Bombay High Court
Sainath Secondary And Higher ... vs Vijay Kumar Vishnupant Mule And ... on 3 August, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7919 OF 2016
1. Shri Sainath Secondary and Higher
Secondary Vidyalay, Walunj,
Manishanagar Waluj,
Tq. Gangapur, Dist. Aurangabad,
Through - Its Headmaster,
2. Vijay Shikshan Prasarak Mandal,
14, Saidham-Jabinda Estate,
Near Shahnoormiya Dargah,
Shahnoorwadi, Aurangabad,
Tq. and Dist. Aurangabad,
PETITIONERS
Through - the Secretary
VERSUS
1. Vijay Kumar S/o Vishnupant Mule,
Age-38 years, Occu-Service,
R/o Plot No.7, Kamalpur Road,
Waluj, Tq. Gangapur,
Dist. Aurangabad,
2. The Deputy Director,
Vocation Training and Education,
Office - Bhadkal Gate,
Aurangabad,
3. The District Vocational and Training
Education Office, Aurangabad RESPONDENTS
Ms.Vinaya Muley Dharurkar, Advocate for the petitioners.
Mr.P.G.Borade, AGP for respondent Nos. 2 and 3.
Mr.R.I.Wakade, Advocate for respondent No.1.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 03/08/2016
ORAL JUDGMENT :
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1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The petitioner is aggrieved by the judgment of the School
Tribunal, Aurangabad dated 19/09/2015 by which Appeal No.1/2011
has been partly allowed and the respondent No.1 employee has been
granted reinstatement with continuity and 30% back wages.
3. The petitioner has strenuously criticized the impugned
judgment. Contention is that the appointment of the employee was
without following the due procedure of law. Though he has worked
for 10 years, he abandoned employment on 30/12/2010. Despite
notices to remain present, he did not attend duties.
4. The respondent/employee has suppressed the fact that he had
got an Educational Society registered in 2002 by the name
Sanwardhan Bahuuddeshiya Sevabhavi Sanstha. He started
operating a Jr. College for imparting education to 9 th to 12 standard.
Had the petitioners got the knowledge of these facts, they could have
been canvassed before the Tribunal. Nevertheless, the employee is
guilty of suppressing these facts.
khs/AUGUST 2016/7919-d
5. The respondent/employee did not desire to report for duties
since he must have concentrated on his proposed Jr. College. Despite
the Management having taken a stand that he was not terminated,
he did not report for duties. His income through the Jr. College
deserves to be taken into account and while applying the principle of
"no work no pay", the respondent/employee deserves to be deprived
of the back wages. The petitioners never terminated the
respondent/employee and is willing to reinstate him even today.
6. Learned Advocate for the respondent No.1 / employee submits
that the impugned judgment cannot be termed as being perverse or
erroneous. Hence no interference is called for. Despite the
contention of the petitioners that the employee abandoned
employment, the theory put forth by the petitioners is disproved by
the fact that the employee had preferred his appeal u/s 9 of the
M.E.P.S.Act for challenging his termination dated 30/12/2010, on
18/01/2011. This indicates that he had preferred an appeal within
20 days. There is no dispute that he worked for 10 years and he has
attained the deemed status of a permanent employee. It is admitted
that he was running the Jr. College from 2014, which is non-
functional today.
khs/AUGUST 2016/7919-d
7. Learned AGP appearing for respondent Nos. 2 and 3 supports
the impugned judgment.
8. I have considered the submissions of the learned Advocates.
9. It cannot be disputed that an advertisement was published by
the petitioners which was placed before the Tribunal. Pursuant to
the advertisement, respondent No.1 was selected and his
appointment order was also placed before the Tribunal. He was
appointed on probation for 2 years w.e.f. 12/06/2000. His proposal
for approval alongwith other employees, falling under the teaching
and non-teaching categories, was submitted by the Management to
the competent authority. Respondent No.3 has still not taken a
decision on the said proposals.
10. It is settled law in the light of the judgment of the learned Full
Bench of this Court in the matter of St.Ulai High School and another
Vs. Devendraprasad Jagannath Singh and another, 2007(1)
Mh.L.J.597 that lack of approval cannot be a ground for termination
of the services of an employee. Needless to state, since respondent
No.1 had worked for 10 years pursuant to his appointment on
khs/AUGUST 2016/7919-d
probation, he was a permanent employee of the petitioner.
11. The Management has come before the Tribunal with a specific
stand that the employee was not terminated and that he had
abandoned employment. I find this stand to be unsustainable in the
light of Rule 16(3), which provides that the continued absence of a
permanent employee without leave for a period exceeding 3 years,
shall be deemed to be voluntary abandonment of service. In the
instant case, the Management contends that respondent No.1 has
abandoned employment from 30/12/2010, when he has approached
the School Tribunal on 18/01/2011 within 20 days of his absence.
The theory of abandonment therefore has to be negated.
12. Considering the above, the order of the Tribunal, directing
reinstatement with continuity of service, does not call for any
interference.
13. In so far as the back wages are concerned, it is evident that
neither had the employee/appellant informed the Tribunal that he
had got a society registered, nor had he started operating his
Jr.College prior to 2014. As such, in between 30/12/2010, and the
academic year 2014-2015, the employee was not operating / running
khs/AUGUST 2016/7919-d
a Jr.College. It is stated that earlier he was the Secretary of the said
Institution and presently is the President. The change report is
pending.
14. The Hon'ble Supreme Court in the matter of Gauri Shanker Vs.
State of Rajasthan, 2015(2) CLR 497 and in the matter of Nicholas
Piramal India Ltd., Vs. Hari Singh 2015(2) CLR 468 has concluded
that back wages in between 25% to 50% would be a fair
compensation for reducing the hardships suffered by an employee.
15. In the instant case, the School Tribunal had stayed the oral
termination by its order dated 19/01/2011. Interim order is not set
aside. The petitioner/ Management should have therefore reinstated
the employee. Considering the interim order of the Tribunal, the
petitioners should have directed the employee to report for duties and
had he failed or declined to report, should have brought this aspect
to the notice of the School Tribunal. This has not been done in this
case.
16. In this backdrop, the respondent/employee would therefore be
entitled for the back wages as granted by the Tribunal, but only upto
May 2014 for the reason that in the academic year 2014-2015, the
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respondent/employee began operating his Jr. College for 9 th to 12th
standards. As such, for deriving revenue from operating a Jr.College,
his claim for back wages cannot be sustained.
17. Learned Advocate for the petitioners submits on instructions
that respondent No.1 can report for duties within a week, may be by
10/08/2016. Learned Advocate for respondent No.1 submits on
instructions from the employee that he will report for duties on
10/08/2016 at 7.30 a.m. considering the timing of the school.
Statements are therefore recorded.
18. In the light of the above, this petition is partly allowed to the
extent of modifying the direction of the School Tribunal to pay 30%
back wages from 01/01/2011 till May 2014. The employee shall not
be entitled for back wages from June 2014 till 09/08/2016
considering that he shall report for duties on 10/08/2016.
19. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J.)
khs/AUGUST 2016/7919-d
