Shri Ekveera Devi Sanskrutik ... vs State Of Maharashtra And Anr.
2001 Latest Caselaw 797 Bom

JUDGMENT

Pratibha Upasani, J.

1. Heard Advocates for the parties. Rule. By consent, Rule is made returnable forthwith and taken up for final hearing.

2. The petitioner-management Shri Ekveera Devi Sanskrutik Mandal, Dhulia and another have approached this Court by way of filing this writ petition, being aggrieved by the judgment and order, dated 13-2-2001, passed by the Presiding Officer, School Tribunal, Nasik Region, Nasik, in Appeal No. DHL-36/96 which was filed by the appellant Nimba Kashinath Patil, respondent No. 2 herein, under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter, for the sake of brevity referred to as "the MEPS Act").

3. The factual matrix of the matter is as follows :

Respondent No. 2 Nimba Kashinath Patil was appointed by the petitioner-management in July, 1994 as a peon in Shri Ekveera Devi Sanskrutik Mandal, Dhulia. He worked there on the said post till 3-8-1996 and his performance was satisfactory. There were no complaints against him and he was never issued any memo. According to respondent No. 2, though he was appointed by the said management, he was not given any written appointment order and was also not allowed to sign the muster roll till November 1994. It is his case that the petitioner-management transferred him from their secondary school to the primary school with effect from 8-9-1995 but when on 3-8-1996 he went to attend his duties, the Headmaster of the secondary school did not allow him to work and informed him orally to return the uniform of the school. No written termination order was given to him, even though he asked for it. His services were thus orally terminated from 2-8-1996.

Respondent No. 2, therefore, filed appeal before the school Tribunal, with a prayer to set aside the said termination order, which according to him, was illegal, and for reinstatement along with benefit of full back wages and continuity in service.

Before the School Tribunal, the petitioner-management filed their say and denied all the allegations made by respondent No. 2. Their case was that the appellant (respondent No. 2 herein) was working with them from July, 1994 till 3-8-1996 as a peon, but from June, 1996 he was working as a peon in Balmandir, run by them, and that during his service period he removed some important documents from the office of the management and misused them. According to them, one Smt. Borse, Headmistress of the school, had some dispute with the management and that it was she who helped the appellant/respondent No. 2 herein to prepare some forged letters, including the letters of appointment bearing the date 6-7-1994. Because of the misconduct of the appellant, the management had also lodged some police complaint and thereafter terminated his services. The case of the management was that as per the M.E.P.S. Act and the Rules framed thereunder, they were not required to give him any notice and that the contention of the appellant that his services were illegally terminated, was not correct.

4. The Presiding Officer, School Tribunal, Nasik Region, Nasik, after hearing both the sides, by her reasoned order, dated 13-2-2001, partly allowed the appeal filed by the appellant/respondent No. 2 herein, holding that the action of the management in not allowing the appellant to work on the post of peon with effect from 3-8-1996, amounted to otherwise termination of his services and was hence illegal. Holding this, she set aside the said termination order and directed the respondent/petitioner-management herein to reinstate the appellant on his original post of peon. It was also ordered by the impugned order by the School Tribunal that the management pay to the appellant salary of six months towards compensation. Being aggrieved, the management has now filed the present writ petition.

5. It is submitted by Ms. Sadhna Jadhav, learned Advocate appearing for the petitioner-management that since respondent No. 2 was a temporary employee, Rule 28 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter, for the sake of brevity referred to as "the M.E.P.S. Rules, 1981") was not applicable to them and that they were entitled to terminate the services of the said respondent after giving him one calendar month's notice or paying one month's salary in lieu of notice.

6. Mr. R.J. Godbole, learned Advocate appearing for respondent No. 2, on the other hand, submitted that the termination of the services of respondent No. 2 was oral, which was totally illegal and though he was appointed on temporary post but since he had worked on that post for more than two years, the said termination was illegal and hence it should be quashed and set aside.

7. I have heard both the Advocates at length. The contention of Ms. Jadhav that Rule 28 of the M.E.P.S. Rules, 1981 is not applicable to the petitioner-management is not acceptable in as much as respondent No. 2 had worked on the post of peon for more than two years. Rule 28(1) of the M.E.P.S. Rules, 1981 is attracted in a situation where either there is no period stated in the appointment order of a temporary employee and his services are sought to be brought to an end or where the period is stated in the appointment order of such an employee and the management intends to terminate the services of such an employee earlier than the period stated in the appointment order. Respondent No. 2 is covered by the first situation. He has admittedly worked for more than two years and the appointment letter subsequently produced, which is dated 6-7-1994, though mentions that his appointment was for a temporary period, it does not mention any specific period. Initially, the management also has flouted Rule 9(5) of the M.E.P.S. Rules, 1981 in as much as the letter of appointment in the Form in Schedule "D" was not issued to respondent No. 2 and no receipt in token of having received the appointment order was obtained.

8. The School Tribunal also rightly rejected the contention of the management that the Headmistress Smt. Borse herself, with the help of respondent No. 2 had prepared fabricated letters, including the letter of appointment. Rightly, it was pointed out by the School Tribunal that no action was taken by the management against the said Headmistress Smt. Borse for this alleged misbehaviour. It was also pointed out that the management did not produce one single document to support their contention that respondent No. 2 was working as a peon in a Balmandir section and used to take away important documents and register of the society, to take zerox copies thereof and misuse them. In the absence of any supporting document to substantiate the contention put forward by the management, the School Tribunal rightly drew adverse inference against the management and accepted the contentions of respondent No. 2 that from June, 1994 till 3-8-1996 he was working as a peon in the primary as well in the Madhyamik Vidyalaya, run by the petitioner-management. The School Tribunal also rightly held that respondent No. 2 had worked on the said post for a period of more than 2 years. It was correctly held that the services of respondent No. 2 were not terminated in accordance with the provisions of the M.E.P.S. Act and the Rules framed thereunder. Thus the termination of his service were held to be illegal. Though all these findings were in favour of respondent No. 2, the School Tribunal also rightly rejected the claim of respondent No. 2 for backwages, pointing out that though he was qualified for the post of peon and had worked on the said post for more than two years, it could not be said that his appointment was against a clear and permanent vacancy and he gained the status of a permanent employee. That is how the appeal came to be partly allowed as the claim with respect to backwages was rejected by the School Tribunal. However, all the other observations with respect to the termination of his services were rightly made.

Having gone through the impugned judgment and order, I find no infirmity in the same which warrants any interference under Article 227 of the Constitution of India. Hence following order :