Bombay High Court
Yuvak Vikas Shikshan Prasarak ... vs Suryabhan Hanumant Murkute And ... on 8 December, 2016
Bench: R.V. Ghuge
*1* 909.wp.11934.35.38.16.con
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11934 OF 2016
1 Yuvak Vikas Shikshan Prasarak Mandal,
Pimpaldari, Tq.Gangakhed,
District Parbhani.
Through its Secretary,
Gangadhar s/o Digambarrao Mundhe,
Age : 65 years, Occupation : Pensioner,
working as Secretary, Yuvak Vikas
Shikshan Prasarak Mandal,
Pimpaldari, Tq.Gangakhed,
District Parbhani.
R/o in front of Prerna School,
Chate Colony, Gangakhed,
Tq.Gangakhed, District Parbhani.
2 Yuvak Vikas Shikshan Prasarak Mandal's
Adhyapak Vidyalaya, Udhavrao Patil
Chouk, Himayatbag, Harsool Road,
Aurangabad.
Through its Principal.
...PETITIONERS
-VERSUS-
1 Adinath s/o Abarao Ghule,
Age : 43 years, Occupation : Service,
R/o ED-4-6-Ed, Sector N-1,
Bharatmata Nagar, HUDCO,
Aurangabad.
2 The Deputy Director of Education,
Aurangabad Division, Aurangabad.
...RESPONDENTS
WITH
WRIT PETITION NO.11935 OF 2016
1 Yuvak Vikas Shikshan Prasarak Mandal,
::: Uploaded on - 13/12/2016 ::: Downloaded on - 14/12/2016 00:25:10 :::
*2* 909.wp.11934.35.38.16.con
Pimpaldari, Tq.Gangakhed,
District Parbhani.
Through its Secretary,
Gangadhar s/o Digambarrao Mundhe,
Age : 65 years, Occupation : Pensioner,
working as Secretary, Yuvak Vikas
Shikshan Prasarak Mandal,
Pimpaldari, Tq.Gangakhed,
District Parbhani.
R/o in front of Prerna School,
Chate Colony, Gangakhed,
Tq.Gangakhed, District Parbhani.
2 Yuvak Vikas Shikshan Prasarak Mandal's
Adhyapak Vidyalaya, Udhavrao Patil
Chouk, Himayatbag, Harsool Road,
Aurangabad.
Through its Principal.
...PETITIONERS
-VERSUS-
1 Ravikumar s/o Pralhadrao Jaybhaye,
Age : 40 years, Occupation : Service,
R/o Dhabhade Super Market,
Bharatmata Nagar, HUDCO,
Aurangabad.
2 The Deputy Director of Education,
Aurangabad Division, Aurangabad.
...RESPONDENTS
WITH
WRIT PETITION NO.11938 OF 2016
1 Yuvak Vikas Shikshan Prasarak Mandal,
Pimpaldari, Tq.Gangakhed,
District Parbhani.
Through its Secretary,
Gangadhar s/o Digambarrao Mundhe,
Age : 65 years, Occupation : Pensioner,
working as Secretary, Yuvak Vikas
Shikshan Prasarak Mandal,
::: Uploaded on - 13/12/2016 ::: Downloaded on - 14/12/2016 00:25:10 :::
*3* 909.wp.11934.35.38.16.con
Pimpaldari, Tq.Gangakhed,
District Parbhani.
R/o in front of Prerna School,
Chate Colony, Gangakhed,
Tq.Gangakhed, District Parbhani.
2 Yuvak Vikas Shikshan Prasarak Mandal's
Adhyapak Vidyalaya, Udhavrao Patil
Chouk, Himayatbag, Harsool Road,
Aurangabad.
Through its Principal.
...PETITIONERS
-VERSUS-
1
Suryabhan s/o Hanumant Murkute,
Age : 40 years, Occupation : Service,
R/o Plot No.A-1B, E/D-Sector,
Bharatmata Nagar, HUDCO,
Aurangabad.
2 The Deputy Director of Education,
Aurangabad Division, Aurangabad.
...RESPONDENTS
...
Advocate for Petitioners : Shri Anand P. Bhandari with Shri R R Bangar.
Advocate for Respondent No.1 : Shri Bhosale Santosh B.
AGP for Respondent 2 : Shri N.T.Bhagat.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 08th December, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and by the consent of
the parties, all these petitions are heard finally together.
*4* 909.wp.11934.35.38.16.con
2 In all these petitions, the Petitioner/ Management is
aggrieved by the order dated 05.10.2016 delivered by the School Tribunal
in Miscellaneous Application Nos.10/2016, 09/2016 and 11/2016 by
which the delay of about three years has been condoned.
3 I have considered the strenuous submissions of Shri Bhandari,
learned Advocate for the Petitioner/ Management and Shri Bhosale,
learned Advocate on behalf of the Respondents/ Employees. The learned
AGP submits that in the matters of condonation of delay, the Education
Department has nothing to say at this stage.
4 Though Shri Bhandari has taken me through the voluminous
record, the order passed by the learned Division Bench of this Court in
Writ Petition No.6850/2013 filed by these three Respondents/ Employees
would have an impact on the result of these three petitions.
5 By order dated 15.03.2016, the learned Division Bench noted
the statement of these Respondents/ Employees that they desire to
withdraw the petition and avail of an alternate remedy. For the sake of
clarity, the order dated 15.03.2016 is reproduced as under:-
"1. Learned counsel appearing for petitioner, on
instructions seeks leave to withdraw the petition with
liberty to avail of the remedy available in law. Leave
*5* 909.wp.11934.35.38.16.con
granted. The writ petition stands disposed of as
withdrawn with liberty as prayed for.
2. The Tribunal, dealing with the matter, may consider
the time spent by the petitioner in prosecuting the
remedy before this Court, while considering an
application for condonation of delay in presenting the
appeal."
6 In Writ Petition No.6850/2013, these Employees had put
forth the prayers for demanding specific pay scales as were granted to
them and certain allied grievances. The issue of oral termination was not
the subject matter of adjudication before the learned Division Bench.
Considering the time consumed in Writ Petition No.6850/2013 from 2013
till 15.03.2016, when the learned Division Bench passed it's order, it was
observed that the time spent before this Court would be a ground for
considering the condonation of delay, if any.
7 The Honourable Supreme Court in the matter of the Collector,
Land Acquisition, Anantnag v/s Mst.Katiji, AIR 1987 SC 1353 and in the
matter of Esha Bhattacharjee v/s Managing Committee of Raghunathpur
Nafar Academy, (2013) 12 SCC 649, has concluded that if the delay is
properly explained and if the same is neither deliberate nor inordinate,
the same has to be considered liberally. It is settled law that if laches are
not attributed to the conduct of the claimant and if the claimant does not
acquire any undue advantage by causing the delay, the application for
*6* 909.wp.11934.35.38.16.con
condonation of delay is to be entertained.
8 There is no dispute that these Respondents were before this
Court for almost three years. On 15.03.2016 the learned Division Bench
permitted the Respondents to withdraw the petition and take recourse to
an available remedy. Within six weeks from the order of the learned
Division Bench, these Respondents have approached the School Tribunal.
In this backdrop, without taking into account the contentions of the
Petitioner about a fraud being played by the Respondents, which can be
looked into while deciding the appeals on their merits, I am of the view
that the delay has been rightly condoned by the School Tribunal.
9 However, it cannot be ignored that the delay caused by a
litigant in approaching an appropriate forum ought not to lead to a
disadvantage to the opponents, inasmuch as the said litigant cannot take
undue advantage of the delay caused. In the instant cases, in the event,
the Respondents/ Employees succeed in the appeals against the alleged
oral termination dated 01.03.2013, they would naturally claim full back
wages with continuity even for the period 01.03.2013 till 23.04.2016
when the appeals were lodged. If this is permitted, it would amount to
giving undue latitude to the claimants who would be eventually drawing
an advantage even for the period of delay. This aspect has not been
*7* 909.wp.11934.35.38.16.con
considered by the School Tribunal and therefore, requires consideration in
these petitions.
10 The learned Advocate for the Respondents/ Employees, on a
specific instructions from the three Respondents/ Employees present in
the Court and which has been confirmed twice, submits that these three
Respondents/ Employees, as on date, are not willing to report for duties.
When asked as to whether, these Respondents/Employees would desire to
file an affidavit to that extent, these Respondents/ Employees have
instructed the learned Advocate in the Court that the requirement of an
affidavit is not necessary and their statement can be recorded.
11 The learned Advocate for the Respondents/ Employees
further makes a statement that if the Management is desirous of granting
regular pay scales to these Employees, they would report for duties on a
given date and would not claim back wages from 01.03.2013 till the date
they would join on an assurance of being granted regular pay scales and
continuity. I am not required to deal with this aspect since the employees
and the Management, are at liberty to settle the dispute before the School
Tribunal.
12 Shri Bhandari, on instructions, submits that the scale as is
*8* 909.wp.11934.35.38.16.con
permitted by the MEPS Act, 1977 and the Rules applicable, shall always be
made available to the Respondents/ Employees.
13 In the light of the above, these Writ Petitions are partly
allowed. The impugned orders of the School Tribunal dated 05.10.2016 to
the extent of condonation of delay are sustained. However, in order to
balance the equities and in the light of the law laid down by the
Honourable Supreme Court, the School Tribunal shall note that these
three Respondents shall not be entitled to claim back wages for the period
01.03.2013 till 29.04.2016 as they have lost their right to claim such back
wages considering the delay that has been caused by them in approaching
the School Tribunal on 29.04.2016. Continuity of service would be open to
be considered by the School Tribunal.
14 Needless to state, this Court has not considered the rival
claims as regard the alleged oral termination and has not dealt with the
merits of the appeals.
15 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
