back to the
School tribunal for enquiry into the question of payment of
backwages in accordance with law. The tribunal shall decide
the matter within a period of three months from the date of
receipt of the writ from this Court. It is made clear that the
tribunal shall not reopen the other issues decided by this
Court.
Rule is made absolute in these terms, no orders as to
costs.
16] The learned counsel for the parties have
informed that in view of the order passed by this Court, the
petitioner has deposited an amount of Rs.1,50,000/- in this
court on 28/06/2007. The amount is kept in fixed deposit.
In view of the aforesaid decision, the office is directed to
transfer this amount to the School Tribunal along with
::: Downloaded on – 09/06/2013 17:26:06 :::
16
interest accrued thereon. The School Tribunal shall pass
appropriate orders in respect of the said amount in
accordance with its ultimate decision.
17] None of the observations made in this judgment
shall come in the way of the petitioner to take appropriate
action in the matter in accordance with the provisions of
M.E.P.S. Act and the Rules, if it is permissible.
JUDGE
Rvjalit
::: Downloaded on – 09/06/2013 17:26:06 :::
