Bombay High Court
Pradnya Shikshan Sanstha, ... vs The Presiding Officer, School ... on 19 September, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6991 OF 2015
1. Pradnya Shikshan Sanstha,
Yerandi, Navegaon Bandh, Tq.
Arjuni Morgaon, District Gondia,
through its Secretary.
2. Smt. Malanitai S. Dahiwale Aided
Tribal Primary and Secondary
Ashram School, Yerandi, Tq. Arjuni
Morgaon, District Gondia, through
its Head Master. ... PETITIONERS
ig VERSUS
1. The Presiding Officer,
School Tribunal, Nagpur.
2. Dhenumata d/o Kisan Kamble,
r/o Mungli, Post-Navegaon Bandh,
Tq. Arjuni Morgaon, District Gondia.
(Original Appellant).
3. The Project Officer, Integrated Tribal
Development Project, Deveri,
District Gondia. ... RESPONDENTS
....
Shri H.A. Deshpande, Advocate for the petitioners.
Smt. H.N. Prabhu, Assistant Government Pleader for respondent Nos.1
and 3.
Smt. R.D. Raskar, Advocate for respondent No.2.
....
CORAM : PRASANNA B.VARALE, J.
DATED : 19TH SEPTEMBER, 2016.
ORAL JUDGMENT :
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Rule. Rule is made returnable forthwith. Heard finally with the
consent of the learned Counsel appearing on behalf of the respective
parties. Smt. H.N. Prabhu, learned Assistant Government Pleader waives
notice on behalf of respondent Nos.1 and 3 and Smt. R.D. Raskar, the
learned Counsel waives notice on behalf of respondent No.2.
2. By way of present petition, the petitioners challenge the order,
dated 25.08.2015 passed by the learned Presiding Officer, School Tribunal,
Nagpur.
3. The brief facts which give rise to the filing of the present
petition can be summarized as under :-
The respondent No.2 was appointed as "Cook Maker" in the
basic Ashram School at Murmadi, Taluka Lakhandur, District Bhandara
being run by the petitioner No.1-Education Institute. The appointment of
respondent No.2 was for a temporary period of two years i.e. from
10.07.2008 to 09.07.2010. The petitioners, on finding that the work of
respondent No.2 was not satisfactory and in stead of discharging her
duties in diligent manner, the respondent No.2 was avoiding to discharge
her duties, issued notice to respondent No.2 initially on 22.10.2008. On
16.07.2009, another notice was issued calling upon explanation from
respondent No.2. As there was no response to the notice dated 16.07.2009,
further notice was issued on 31.08.2009 calling upon explanation from
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respondent No.2 within three days. Again on 08th January, 2010, it was
found that the respondent No.2 failed to discharge her duties and more
particularly failed to maintain the premises clean, notice was issued.
4. Perusal of the material placed on record shows that the
respondent No.2 submitted an explanation to the communication notice
dated 16.07.2009. The respondent No.2 tendered an apology and also
assured the petitioner/institute to comply with the service conditions.
Again on 24.02.2010, she submitted her explanation and tendered her
apology for her absence on duty without seeking prior permission. The
meeting of the Executive Committee was conducted on 30.05.2010 and the
Committee found that the respondent No.2 was not discharging her duties
satisfactorily and in spite of notices given to her, there was no change in
the behaviour of respondent No.2. As such, it was decided to terminate the
services of respondent No.2 by issuing a notice. Accordingly, on
08.06.2010, notice was issued and on 08.07.2010, the order was passed
terminating the services of respondent No.2. Being aggrieved by the said
order, the respondent No.2 by preferring an appeal approached the School
Tribunal. As the appeal was submitted belatedly, an application seeking
condonation of delay was also filed. It was submitted in the application
that the applicant/appellant was undergoing medical treatment as she was
suffering from an ailment. The petitioners who were the respondents
before the School Tribunal, contested the appeal by filing their written
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submissions. The learned Presiding Officer, School Tribunal framed the
issues for consideration, namely, whether impugned termination order
dated 08.07.2010 is illegal and contrary to law; whether appeal is
maintainable; and whether appellant is entitled to get relief as prayed for.
The findings of the Tribunal on the issue Nos. (1) and (2) were affirmative.
The Tribunal ultimately allowed the appeal partly by setting aside the
termination order and further directed the petitioners to reinstate the
respondent No.2 with continuity in service and 50 per cent of back wages
within stipulated period of one month.
5. Shri Deshpande, the learned Counsel for the petitioners
vehemently submits that the Tribunal misdirected itself in appreciation of
the grounds raised by the appellant. It is further the submission of the
learned Counsel for the petitioners that the respondent No.2 in appeal
took a stand that respondent No.2/appellant was discharging her duties
diligently and initially the wife of respondent No.2-Secretary who used to
ask the appellant/respondent No.2 to do household work and as a part of
courtesy, the appellant/respondent No.2 initially was obliging the wife of
respondent No.2-Secretary by following her direction. Subsequently,
when she refused to oblige the wife of respondent No.2, as a revengeful
act, the respondent/appellant was subjected to termination. It was
submitted in the appeal that as per the provisions of Rule 20 of the
Appendix-16 of the Ashram Schools Code, the services of the respondent
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No.2/appellant could not have been terminated even though she was in
the probation period without holding any enquiry. It was submitted in the
appeal by raising the ground that as no enquiry was conducted, there was
no material to show that the respondent No.2/appellant was guilty of
indulging in serious charges levelled against her. It was also submitted in
the appeal that whatsoever allegations about failure of the duties levelled
against the respondent No.2/appellant, those were the duties of Madatnis
or Attendant and not of the appellant who was appointed as a Cook.
6. Shri Deshpande, the learned Counsel for the petitioners
submits that though all these grounds were raised in appeal, not a single
ground was raised which would lead to submit before the Tribunal that the
order passed against the respondent No.2 was a stigmatic order or the
order was of punitive in nature. He then submits that the Tribunal without
their being having any such pleading, arrived at a conclusion that the
termination of respondent No.2/appellant amounts to dismissal and the
said termination of service is not simpliciter by way of punishment and the
termination order is punitive. It is the submission of the learned Counsel
for the petitioners that the approach of the learned Presiding Officer,
School Tribunal is clearly unsustainable in view of the judgments of this
Court. The learned Counsel relies on the judgment of the learned Single
Judge of this Court in the case of Manohar Mahadeo Bhajikhaye .v.
Presiding Officer, School Tribunal, Chandrapur and others (reported in
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2011 (4) Mh.L.J., 312) as well the judgment of the Division Bench of this
Court in the case of Sadhana Janardhan Jadhav .v. Pratibha Patil
Mahila Mahamandal and others (reported in 2013(2) Mh.L.J., 484).
7. Per contra, Smt. Raskar, the learned Counsel for respondent
No.2 supports the order impugned in the petition. It is the submission of
Smt. Raskar, the learned Counsel that the respondent No.2 was appointed
in the year 2008 for a temporary period of two years and was under
probation, attained the status of permanent employee when the order of
termination was passed. She further submits that the notice dated
31.08.2009 referring to failure of duties in general and more particularly of
clauses 1 to 11 of Section 5.8 of the Ashram Schools Code, nowhere relate
to any duty of respondent No.2/appellant as a Cook. She also submits that
these are the duties assigned to the Madatnis or Kamathi and as per clause
20 of Chapter 16, the services of respondent No.2 could not have been
terminated by issuing one month's notice. It is the submission of Smt.
Raskar that as per the service conditions of Chapter 16 and clause 20, the
procedure for issuance of one month's notice for termination of services is
applicable to the temporary employees other than those employees who
are working under the probation period.
8. On hearing both the learned Counsel appearing on behalf of
the respective parties, I find considerable merit in the submission of Shri
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Deshpande, the learned Counsel for the petitioners. The grounds referred
to while issuing the notice to respondent No.2 and more particularly the
notice dated 16.07.2009 relates to failure of discharging the duties
satisfactorily. The item Nos.2, 4 and 6 are certainly the duties in relation to
maintaining cleanliness and hygiene in the premises wherein the students
take their food as well relate to maintaining the cleanliness of raw material
used for preparing the food. Thus, I am unable to accept the submission of
Smt. Raskar, the learned Counsel for respondent No.2 that the alleged
notice does not relate to any of the duties of the respondent
No.2/appellant. Perusal of the material also shows that the respondent
No.2/appellant initially submitted her explanation to the notices
expressing her apologies.
9. Be that as it may, the material consideration is on the backdrop
of submission of Shri Deshpande that in the appeal preferred by
respondent No.2/appellant, the ground of the order of termination being a
punitive action was stigmatic action was clearly missing. The Tribunal
without there being such ground raised on its own, arrived at a conclusion
that the termination order is punitive or is stigmatic. Shri Deshpande, the
learned Counsel for the petitioners is justified in placing reliance on the
judgment in the matter of Manohar Mahadeo Bhajikhaye .v. Presiding
Officer, School Tribunal, Chandrapur and others (cited supra). It would be
useful to refer the observation of this Court in the said judgment, as under.
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"... In such circumstances, when it was not the case of the
respondent that the appointment of the petitioner was not in
accordance with the provisions of the Act of 1977 or the Rules
of 1981 and when in fact, the management by thinking
otherwise had held an enquiry against the petitioner under
the provisions of the Rules by considering the petitioner as a
confirmed employee, there was no reason for the Tribunal to
frame the second issue and answer it in the negative and
against the petitioner. An issue arises only when there is an
assertion made by a party and the denial of the said assertion
by the other party. ..." (emphasis supplied).
Similarly, this Court in the matter of Sadhana Janardhan Jadhav .v.
Pratibha Patil Mahila Mahamandal and others (cited supra), observed
thus :-
"Under the civil jurisprudence in the adversary litigation, a
Court of law is required to decide the issues or the disputes
arising between the parties and as projected by the parties
before the Court. The issue whether the appointment of the
concerned teacher was made in accordance with section 5 of
the MEPS Act and the Rules framed thereunder or not, is a
mixed question of facts and law and is not a question of
jurisdiction of the Tribunal. The issues on mixed question of
facts and law are framed by the Court of law or the Tribunals
in accordance with the pleas raised by the contesting parties
in their respective pleadings. The issues arise when they are
pleaded according to the law. By raising a one line pleading
without any substantiation thereof, that the appointment of
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the appellant was not in accordance with section 5 of MEPS
Act and the Rules, cannot give rise to an issue to that effect.
The issues must be framed confined to facta probanda, i.e.
with respect to material questions of fact or law and not to
facta probantia, i.e. on subordinate facts. Court should not
decide an issue not arising out of pleadings of parties.
Similarly, no issue can be framed on a point not pleaded. The
Tribunal is guided by the pleadings raised by the contesting or
other parties before it and the Tribunal does not have any
personal knowledge about the case of the parties before it.
The issue about validity of the appointment, as contemplated
by section 5 of MEPS Act and the Rules framed thereunder,
cannot be said to be an issue of jurisdiction of a Tribunal."
10. Though Smt. Raskar, the learned Counsel for respondent No.2
makes an attempt to draw support by referring certain provisions of
Ashram Schools Code, Shri Deshpande, the learned Counsel for the
petitioners submits that the said Code is merely a compilation of
administrative order. Shri Deshpande, the learned Counsel refers to the
judgment of the Full Bench of this Court in the case of Suryakant
Sheshrao Panchal .v. Vasantrao Naik Vimukta Jati, Bhatakya Jamati
Aadarsh Prasarak Mandal and others (reported in 2002(3) Mh.L.J., 659).
It is not necessary for this Court to deal with these issues. This Court is of
the opinion that the ends of justice would be met by remitting the matter
back to the learned Presiding Officer, School Tribunal, Nagpur to decide
the appeal afresh by giving equal opportunity of hearing to the respective
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parties. The appeal is of the year 2011 and the same is challenging the
order of termination of the year 2010.
11. In the result, the order of the Tribunal impugned in the petition
is quashed and set aside. The Tribunal shall make an endeavour to decide
the appeal as early as possible and preferably on or before 31st March,
2017, by giving an opportunity of hearing to the respective parties.
12.
The petition stands disposed of in the aforesaid terms. Rule is
accordingly made absolute.
JUDGE
*rrg.
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C E R T I F I C A T E
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