Judgment 1 wp2692.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2692 OF 2015
1. Dinkar Gramin Sanstha,
Dinkar Nagar, Jamani,
Post Akoli, Tahsil : Selu,
District : Wardha.
PTR No.94/98(W), through its
Secretary, Ashokrao Kubde,
R/o. Cintamani Nagri,
Mahada Colony, Post:Manasmandir,
Wardha.
2. Incharge Head Master,
Dinkar Vidyalaya, Dinkar Nagar,
Jamani, Post : Aakoli, Tah.: Selu,
District : Wardha.
.... PETITIONERS.
// VERSUS //
1. Ku. Nirjala Bhayaji Wadalkar,
Aged about : 34 years,
Occupation : Service,
R/o. C/o. Dr. M.T. Shelke,
Sundar Nagar, Arvi Naka,
Post : Manas Mandir, Wardha.
2. Education Officer (Secondary),
Zilla Parishad, Wardha.
.... RESPONDENTS
.
___________________________________________________________________
Shri A.D. Mohgaonkar, Advocate for Petitioners.
Shri N.R.Saboo, Advocate for Respondent No.1.
Ms Sangeeta Jachak, A.G.P. for Respondent No.2.
___________________________________________________________________
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Judgment 2 wp2692.15.odt
CORAM : Z.A.HAQ, J.
DATED : JANUARY 30, 2018.
ORAL JUDGMENT :
1. Heard.
2. RULE. Rule made returnable forthwith.
3. The petitioners (employer) have challenged the order passed by the School Tribunal by which the appeal filed by the respondent No.1- employee under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as "the Act of 1977") is allowed. The Tribunal has set aside the otherwise termination of service of the respondent No.1/ employee and has directed the management to reinstate her with continuity of service and to pay the back wages.
4. The petitioner No.1-management was granted permission by the Deputy Director of Education to start school with 8 th Standard from the academic session 2002-2003. Subsequently, permission was granted on year to year basis with natural growth of the school. The respondent No.1/ employee claims that she was appointed as Assistant Teacher for Mathematics subject, after applications were invited, interviews were conducted and she ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:29:49 ::: Judgment 3 wp2692.15.odt was found suitable for the post. According to the respondent No.1-employee she joined her duties on 20th December, 2004 and she was continued in every subsequent academic session till 9th January, 2012 when she was restrained from performing her duties. Treating this as otherwise termination, the respondent No.1 filed appeal before the School Tribunal. The management opposed the claim of the respondent No.1/ employee on various grounds, the substantial ground being that the respondent No.1 was not appointed after following procedure as per Section 5 of the Act of 1977. The Tribunal considered the rival contentions and by the impugned order found that the respondent No.1/ employee has succeeded in proving that she was in continuous employment from 30th November, 2004 till 9th January, 2012.
5. The learned advocate for the petitioners has submitted that the respondent No.1-employee was never given any appointment order on regular basis and she was intermittently engaged for teaching maths in the school. The advocate for the petitioners has submitted that the post of Assistant Teacher (Mathematics) was advertised in the news paper on 1 st June, 2012 and Sau. C.P. Chandekar was selected and appointed w.e.f. 1 st August, 2012 and the Education Officer granted approval to her appointment by the communication dated 8th May, 2013. The figure approval of the academic session 2012-13 is relied to point out that only one post of teacher for Mathematics subject was available in the school and Sau. C.P.Chandekar was working in that post. The advocate for the respondent No.1/employee ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:29:49 ::: Judgment 4 wp2692.15.odt has submitted that neither this defence was raised before the School Tribunal nor the documents on which the petitioners are now relying were placed on record before the School Tribunal, and therefore the petitioners cannot be permitted to plead new case before this Court. The submission made by the advocate for the respondent No.1-employee is required to be accepted. The petitioners have not given any explanation for not pleading the above facts and not filing the documents before the School Tribunal.
6. As far as contention of the petitioners that the appointment of the respondent No.1/employee was not made as per the procedure prescribed by Section 5 of the Act of 1977, I find that the School Tribunal has considered it exhaustively in paragraph Nos. 27 to 30 and has recorded its conclusions in paragraph 31 of the order passed by it. It cannot be said that the conclusions of the School Tribunal are perverse.
7. In the above facts, I see no reason to interfere with the order passed by the School Tribunal by which the otherwise termination of service of the respondent No.1-employee is quashed and the management is directed to reinstate the respondent No.1-employee as Assistant Teacher with continuity of service.
However, I find that the the school Tribunal has committed an error by directing the management to pay full back wages to the respondent No.1/employee. In paragraph No.32 of the impugned order, the School ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 00:29:49 ::: Judgment 5 wp2692.15.odt Tribunal has recorded that the employee has pleaded in her memo of appeal that she was not gainfully employed. The appeal was filed immediately after the respondent No.1-employee was restrained from performing her duties. The averment made in the memo of appeal that the employee was not gainfully employed will not be so relevant for upholding the claim of the employee for back wages. There is no explanation by the employee as to why she had not filed any affidavit subsequently at the time of hearing of the appeal, reiterating that she was not gainfully employed during the relevant period. The respondent No.1-employee has failed to discharge the burden of pleading that she was not gainfully employed from 09/01/2012 till hearing of the appeal.
In these facts, the directions given by the School Tribunal to the management to pay full back wages are set aside.
The impugned order stands modified accordingly.
8. The writ petition is partly allowed in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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