{"id":227428,"date":"2011-07-01T00:00:00","date_gmt":"2011-06-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/santoshi-mahila-mandal-vs-presiding-officer-on-1-july-2011"},"modified":"2017-09-18T23:14:37","modified_gmt":"2017-09-18T17:44:37","slug":"santoshi-mahila-mandal-vs-presiding-officer-on-1-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/santoshi-mahila-mandal-vs-presiding-officer-on-1-july-2011","title":{"rendered":"Santoshi Mahila Mandal vs Presiding Officer on 1 July, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Santoshi Mahila Mandal vs Presiding Officer on 1 July, 2011<\/div>\n
Bench: Ravi K. Deshpande<\/div>\n
                                                         1\n\n\n\n\n                                                                                      \n                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                              NAGPUR BENCH, NAGPUR\n\n\n\n\n                                                              \n                               WRIT PETITION NO. 4359\/2006\n\n\n\n\n                                                             \n     1.      Santoshi Mahila Mandal,\n             Chandrapur, through its Secretary.\n\n     2.      Amar Shahid Veer Bhagat Singh\n\n\n\n\n                                               \n             Hindi Primary School, Chandrapur,\n             through Head Master\n                            ig                                                  PETITIONERS\n\n\n                                      ...VERSUS...\n                          \n     1.      Presiding Officer,\n             Additional School Tribunal (Nagpur)\n      \n\n             Chandrapur.\n   \n\n\n\n     2.      Ku. Vatsala Atmaram Sakharkar,\n             C\/o. Vithoba Atmaram Borikar,\n             Near Veterinary Hospital ,\n             Nagina Bagh, Chandrapur.\n\n\n\n\n\n     3.      Education Officer (Primary),\n             Zilla Parishad, Chandrapur.                                RESPONDENTS\n\n     --------------------------------------------------------------------------------------------------\n\n\n\n\n\n     Shri . A.S.Chandurkar, Advocate with Shri M.P.Khajanchi, Advocate,  for \n     Petitioners.\n     Shri Bhushan Mohta, Advocate, h\/f Shri  Anand Parchure, Advocate, for \n     Respondent No. 2 \n     --------------------------------------------------------------------------------------------------\n\n\n\n\n                                                              ::: Downloaded on - 09\/06\/2013 17:26:06 :::\n                                                 2\n\n\n\n\n                                                                             \n              CORAM: R. K. DESHPANDE, J.\n<\/pre>\n
                           st
\n               DATE    : 1    JULY, 2011<\/p>\n
     ORAL JUDGMENT<\/p>\n
          1]            This  writ petition  is  preferred by the  employer <\/p>\n
          challenging  the   judgment  and  order  dated  13th  July,  2006, <\/p>\n
          passed in  Appeal No. STC\/15\/94 by the  Additional School <\/p>\n
          Tribunal   (Nagpur),   Chandrapur.   The   appeal   filed   by   the <\/p>\n
          respondent   employee   challenging   her   termination   from <\/p>\n
          service   as   Assistant   Teacher   w.e.f.   3.12.1993   has   been <\/p>\n
          allowed.   The   termination   has   been   set   aside,   the <\/p>\n
          management has been directed to reinstate the respondent-\n<\/p>\n
          employee   on   the   post   of   Assistant   Teacher   in   its   School <\/p>\n
          namely Veer Bhagat Singh School with continuity in service <\/p>\n
          and full backwages.\n<\/p>\n
          2]            This   matter   was   before   this   Court   in   earlier <\/p>\n
          round of litigation in Writ Petition No. 15\/2002, decided on <\/p>\n
          27th  August, 2002.   After  considering the  rival submissions <\/p>\n
          made by the parties, this Court framed following points for <\/p>\n
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\n                                            3<\/span><\/p>\n
     determination by the School Tribunal,<\/p>\n
           a]   Whether   the   petitioner   has   worked   in   the
\n                respondent-school. If yes for what period and
\n                in what capacity?\n<\/p>\n
           b]   At   which   point   of   time   the   services   of   the
\n                petitioner were terminated and whether the
\n                termination of the petitioner is in accordance
\n                with law?\n<\/p>\n
           c]   Whether the petitioner has herself abandoned
\n                the services. If yes, on what date?\n<\/p>\n
                   In   para   9   of   the   said   judgment,   it   has   been <\/p>\n
     observed   that   the   School   Tribunal   shall   take   into <\/p>\n
     consideration the fact that the respondent school has already <\/p>\n
     been closed.\n<\/p>\n
     3]            After remand of the matter, the School Tribunal <\/p>\n
     has decided the said appeal afresh by its judgment and order <\/p>\n
     dated 13th July, 2006.  In respect of the Point No. [a] framed <\/p>\n
     above,   the   answer   is   that   the   respondent   employee   was <\/p>\n
     working   in   the   School   since   1.1.1979   to   3.12.1993   as <\/p>\n
     permanent Assistant Teacher. So far as point No. [c] above is <\/p>\n
     concerned,  it has been held that the petitioner employer has <\/p>\n
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\n                                             4<\/span><\/p>\n
     failed   to   establish   that   the   respondent   employee   has <\/p>\n
     abandoned the services.  In respect of Point No.[b] above,  it <\/p>\n
     has been held that the respondent employee was wrongfully <\/p>\n
     terminated from service w.e.f. 3.12.1993.   On the aspect of <\/p>\n
     question   of   reinstatement,   the   tribunal   has   recorded   the <\/p>\n
     finding   that   the   English   Medium   School   was   closed   down <\/p>\n
     from   the   Academic   Sessions   1995-96,   however,   Hindi <\/p>\n
     Medium School was functioning.  It was further held that no <\/p>\n
     permission   as   required   by   the   provisions   of   Rules   was <\/p>\n
     obtained for closing down the English Medium School   and <\/p>\n
     the procedure for that purpose laid down under the Rules has <\/p>\n
     not   been   followed.     It   was   further   observed   that   even   in <\/p>\n
     respect of closure of the school, the procedure as laid down <\/p>\n
     by Rule 25-A is required to be followed and the principle of <\/p>\n
     “last come, first go” is also required to be observed.   In view <\/p>\n
     of the fact that Hindi Medium School was functioning and <\/p>\n
     the fact that the provisions as aforestated were not complied <\/p>\n
     with,   the   respondent   employee   was   granted   reinstatement <\/p>\n
     and continuity in service.\n<\/p>\n
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\n                                            5<\/span><\/p>\n
     4]            So   far   as   the   question   of   backwages   is <\/p>\n
     concerned, the tribunal has recorded the finding that there is <\/p>\n
     nothing   on   record   to   show   that   the   respondent   employee <\/p>\n
     after   her   termination   from   service   was   doing   some   job.\n<\/p>\n
     Hence, denial of backwages will cause undue hardship to the <\/p>\n
     respondent employee.\n<\/p>\n
     5]<\/p>\n
                   The   finding   of   the   School   Tribunal   that   the <\/p>\n
     respondent   employee   was   working   in   the   school   since <\/p>\n
     1.1.1979   to   3.12.1993   as   permanent   Assistant   Teacher   is <\/p>\n
     based upon certificate dated 4.4.1988 issued by the President <\/p>\n
     of the Society, which is countersigned by the Eduction Officer <\/p>\n
     and   the   another   certificate   dated   3.12.1993   issued   by   the <\/p>\n
     Vice President of the Society.   It has been held that on both <\/p>\n
     these   dates   the   concerned   office   bearers   were   holding   the <\/p>\n
     office.     The   certificates   indicated   that   the   respondent <\/p>\n
     employee was in service from the year 1979 till 1993.   The <\/p>\n
     reliance was also placed upon the seniority list of the staff <\/p>\n
     working   in   the   school,   prepared   for   the   Sessions   1992-93, <\/p>\n
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\n                                             6<\/span><\/p>\n
     which was signed by the incharge Headmistress, showing the <\/p>\n
     name   of   the   respondent   at   Sr.No.1.     Thus,   the   finding   is <\/p>\n
     based   upon   the   relevant   evidence   available   on   record.\n<\/p>\n
     Sufficiency or insufficiency of the evidence in support of the <\/p>\n
     finding   cannot   be   the   subject   matter   of   judicial   scrutiny <\/p>\n
     under   Article   226   and   227   of   the   Constitution   of   India.\n<\/p>\n
     Hence, no fault can be found with such finding recorded by <\/p>\n
     the School Tribunal.\n<\/p>\n
     6]             Shri   Chandurkar,   with   Shri   Khajanchi,   the <\/p>\n
     learned counsels appearing for the petitioner have urged that <\/p>\n
     the certificate dated 3.12.1993 shows that the petitioner was <\/p>\n
     working as Headmistress from 1.4.1979 to 1.9.1993, whereas <\/p>\n
     the   case   of   the   respondent   employee   herself   is   that   from <\/p>\n
     1.1.1979   to   1.7.1980,   she   was   working   as   an   Assistant <\/p>\n
     Teacher and thereafter she was promoted as Headmistress, <\/p>\n
     where  she  was working  till 1993.   In  respect of  certificate <\/p>\n
     dated 4.4.1988, it is urged that the said certificate indicate <\/p>\n
     that the respondent employee is working from 1979 to 1988 <\/p>\n
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\n                                             7<\/span><\/p>\n
     as   Teacher   in   English   and   Hindi   Primary   School   at <\/p>\n
     Chandrapur.  It is, therefore, urged that there is inconsistency <\/p>\n
     in between the certificates produced on record and also the <\/p>\n
     stand   of   the   respondent-employee.     The   same,   therefore, <\/p>\n
     could not have been relied upon for recording the findings.\n<\/p>\n
     The   reliance   is   also   placed   upon   the   affidavit   dated   16th <\/p>\n
     January, 2003 filed by one Smt. Vatsala Dattatray Dhotarkar, <\/p>\n
     Ex-Vice President of the Society, whose signature is alleged to <\/p>\n
     be on the certificate dated 3.12.1993.  Inviting my attention <\/p>\n
     to para 3 of the said affidavit, it is urged that such certificate <\/p>\n
     was not issued and it was a bogus and forged document.  In <\/p>\n
     view of this, the submission is that, the School Tribunal could <\/p>\n
     not have relied upon such certificate.\n<\/p>\n
     7]             It   is   not   possible   to   accept   the   aforesaid <\/p>\n
     contention  urged by the  learned counsel  appearing  for  the <\/p>\n
     petitioner.  The question is whether the respondent employee <\/p>\n
     was   in  service  from  1.9.1979 to  3.12.1993 as  an  Assistant <\/p>\n
     Teacher. Whether she was working as Assistant Teacher or as <\/p>\n
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\n                                                8<\/span><\/p>\n
     incharge Headmistress is altogether different question.   It is <\/p>\n
     significant   to   note   that   in   para   2   of   the   affidavit   of   Smt.\n<\/p>\n
     Vatsala   Dhotarkar,     it   has   been   clearly   mentioned   that   the <\/p>\n
     respondent employee has abandoned the service as she had <\/p>\n
     stopped coming to the school from 3rd December, 1993.  It is <\/p>\n
     thus apparent that the fact that the respondent employee was <\/p>\n
     working in the school from 1979 to 3rd  December, 1993   is <\/p>\n
     impliedly   accepted.     It   was   not   the   case   of   the   petitioner <\/p>\n
     before the tribunal that the respondent employee has been <\/p>\n
     removed from service on the ground of any misconduct or on <\/p>\n
     the ground that she has forged and fabricated the documents.\n<\/p>\n
     Hence,   the   stand   taken   in   the   affidavit   of   Smt.   Vatsalabai <\/p>\n
     Dhotarkar   appears   to   be   clearly   an   after   thought.     At   any <\/p>\n
     rate,   the   view   taken   by   the   tribunal   is   based   upon   the <\/p>\n
     material   available   on   record   and   is   a   possible   view   in   the <\/p>\n
     facts and circumstances of the case.   Hence, it does not call <\/p>\n
     for interference.\n<\/p>\n
     8]              It is also the contention of the learned counsel <\/p>\n
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\n                                          9<\/span><\/p>\n
     appearing for the petitioner that the tribunal ought to have <\/p>\n
     framed an issue as to whether the respondent employee has <\/p>\n
     established   that   her   appointment   was   in   accordance   with <\/p>\n
     Section 5 of the Rules framed under the M.E.P.S. Act.   It is <\/p>\n
     urged that in the light of the decision of the Division Bench of <\/p>\n
     this Court reported in  2007 (6) Mh.L.J. 667; Priyadarshini <\/p>\n
     Education Trust and others vrs.  Ratis (Rafia) Bano Abdul <\/p>\n
     Rasheed and others  and  2008(4) Mh.L.J. 159; President, <\/p>\n
     Late Shri Ramchandra Patil Shikshan Sanstha and ors vrs.\n<\/p>\n
     Haiderali Mahmadhanif Inamdar and another, such issue is <\/p>\n
     required to be framed   irrespective of the pleadings of the <\/p>\n
     parties.  According to the petitioners,  the appointment of the <\/p>\n
     respondent\/employee   itself   was   not   in   accordance   with <\/p>\n
     Section 5 of the Rules. The appointment of the respondent <\/p>\n
     employee was purely temporary, on year to year basis and <\/p>\n
     she had, therefore, no right of continuation on the post.\n<\/p>\n
     9]            Such   argument   cannot   be   accepted   for   the <\/p>\n
     reason that in the earlier round of litigation, this Court has <\/p>\n
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\n                                            10<\/span><\/p>\n
     specifically framed the  points  for  determination, which the <\/p>\n
     tribunal was bound to answer. This court after hearing the <\/p>\n
     parties,   crystallized   the   controversy   into   the   points   for <\/p>\n
     determination. At that time no such question was raised as to <\/p>\n
     whether the appointment of the employee was in accordance <\/p>\n
     with Section 5 of the Rules framed thereunder.  Hence, there <\/p>\n
     was no direction from this court to the Tribunal to decide any <\/p>\n
     such question.   Even before the tribunal, it does  not seem <\/p>\n
     that any such point was raised. In view of this, the tribunal <\/p>\n
     was not expected to decide any such point irrespective of the <\/p>\n
     pleadings of the parties.  This is the view taken by this Court <\/p>\n
     which is reported in  2011 (4)   Mh.L.J. 312; Manohar   vrs.\n<\/p>\n
     P.O. School Tribunal.\n<\/p>\n
     10]            The burden to establish whether the respondent <\/p>\n
     employee has abandoned the services is certainly upon the <\/p>\n
     petitioner   employer.     Once   it   is   held   that   the   respondent <\/p>\n
     employee was working as permanent Assistant Teacher,  it is <\/p>\n
     for the petitioner management to point out as to what steps it <\/p>\n
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\n                                            11<\/span><\/p>\n
     had taken, if the  respondent employee had abandoned the <\/p>\n
     services.  Though there is some reference that the respondent <\/p>\n
     employee   has   abandoned   the   services   w.e.f.   18.10.1993, <\/p>\n
     there   was   not   even   a   single   communication   issued   to   the <\/p>\n
     respondent-employee   till   filing   of   an   appeal   on   12.1.1994, <\/p>\n
     alleging that she was absent from duty.   At any rate, if any <\/p>\n
     such communication was issued, the same was not placed on <\/p>\n
     record of the tribunal.  The reference was made to two letters <\/p>\n
     dated   31.1.1994   and   14.2.1994   by   which   the   respondent <\/p>\n
     employee   was   asked   to   join   the   duties.     Both   these <\/p>\n
     communications   were   issued   subsequent   to   filing   of   an <\/p>\n
     appeal by the respondent employee.  The issuance of the two <\/p>\n
     communications is nothing but an after thought to built up a <\/p>\n
     case of abandonment of service.  The tribunal has taken into <\/p>\n
     consideration both these communications in paras 14 and 16 <\/p>\n
     of   the   judgment  and  it  has   been   held  that   the   respondent <\/p>\n
     employee   was   never   allowed   to   join   the   duties   after <\/p>\n
     2.12.1993.  Hence, no fault can be found with the decision of <\/p>\n
     the tribunal on point No. [c].\n<\/p>\n
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\n                                                12<\/span><\/p>\n
     11]             On the question of legality of the termination, it <\/p>\n
     has   been   held   that   it   was   a   case   of   refusal   to   permit   the <\/p>\n
     respondent  employee  to sign  the  muster  roll, which was a <\/p>\n
     case   of   oral   termination   from   service.     The   services   of <\/p>\n
     permanent   employee   can   not   be   terminated     except   in <\/p>\n
     accordance   with   the   provisions   under   M.E.P.S.   Rules.\n<\/p>\n
     Undisputedly, termination is not in accordance with M.E.P.S.\n<\/p>\n
     Rules.  The same is held to be invalid.  No fault can be found <\/p>\n
     with such finding.\n<\/p>\n
     12]             On the question of closure of the school, finding <\/p>\n
     is recorded that Hindi Medium School was still functioning <\/p>\n
     and   closure   of   the   English   Medium   School   was   not   by <\/p>\n
     following the appropriate procedure.   The certificate dated <\/p>\n
     4.4.1988   produced   on   record   shows   that   the   respondent <\/p>\n
     employee was working as teacher to teach English and Hindi <\/p>\n
     Primary   School   from   1979   to   1988.     If   the   petitioner <\/p>\n
     employer wanted to terminate the services of the respondent <\/p>\n
     employee on the ground that the English Medium School was <\/p>\n
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\n                                               13<\/span><\/p>\n
     closed   down   and   hence   no   work   was   available   for <\/p>\n
     continuation of the respondent employee in service, then it <\/p>\n
     was   open   for   the   petitioner   management   to   pass   such   an <\/p>\n
     order in accordance with the provisions of M.E.P.S. Act and <\/p>\n
     Rules.   Undisputedly, this has not been done in the present <\/p>\n
     case.  If the permanent employee is retrenched from service <\/p>\n
     on   account   of   closure   of   the   school   then   he   is   entitled   to <\/p>\n
     certain benefits under the Rules.  In such situation he is also <\/p>\n
     entitled to get the regular salary till his absorption in some <\/p>\n
     other school.   The tribunal has taken into consideration the <\/p>\n
     aspect   of   closure   of   the   school   and   has   directed   the <\/p>\n
     reinstatement and continuation in service.\n<\/p>\n
     13]             Keeping in view all these aforesaid aspects, no <\/p>\n
     fault can be found with the view taken by the tribunal while <\/p>\n
     setting aside the termination, directing the reinstatement and <\/p>\n
     continuation in service.\n<\/p>\n
     14]               So far as question of backwages is concerned, <\/p>\n
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\n                                             14<\/span><\/p>\n
     the aspect has been dealt with in the judgment of the School <\/p>\n
     Tribunal. However, it has been held that the management has <\/p>\n
     not brought any evidence on record to show that during the <\/p>\n
     period   after   termination,   the   respondent   employee   doing <\/p>\n
     some job.   The burden is shifted upon the management. In <\/p>\n
     view   of   the   decisions   of   this   Court   reported   in  2009   (2) <\/p>\n
     Mh.L.J 182; Principal, Daund Taluka Arts and Commerce <\/p>\n
     College     vrs.   Macchindra   Sahebrao   Bhavar   and   another, <\/p>\n
     and the decision of the Apex Court reported in (2005) 2 SCC <\/p>\n
     363; Kendriya Vidyalaya Sangathan and another vrs. S.C.\n<\/p>\n
     Sharma,  the initial burden lies upon the employee. In view <\/p>\n
     of   this,   the   order   of   payment   of   backwages   passed   by   the <\/p>\n
     tribunal cannot be sustained and the matter will have to be <\/p>\n
     sent back to the tribunal to  decide the question of backwages <\/p>\n
     afresh.\n<\/p>\n
     15]            In the result, the petition is partly allowed. The <\/p>\n
     judgment and order passed by the School Tribunal on 13th <\/p>\n
     July, 2006, in Appeal No. STC.\/15\/94 is hereby quashed and <\/p>\n
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\n                                               15<\/span><\/p>\n
     set aside only to the extent it awards full backwages to the <\/p>\n
     respondent   employee   upon   his   reinstatement   in   service.\n<\/p>\n
     Hence,   Clauses   (4)   and   (5)   of   the   said   order   are   hereby <\/p>\n
     quashed and set aside. The  matter  is remitted back to the <\/p>\n
     School tribunal for enquiry into the question of payment of <\/p>\n
     backwages in accordance with law. The tribunal shall decide <\/p>\n
     the matter within a period of three months from the date of <\/p>\n
     receipt of the writ from this Court. It is made clear that the <\/p>\n
     tribunal   shall   not   reopen   the   other   issues   decided   by   this <\/p>\n
     Court.\n<\/p>\n
               Rule is made absolute in these terms, no orders as to <\/p>\n
     costs.\n<\/p>\n
     16]             The   learned   counsel   for   the   parties   have <\/p>\n
     informed that in view of the order passed by this Court, the <\/p>\n
     petitioner has deposited an amount of Rs.1,50,000\/- in this <\/p>\n
     court on  28\/06\/2007.  The amount is kept in fixed deposit.\n<\/p>\n
     In   view   of   the   aforesaid   decision,   the   office   is   directed   to <\/p>\n
     transfer   this   amount   to   the   School   Tribunal   along   with <\/p>\n
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\n                                                      16<\/span><\/p>\n
               interest   accrued   thereon.   The   School   Tribunal   shall   pass <\/p>\n
               appropriate   orders   in   respect   of   the   said   amount   in <\/p>\n
               accordance with its ultimate decision.\n<\/p>\n
               17]            None of the observations made in this judgment <\/p>\n
               shall come in the way of the petitioner to take appropriate <\/p>\n
               action   in   the   matter   in   accordance   with   the   provisions   of <\/p>\n
               M.E.P.S. Act and the Rules, if it is permissible.\n<\/p>\n
                                                                    JUDGE<\/p>\n
     Rvjalit<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 17:26:06 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Santoshi Mahila Mandal vs Presiding Officer on 1 July, 2011 Bench: Ravi K. Deshpande 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-227428","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSantoshi Mahila Mandal vs Presiding Officer on 1 July, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/santoshi-mahila-mandal-vs-presiding-officer-on-1-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Santoshi Mahila Mandal vs Presiding Officer on 1 July, 2011 - 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