Bombay High Court
Azaz Kibriya Khan S/O. Maqsoodali ... vs Tanvir Ahmed Khan Shabbir Khan And ... on 6 April, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1078 OF 2016
Azaz Kibriya Khan s/o Maqsoodali Khan,
Aged 55 years, Occ. - Agriculturist,
R/o Malkapur, Tq. Malkapur,
District Buldhana. .... PETITIONER
VERSUS
1) Tanvir Ahmed Khan Shabbir Khan,
Aged 30 years, Occ. - Service,
R/o Dhangarpura, Parpeth,
Ward No.10, Near Nadi Kiara,
Malkapur, Post - Malkapur, District
Buldhana.
2) Masumiya Urdu Education Society,
through its President, Adilabad Road,
Near Panchayat Samiti, Malkapur,
Tq. Malkapur, District Buldhana.
3) Z.A. Urdu High School,
Malkapur, through its Headmistress,
Tq. Malkapur, District Buldhana.
4) Education Officer (Secondary),
Zilla Parishad, Buldhana. .... RESPONDENTS
______________________________________________________________
Shri S.R. Deshpande, Advocate for the petitioner,
Shri V.K. Paliwal, Advocate for the respondent No.1,
Shri P.S. Girdekar, Advocate for the respondent Nos.2 and 3,
Shri Bhagwan M. Lonare, A.G.P. for the respondent No.4.
______________________________________________________________
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CORAM : Z.A. HAQ, J.
DATED : 6
APRIL, 2017.
th
ORAL JUDGMENT :
Heard Shri S.R. Deshpande, Advocate for the petitioner,
Shri V.K. Paliwal, Advocate for the respondent No.1, Shri
P.S. Girdekar, Advocate for the respondent Nos.2 and 3 and Shri
Bhagwan M. Lonare, Assistant Government Pleader for the respondent
No.4.
2. The respondent No.1 has filed appeal under Section 9 of
the Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 (hereinafter referred to as the "Act of 1977")
challenging the termination of his services and praying for
consequential reliefs. In this appeal, the society through its President,
the school through its Head Mistress and the Education Officer are
impleaded as the respondents. In the appeal, the petitioner filed an
application (Exhibit No.36) seeking permission to participate in the
proceedings as respondent. This application (Exhibit No.36) is
dismissed by the impugned order.
3. The contention of the petitioner is that there is a dispute
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regarding management of the school and two different groups are
claiming the right to administer the school. According to the
petitioner, the person who has issued the order of termination posing
himself to be the Chief Executive Officer has no authority to issue the
termination order. In paragraph No.3 of the application (Exhibit
No.36), the petitioner made a specific statement that he had filed
Change Report No.252/2000 which is decided by the Assistant Charity
Commissioner on 14-05-2015 and against this order an appeal is
pending. The statement is made on oath. The Advocate for the
respondent No.1 has pointed out that Change Report No.252/2000
was filed on behalf of the society (Trust) through Rashidkha Yusufkha
Jamadar and the present petitioner was non-applicant No.1 in Change
Report No.252/2000. The facts recorded in paragraph No.2 of the
order passed in Change Report No.252/2000 on 14-05-2015 show
that according to the reporting trustee i.e. Rashidkha Yusufkha
Jamadar, the trustees held election and a resolution was passed on
12-04-2000 that Rashidkha Yusufkha Jamadar was elected as President
of the Trust. The petitioner has not been able to show how the filing
of Change Report No.252/2000 and the order passed on it is relevant
for considering the application (Exhibit No.36) filed by the petitioner.
Apart from this, the petitioner has not placed anything on record to
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substantiate his contention that he is concerned with the affairs of the
Trust and administration of the school and he is a necessary or proper
party to the appeal filed by the respondent No.1 before the School
Tribunal.
4. Under the scheme of the Act of 1977 and the Rules framed
under it, the School Tribunal is not required to delve into inter se
disputes of the trustees. The trustees individually cannot be permitted
to raise the issues regarding administration of the school. Under the
scheme of the Act of 1977 and the Rules framed under it, the decisions
regarding imposing/inflicting punishment on the employees is to be
taken by the management of the school. The "management" is defined
under Section 2(12) of the Act of 1977 as follows :
"Management", in relation to a school, means,
(a) In the case of a school administered by the State
Government, the Department;
(b) in the case of a school administered by local authority, that
local authority; and
(c) In any other case, the Person, or body of persons, whether
incorporated or not and by whatever name called,
administering such school: "
Thus the decision of terminating the services of the
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employees is required to be taken by the management i.e. the person,
or body of persons administering the school. As per Rule 36(1) of the
Maharashtra Employees of Private Schools (Conditions of Service)
Rules, 1981 (hereinafter referred to as the "Rules of 1981"), in case of
an employee other than the head of the school if the management
decides to hold an enquiry, the Chief Executive Officer authorised by
the management has to act as per the various provisions of Rule 36 of
the Rules of 1981. The scheme of the Act of 1977 and the Rules
framed under it do not recognise the right of individual trustee to seek
audience before the Tribunal in appeal under Section 9 of the Act of
1977 and if it is permitted, the Tribunal will have to decide the inter se
disputes amongst the trustees/office bearers of the society (Trust)
which jurisdiction is not conferred on the Tribunal. The issue as to
who is in control of the affairs of the public Trust falls within the
jurisdiction of the authorities under the Maharashtra Public Trusts Act,
1950. The Tribunal while considering the appeal filed by the
employee under Section 9 of the Act of 1977 is required to only
examine the legality of the termination order. The appellant before
the School Tribunal will have to discharge the preliminary burden of
asserting that the termination order challenged by him in appeal is
illegal having not been issued by the competent authority and then the
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management which is impleaded as respondent in the appeal will have
to discharge its burden of refuting the claim of the appellant
(employee).
5. In view of the above, I find that the claim of the petitioner
that he is necessary party or in any case proper party to the appeal is
not only legally unsustainable but as recorded earlier on facts also the
petitioner has not been able to show that the appeal filed by the
respondent No.1 cannot be decided in the absence of the petitioner.
6. In view of the above, the petition is dismissed and the
application (Exhibit No.36) is rejected. This application (Exhibit
No.36) appears to have been filed in October 2015 and then after its
rejection by the Tribunal this petition is filed and because of the
interim order passed in this petition the proceedings of appeal filed by
the respondent No.1 before the Tribunal are stayed. The effect is that
the proceedings of appeal filed by the respondent No.1 before the
Tribunal are protracted and hearing is delayed by 17 months. In view
of the above and as it is found that the petitioner has not been able to
justify his claim as made in the application (Exhibit No.36), the
petitioner shall pay costs of Rs.25,000/- by demand draft to the
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respondent No.1, within one month and file an affidavit alongwith
receipt showing the payment of costs before the Assistant Charity
Commissioner, Buldhana Region, Buldhana. If the receipt showing
payment of costs as per this order is not produced by the petitioner
before the Assistant Charity Commissioner within one month, the
Assistant Charity Commissioner shall pass appropriate orders against
the petitioner in the proceedings pending before him, treating it to be
disobedience of the order passed by this Court.
JUDGE
adgokar
