Dwaraka Bahu Uddeshiya Gramin vs Presiding Officer
2010 Latest Caselaw 37 Bom

                                     1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         NAGPUR BENCH, NAGPUR




                                                                              
                      Writ Petition No.1727 of 2009




                                                      
    1. Dwaraka Bahu Uddeshiya Gramin
       Vikas Foundation, Buldhana,
       through its President,
       Office at Chaitanyawadi,




                                                     
       Aided High School Square,
       Buldhana,
       Tah. and Dist. Buldhana.

    2. Shri Navnath Secondary School,




                                           
       Gummi, through its Head Master,
       Tq. And Dist. Buldhana.                   ... Petitioners


    Versus
                            
                           
    1. Presiding Officer,
       School Tribunal,
       Amravati Division,
       Amravati.
      

    2. Satishkumar Rambhau Jumade,
       Aged about 32 years,
       R/o New Shikshak Colony,
   



       Dhamandhari,
       Tq. & Dist. Buldhana.

    3. The Education Officer (Secondary),
       Zilla Parishad, Buldhana.                 ... Respondents





    Shri A.A. Kathane, Advocate for Petitioner.





    Shri Mujumdar, AGP for Respondent Nos.1 and 3.
    Shri P.S. Patil, Advocate for Respondent No.2.




               CORAM : R.K. Deshpande, J.

DATE : 15th October, 2010

Oral Judgment :

1. This writ petition is preferred by the Management challenging

the judgment and order dated 21-6-2008 passed by the learned Presiding

Officer, School Tribunal, in Appeal No.41 of 2005, partly allowing the

appeal filed by the respondent No.2/employee challenging his

termination. The order of termination has been set aside. However, the

order of reinstatement has not been passed on the ground that the

School was closed down. The School Tribunal has further held that the

respondent/employee is entitled to 50% back wages. The Education

Officer is directed to include the name of the respondent/employee in the

list of surplus staff for the purposes of absorption, as provided by Rule

25A of the Maharashtra Employees of Private Schools (Conditions of

Service) Rules, 1981 (for short, hereinafter referred to as "the MEPS

Rules"), on the ground that the School is closed down.

2. The petition further challenges the order dated 20-3-2009

passed by the School Tribunal allowing Misc. Application/Review Petition

No.36 of 2008 filed by the respondent/employee. By this order, the

termination of the respondent/employee effected on 22-11-2005 is

declared as illegal and void and the petitioner/Management is directed to

reinstate the respondent/employee on the post of Assistant Teacher.

Although in the earlier original order the reinstatement was refused on

the ground that the School is closed down, that part of the order has been

reviewed and the order of reinstatement has been passed. The order of

50% back wages passed earlier has been maintained.

3. The first question, which arises for consideration, is whether

the School Tribunal has power to review its own order. Shri Kathane, the

learned counsel appearing for the petitioner, has urged that there is no

power of review conferred upon the School Tribunal and it is well settled

that unless the power of review is specifically conferred by the Statute,

such power cannot be exercised. Shri Patil, the learned counsel

appearing for respondent No.2/employee, relying upon the provision of

Section 10(1) of the Maharashtra Employees of Private Schools

(Conditions of Service) Regulation Act, 1977 (for short, hereinafter

referred to as "the MEPS Act"), has urged that the School Tribunal has

power to review its own order.

4. The provision of Section 10(1) being relevant, is reproduced

below :

"10. General powers and procedure of Tribunal : (1) For

the purposes of admission, hearing and disposal of appeals,

the Tribunal shall the same powers as are vested in an

Appellate Court under the Code of Civil Procedure, 1908, and

shall also have the power to stay the operation of any order

against which an appeal is made, on such conditions as it

may think fit to impose and such other powers as are

conferred on it by or under this Act."

Bare perusal of the aforesaid provision reveals that it is for the purposes

of admission, hearing and disposal of appeals, the Tribunal has all such

powers as are vested in the Appellate Court under the Code of Civil

Procedure, 1908. The learned counsel for the respondent/employee does

not dispute that the powers of the Appellate Court under the Code of Civil

Procedure are contained in Section 96 read with Order 41 of Code for

admission, hearing and disposal of appeals. He also does not dispute

that the power of review is not conferred upon the Appellate Court under

any of these provisions. He, however, submits that the power of review is

available to the Appellate Court under Section 114 read with Order 47 of

the Code of Civil Procedure and hence, the Tribunal can exercise such

power.

5.

It is not possible to accept the aforestated contention for the

reason that it is only for the purposes of admission, hearing and disposal

of appeal, the powers of Appellate Court under Section 96 read with

Order 41 of the Code of Civil Procedure are conferred upon the Tribunal.

Once it is accepted that power under Section 96 read with Order 41 does

not include the power to review the judgment, the exercise of such power

to review does not arise. When the entire appeal stands disposed of on

delivery of judgment, there exists no scope for re-opening the issues

which are concluded. The Appellate Court, under the Code of Civil

Procedure, exercises the power of review as per the provisions of Section

114 read with Order 47 of the Code of Civil Procedure after the appeal is

disposed of. The power under Section 114 read with Order 47 of the

Code of Civil Procedure can be exercised only if it is specifically conferred.

Section 10 of the MEPS Act, reproduced above, does not invest the School

Tribunal, the power of review available to the Appellate Court under

Section 114 read with order 47 of the Code of Civil Procedure and hence

the same cannot be exercised.

6. It is now well settled that unless the power of review is

specifically conferred by the Statute, the same is not available to the

authority, court or tribunal. In this respect, para 13 of the judgment in

Devendra Gurunath Khedgikar v. Scheduled Tribe Certificate Scrutiny

Committee, Pune and another, reported in 2009(3) Mh.L.J. 433, relied

upon by the learned counsel for the petitioner, is relevant and the same

is reproduced below :

" Having heard rival contentions, it is beyond doubt and

now well established that the quasi-judicial authority cannot

review its own order unless the power of review is expressly

conferred by the Statute under which it derives its power.

The power of review is not an inherent power. It must be

conferred by law either specifically or by necessary

implications. No such provision, in fact, is brought to our

notice from which it can be gathered that the Scrutiny

Committee has power to review its own order. (See The

District Collector of Hyderabad and Ors. vs. M/s Ibrahim and

Co., AIR 1970 SC 1275 Para-4 and Dr. Smt. Kuntesh Gupta vs.

Management of Hindu Kanya Mahavidyalaya, Sitapur, AIR

1987 SC 2186). In view of the law laid down by the Apex

Court, we accept the contention of Mr. Jahagirdar that the

Scrutiny Committee has no power to review its own order."

In view of the above, the School Tribunal constituted under Section 9 of

the MEPS Act, has no power of review. The order of review passed by the

School Tribunal on 20-3-2009 in Misc. Application/Review Petition No.36

of 2008 is without jurisdiction and cannot be sustained. The same is,

therefore, quashed and set aside.

7. So far as the challenge to the main judgment and order

dated 21-6-2008 passed by the School Tribunal in Appeal No.41 of 2005

is concerned, Shri Patil, the learned counsel for the respondent/employee,

submits that there was an error apparent on the face of the record when

the Tribunal has recorded a finding that the School was closed down on

account of de-recognition and, therefore, the order of reinstatement was

not granted. He submits that the Tribunal proceeded on the wrong

assumption and it has been pointed out to the Tribunal that the School, in

which the respondent/employee was appointed, was not actually

de-recognized, but it was some other School run by the Management that

was de-recognized. If the Tribunal has proceeded on the wrong

assumption that the School, in which the respondent/employee was

working, was de-recognized, then there is obviously an error apparent on

the fact of the record and on that count itself, the original judgment and

order dated 21-6-2008 passed by the Tribunal cannot be sustained. The

petitioner/Management has also challenged the said judgment and order

on several grounds, which have not been taken into consideration by the

Tribunal. At any rate, if the judgment and order dated 21-6-2008 cannot

be sustained on the grounds raised by the respondent/employee, then

obviously the Tribunal has to decide the matter afresh after giving an

opportunity to all the parties to amend their pleadings or to file on record

the additional documents in support of their case.

8. In the result, the instant writ petition is allowed. The

judgment and order dated 20-3-2009 passed by the School Tribunal

allowing Misc. Application/Review Petition No.36 of 2008 is hereby

quashed and set aside and Application No.36 of 2008 filed by the

respondent/employee is dismissed.

The judgment and order dated 21-6-2008 passed by the

School Tribunal in Appeal No.41 of 2005 is hereby quashed and set aside

and the matter is remitted back to the School Tribunal for decision of the

said appeal afresh in accordance with law within a period of six months

from the date of appearance of the parties before it.

The learned counsel for the parties state that the parties shall

appear before the School Tribunal on 30-10-2010.

The learned counsel for the petitioner submits that an amount

of Rs.50,000/- has been deposited by the petitioner in this Court

on 27-10-2009. If this amount is kept in fixed deposit, then the same

shall be transmitted to the School Tribunal, Amravati, for passing

appropriate orders after the decision of the appeal in accordance with

law.

No order as to costs.

Judge.

Pdl.