Janu Lala Pathan And Another vs Subhash Tukaram Jadhavar And ...
2016 Latest Caselaw 5058 Bom

                                                                      WP/2653/2016
                                            1

                    IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD




                                                                              
                              WRIT PETITION NO. 2653 OF 2016




                                                      
     1. Janu Lala Pathan,
     Secretary, Smt. Phundabi
     Shikshan Prasarak Mandal,
     Sanchalit Janpir Vidyalay,




                                                     
     Nalvandi, Tq. Patoda,
     District Beed.

     2. Smt. Kabirabano d/o
     Suleman Shaikh, Headmaster




                                          
     of Janpir Vidyalay, Nalvandi,
     Tq. Patoda, District Beed.
                              ig                                ..Petitioners

     Versus

     1. Subhash Tukaram Jadhavar,
                            
     Age 47 years, Occ. Typist,
     R/o Barshi (in front of Sessions
     Court), Tq. Barshi, Dist. Solapur.
      

     2. The Education Officer (S),
     Zilla Parishad, Beed.                                      ..Respondents
   



                                         ...
                      Advocate for Petitioners : Shri Wagh S.S.
                   Advocate for Respondent 1 : Shri Bade Patil K.D.
                       AGP for Respondent 2 : Shri Kutti P.N.





                                         ...

                              CORAM : RAVINDRA V. GHUGE, J.

Dated: August 30, 2016 ...

ORAL JUDGMENT :-

1. Heard learned Advocates for the respective parties.

2. Rule.

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3. By consent, Rule is made returnable forthwith and the petition

is taken up for final disposal.

4. The petitioner is aggrieved by the order dated 16.10.2016, by

which, the objections raised by the petitioner at Exhibits 18 and 22 in

the execution proceedings Misc. Application No.15 of 2010 have been

rejected.

5.

Contention of the petitioner is that the order of the School

Tribunal, dated 22.11.2001 is a vague order. It does not specifically

state as to how the backwages are to be calculated. After the

judgment of the Honourable Supreme Court, dismissing the Special

Leave Petition of the petitioner, four letters were sent to the

respondent / employee and he did not join. After one year of

waiting, the petitioner obtained permission from the Government

and have filled in the post.

6. It is further contended that though the petitioner is a grant-in-

aid minority institution, there are no salary grants with respect to

the respondent / employee and, therefore, considering the view

taken by the Honourable Supreme Court in the matter of Satimbla

Sharma and Others Vs. St. Pauls Secondary School and others [2011

CJ (SC) 1184], the principle of 'equal pay for equal work' would not

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be applicable to the respondent / employee.

7. It is further contended that because the judgment of the

School Tribunal is vague, the Tribunal cannot go beyond it's order and

hence, considering the view taken by the Honourable Supreme Court

in the matter of Vedic Girls Secondary School Arya Samaj Mandir,

Jhajjar Vs. Smt. Rajwanti and others [AIR 2007 SC 1779], the

executing Court cannot direct payment of salary as per the

Government Scheme.

8. It is further contended that presently the petitioner does not

have any vacancy. They cannot accommodate the respondent. They

can pay the wages to the respondent strictly as per the contract

signed between the petitioner and the respondent employee.

9. Shri Patil, learned Advocate appearing on behalf of respondent

No.1 has supported the impugned order. He contends that the

execution proceedings are still pending. Objections raised by the

petitioner have been rejected by the impugned order. The judgment

of the School Tribunal dated 22.11.2001, granting reinstatement to

him with 75% backwages and all consequential benefits has been

sustained by this Court by it's judgment dated 29.7.2009. The Special

Leave Petition, filed by the petitioner, has been dismissed by the

Honourable Supreme Court and yet the judgment of the Tribunal is

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not implemented.

10. I have considered the submissions of the learned Advocates.

11. The first contention of the petitioner that no salary grants

have been allotted with regard to the respondent / employee and

the rest of the institution is grant-in-aid, deserves no consideration.

The respondent has been held to be an Assistant Teacher. His

termination during his probation period was held to be illegal, right

upto the Honourable Apex Court. By his reinstatement he has,

therefore, attained permanency.

12. It is apparent that the petitioner is putting forth a shrewd

stand of having not understood the judgment of the Tribunal

correctly since it does not state as to how the backwages are to be

calculated. It is settled law that once the termination is set aside,

there is no termination in the eyes of law and such a litigant has to

be treated at par with equally placed employees. This objection of

the petitioner, therefore, has been rightly negated by the Tribunal.

13. The petitioner admits that the backwages at the rate of 75%

from 30.4.1998 till the order of the Honourable Apex Court, has not

been paid to the respondent / employee. Considering the

observations as recorded above, the petitioner is under a legal

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obligation to pay 75% backwages. Causing a delay in the said

payment would indicate an intentional and deliberate disobedience

of the orders passed by the Courts. Therefore, the petitioner cannot

be said to be justified in contending that they would pay the

backwages on the basis of the paltry amount that the management

used to pay to the respondent / employee as per the appointment

order / contract, when he was under probation.

14.

In so far as the contention of the petitioner is concerned, that

it sent four letters to the respondent / employee after the judgment

of the Honourable Apex Court and because he did not join, another

person has been appointed in his place, deserves to be rejected

outright. Rule 16(3) of the MEPS Rules, mandates that the plea of

voluntary abandonment of service would be available to the

management only after the permanent employee is absent

continuously for three years.

15. There is no dispute that the petitioner had engaged the

respondent / employee in litigation right upto the Honourable Apex

Court. On 10.2.2010, the Special Leave Petition of the petitioner has

been dismissed. Until then, the petitioner had not reinstated the

respondent / employee. Nevertheless, unless the respondent /

employee has remained continuously absent for three years, the

petitioner cannot take the plea of voluntary abandonment of service

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and as such any person appointed in place of the respondent /

employee cannot claim equity and cannot seek continuance on the

post.

16. It is, therefore, for the management to decide as to how

would they deal with such a newly appointed person, since the right

of the respondent / employee for reinstatement has been crystallized

before the Honourable Apex Court. The said defense of the

petitioner, therefore, deserves to be rejected.

17. It is informed that the respondent / employee has been now

reinstated on service on 14.3.2016. Shri Patil submits that no work is

being allotted to him. Nevertheless, it is for the management to

keep the respondent employee engaged in service. If no work is

allotted, it would not mean that the petitioner / management could

be justified in depriving the monthly salary of the respondent, which

would be payable at par with equally placed employees.

18. It is quite evident and apparent that this petitioner /

management has made an attempt to avoid compliance of the orders

at issue and has kept the respondent engaged in litigation. The

objections raised by the petitioner before the Tribunal in execution

proceedings clearly indicate that the petitioner is travelling beyond

the judgment of the Tribunal, of this Court, even after the dismissal

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of it's Special Leave Petition. The objection is that the respondent /

employee has no right to the post. The petitioner has the courage to

put forth this objection knowing fully well that the respondent /

employee has succeeded right upto the Honourable Apex Court.

Similar are the other objections, which have, in my view, been

rightly rejected by the School Tribunal.

19. Considering the above, I am dismissing this petition by

imposing costs of Rs.25,000/- (Rs. Twenty Five Thousand only/-) on

the petitioner, since I find that the petitioner has made a deliberate

attempt to tire out the respondent / employee, despite the dismissal

of it's Special Leave Petition on 10.2.2010. It was only after this Court

has passed an order on 9.3.2016 that the petitioner reinstated the

respondent / employee on 14.3.2016 and is still keeping him idle

without work.

20. This petition is, therefore, dismissed. Costs of Rs.25,000/-

(Rs. Twenty Five Thousand only/-) shall be deposited by the

petitioner before the School Tribunal in Misc. Application No.15 of

2010, within a period of four weeks from today, failing which the

School Tribunal shall be justified in refusing to consider the stand of

the petitioner.

21. Looking at the pendency of this litigation since 1998, I find it

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appropriate to direct the School Tribunal to decide Misc. Application

No.15 of 2010 as expeditiously as possible and in any case on/or

before 23.12.2016. The School Tribunal shall not seek an extension

of time and shall be justified in refusing adjournment to the

litigating sides if the same are sought on unreasonable grounds.

21. Rule is discharged with above directions.

22.

On depositing the costs, the respondent / employee shall

withdraw the same from the School Tribunal, without conditions.

( RAVINDRA V. GHUGE, J. ) ...

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