Shyam Govindrao Kalamkar vs Presiding Officer And Ors.
2004 Latest Caselaw 1218 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. By this petition filed under Article 226 and 227 of the Constitution of India, the petitioner-employee challenges the judgment dated 19-2-1992 delivered by the Presiding Officer, School Tribunal, Amravati and Aurangabad Division, Aurangabad, in Appeal No. 61/1989-A. In this appeal, the petitioner had challenged the order of termination dared 1-4-1989 by which the present respondents No. 2 and 3 terminated him from service and the School Tribunal has dismissed his appeal on 19-2-1992.

2. Shri Adkar, Advocate, holding for Shri Haq, learned Counsel for the petitioner points out that the School Tribunal has found that the stand Management is that services have been terminated on account of his unsatisfactory work is not correct. However, it has upheld the termination only on the ground that the petitioner has forwarded copy of representation directly to the Education Officer instead of forwarding it through the Head Master as required by Rule 24 of the Maharashtra Employees of Private School (Conditions of Service) Rules, 1981 (hereinafter referred to as Rules, 1981.)

3. The matter was heard on 20-10-2004. As nobody was present for the respondents, the matter came to be adjourned for today. Today, nobody is appearing for respondents No. 2 and 3. Hence, the matter is taken up for final disposal.

4. Advocate Shri Adkar points out that the petitioner is having qualification of B.Sc., B.Ed. and he was appointed on a permanent post on probation for a period of two years from 28-7-1988. His appointment as such was also approved by respondent No. 2 Education Officer. He was however, not given any written appointment order, therefore, he has forwarded a representation dated 20-2-1989 to Education Officer in this respect after having failed to obtain written appointment order from respondents No. 2 and 3. He states that the petitioner was constrained to send the representation dated 20-2-1989 as there was no response from the Head Master or Management. He states that an advance copy was sent to the Education Officer and a copy of the representation was sent to the Head Master on 21-2-1989 under certificate of posting. He further points out that a copy of this representation was sent to several dignitaries under certificate of posting. Because of such representation, the Education Officer visited the school and made enquiry into the matter and thereafter his harassment started. He was given termination order as a part of this harassment. While taking the Court through the impugned judgment delivered by the School Tribunal, he points out that the stand of respondents Nos. 2 and 3 that his services have been terminated during the period of probation on the ground that his work is unsatisfactory, has not been accepted by the School Tribunal. He states that the School Tribunal, however, has found that the representation forwarded by him directly to the Education Officer is in violation of Rule 24 of the Rules 1981, and has, therefore, upheld the action of management in terminating his service on the ground that forwarding of such representation also shows that his work was unsatisfactory. He argues that even if such an action on his part is held to be improper or irregular, still termination for it is unwarranted and a harsh punishment. He further points out that sub-rule (1) of Rule 24 permits the employee to forward a copy of his representation to the authorities. Thus, according to him, the School Tribunal has taken an unwarranted and drastic view of the matter in upholding the action of respondents Nos. 2 and 3.

5. Shri Kankale learned Assistant Government Pleader, appearing for respondents Nos. 1 and 4 states that this is a private dispute between the petitioner and respondents Nos. 2 and 3 and as such the Government is not really concerned with settlement thereof. He however, points out that the claim of back wages of petitioner for wrongful termination of present petitioner will have to be borne by the management There can be no debate about this proposition.

6. Advocate Shri Adkar also invoked the attention of this Court to the letter dated 14-1-1991 written by the Education Officer to the Management (respondents) by which the Education Officer has communicated that the management is not giving proper treatment to the teachers and is creating financial and physical problems for the teachers. The Education Officer has further stated in this letter that the management is trying to victimise the teachers. He also points out that during the relevant period 14 teachers were victimised and those teachers filed appeal before the School Tribunal and he has annexed the details of appeal numbers and parties thereof as Annexure VII along with his petition.

7. Perusal of order of School Tribunal clearly shows that School Tribunal was not convinced that the services of petitioner have been terminated by the Management on account of unsatisfactory work. The necessary finding in this respect is recorded by the School Tribunal in para 8 and it reads as under:

"In view of this mandatory provisions of Rules, I am unable to accept the contention of the respondents that the work of the appellant was bound to be unsatisfactory during the period of probation."

Thereafter the School Tribunal has perused the complaint made by present petitioner and others against the respondent Head Master on 2O2-1989 and has found that it contain grievance against the Head Master. The School Tribunal further held that such grievance should have been routed by the petitioner through the management as per provisions of Rule 24 of the Rules, 1981 and as this has not been done, it amounts to misconduct being contravention of provisions of Rule 24 of the Rules. The School Tribunal further shows that for this misconduct the petitioner was liable to proceeded against departmentally and the management though it fit not to hold departmental enquiry for the above said act and held it as unsatisfactory behaviour. The School Tribunal thereafter makes reference to other instances viz., taking of photographs of school premises without the permission of the management and has held that all these acts show that the respondent-management was right in holding that the behaviour of the petitioner was unsatisfactory. It has therefore, upheld the order of termination.

8. Perusal of Rule 24 reveals that the representation from an employee in connection with his employment or his school to the management or to the department shall be addressed through the head. Sub-rule (1), however, permits employee to towards advance copy of his representation to the authorities. Sub-rule (3) thereof requires the Head or the Management as the case may be, to take final decision on the representation addressed to it by the employee within a period of fortnight of its receipt. If the representation is made to the Departmental Authorities, the Head Management, as the case may be shall forward the same to the Department Authorities within a period of 15 days from its receipt with its remark upon it under intimation to the employee concerned. It is further mentioned that if there is any default in this respect by the Head of Management, the authority to whom the representation is addressed can take action on the advance copy of the representation. Thus, from the scheme of the sub-rule (1), it appears that the employee can forward advance copy and is expected to forward advance copy of the representation to the department. Here, the petitioner and others together have complained to the department against the Head Master. The grievance of the petitioner is that he was not issued any appointment order and he made efforts to obtain appointment order and all his efforts failed and therefore, the representation was forwarded directly to the Education Department. Honest efforts of employee to obtain justice can't be visited with termination,

9. In the facts and circumstances of the case, I do not find that such an act of forwarding representation should have been viewed by the School Tribunal as sufficient to warrant termination of employee from service. Thus, the impugned order suffers from error inasmuch as after having found that the Management has failed to show that the services of the petitioner have been terminated on account of unsatisfactory sendee, the School Tribunal has held that act of forwarding a representation directly in breach of Rule 24 of the Rules goes to show that services of the petitioner is unsatisfactory. It is thus apparent that the School Tribunal has exercised its jurisdiction in the matter. The impugned judgment is, therefore, quashed and set aside.

10. In the petition itself, the petitioner has pointed out that after his termination, he has secured another employment and at present is gainfully employed. He has restricted his claim to backwages only from the date of termination till 8-1-1992. In the circumstances the impugned judgment is quashed and set aside. The order of termination dated 1-4-1989 is also quashed and set aside. As the petitioner is already gainfully employed, there is no question of granting him reinstatement at this stage. However, he is held eligible for back wages from the date of his termination till 8-1-1992.

11. Rule is made absolute in above terms. There shall be no order as to costs.