Bombay High Court
Chandrakant Dashrath Bharambe vs Chairman, Railway North Colony ... on 2 March, 2017
Bench: R.V. Ghuge
(1) W.P. No. 04707 of 1997
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 04707 of 1997
District : Jalgaon
Shri Chandrakant Dashrath Bharambe,
At & Post Bamnod,
Taluka Yawal,
District Jalgaon. .. Petitioner.
versus
1. Chairman,
Railway North Colony
Education Society,
Bhusawal,
Taluka Bhusawal,
District Jalgaon.
2. Head Master,
Railway North Colony,
Vidya Mandir, Bhusawal,
Taluka Bhusawal,
District Jalgaon.
3. Education Officer (Secondary),
Zilla Parishad, Jalgaon. .. Respondents.
...........
Mr. L.V. Sangit, Advocate, for the petitioner.
Mr. S.R. Barlinge, Advocate, for respondent
nos.01 and 02.
Mr. S.N. Kendre, Asst. Government Pleader, for
respondent no.03.
...........
CORAM : RAVINDRA V. GHUGE, J.
DATE : 02ND MARCH 2017
(2) W.P. No. 04707 of 1997
ORAL JUDGMENT :
01. The petitioner - original appellant is
aggrieved by the judgment of the School Tribunal,
Nasik Region, Nasik, dated 23.06.1997, by which his
Appeal No. 048/1995 has been dismissed.
02. This petition was admitted by this Court on
17.06.1998 and interim relief was refused.
03. I have heard the learned Advocates for the
respective sides at length. With their assistance, I
have gone through the record available.
04. The petitioner - appellant had approached
the School Tribunal upon his termination from service
on 09.10.1995. His first appointment order dated
25.11.1993 was as an Asst. Teacher for the academic
year 1993-94. In effect, he was allocated work for
05 months after his appointment till the end of the
academic year on 30.04.1994.
05. As advertisement was published by the
management for appointing an Asst. Teacher, the
qualification mentioned was S.S.C.,D.Ed. The date of
interview was 22.05.1994. The petitioner has
acquired the qualification of S.S.C.,D.Ed. Pursuant
to the said advertisement, the petitioner had applied
and upon being selected, he was served with an
appointment order dated 30.05.1994. Clause 1 of the
said appointment order mentions that he was appointed
(3) W.P. No. 04707 of 1997
on permanent basis. Nowhere in the appointment
order, has it been mentioned that the petitioner was
appointed as a probationer for any particular period.
In fact, the appointment order clearly indicates that
he is appointed with effect from 01.06.1994. A
particular scale was prescribed and it was a
permanent appointment.
06. The grievance of the petitioner is that the
management claimed before the Tribunal that he was
issued with another appointment order dated
16.06.1995 by which he was informed that his
appointment is for only one academic year 1995-96 and
after conclusion of the academic year, he would stand
disengaged by efflux of time. It is further
submitted that copy of this appointment order was
never served on the petitioner and the respondent -
management cannot indicate from any record having
probative value, that he was served with the said
appointment order.
07. The case of the petitioner is that the Head
Master had asked for illegal gratification which he
had refused to pay. The Head Master, therefore,
threatened him that he would mar his service record
and would ensure that such circumstances would be
created by which he would be thrown out of
employment.
08. The respondent had taken a stand before the
Tribunal that the petitioner was never appointed on
(4) W.P. No. 04707 of 1997
permanent basis. There is no provision to appoint
him directly as a permanent employee. Even if it is
presumed that he was appointed for one or two years,
or even if the tenure of employment is not mentioned
in the appointment order dated 30.05.1994, the law
requires that every new appointee has to undergo a
probation period of two years. The termination of
the petitioner on 09.10.1995 can, therefore, be said
to be a termination during the probationary period.
It is, therefore, submitted that the School Tribunal
rightly concluded that the petitioner was appointed
on temporary basis and as such, his termination at
best could be said to be termination of a probationer
from service.
09. In the light of the submissions of the
learned Advocates and the record available, I find
that there is no explanation forthcoming from the
respondent - management as regards the issuance of
the appointment order dated 16.06.1995 in the
backdrop of the appointment order dated 30.05.1994.
An advertisement was published and pursuant to which
the petitioner had applied and had undergone a
selection process on 22.05.1994. The management was
not precluded from placing the petitioner under
probation for 02 years by the appointment order dated
30.05.1994. It is categorically stated in the
appointment order that he has been appointed on
permanent basis after following the procedure of
selection. It is also stated that if the School gets
grants in aid, the regular salary of the petitioner
(5) W.P. No. 04707 of 1997
would be paid.
10. So also, considering the contention of the
petitioner, that the appointment order dated
16.06.1995 was never served upon him, it was for the
respondent - management, who had come up with a copy
of the said order, to indicate from the record that
it was served on the petitioner and he had accepted
the new appointment order without any murmur or
protest. No such evidence is pointed out inasmuch as
the School Tribunal has also not concluded that the
subsequent appointment order dated 16.06.1995 is
shown to have been served on the petitioner.
11. There can be no dispute that the complaints
cited by the respondent before the Tribunal as well
as this Court were not referred to in the termination
order dated 09.10.1995. However, there is a
reference of two documents in the order of
termination indicating that the Governing Council of
the Educational Society had discussed the case of the
petitioner in its meeting dated 08.10.1995 and
thereafter a resolution was passed to terminate the
services of the petitioner. The fact that the said
resolution is not placed on record before the
Tribunal or this Court would indicate by way of an
inference that there could be a possibility that the
management has discussed the complaints against the
petitioner in the said meeting of the Governing
Council and then resolved to terminate his services.
(6) W.P. No. 04707 of 1997
12. Even if the above issue is ignored, the fact
remains that once the management has issued a
permanent appointment order to the petitioner on
30.05.1994, it cannot revoke the said order after one
year. So also, the management has not factually
revoked the said order and has attempted to frustrate
the rights of the petitioner by issuing another
appointment order dated 16.06.1995, converting his
permanent appointment into a temporary appointment.
This cannot be permitted and it is apparent that the
School Tribunal has failed to notice this aspect. In
fact, the impugned order indicates that the School
Tribunal never applied mind to this aspect of the
matter. In my view, had the School Tribunal assessed
these facts properly, it could have concluded that
the management was precluded from converting the
permanent service of the petitioner into a temporary
appointee.
13. The events that have occurred pursuant to
the termination of the petitioner cannot be ignored.
After his termination on 09.10.1995, the petitioner
is not in employment for more than 21 years. Having
worked for a period of 05 months pursuant to the
order dated 25.11.1993 and then for a period of about
01 year and 04 months, which would make 02 years
service span of the petitioner, which was followed by
unemployment for 21 years. In this backdrop and
considering the fact that this Court refused interim
relief to the petitioner, it cannot be ruled out that
the respondent - management would have appointed a
(7) W.P. No. 04707 of 1997
new Teacher in his place who may have been working
for the past two decades.
14. In these circumstances, though I conclude
that the termination of the petitioner is
unsustainable for the reasons set out herein above,
it would not be practicable to reinstate the
petitioner after a span of 21 years when he had
worked only for 02 years. In this fact situation, I
find it appropriate to rely on Section 11(2)(e) of
the Maharashtra Employees of Private Schools
(Conditions of Service) Regular Act, 1977 [For short,
"MEPS Act"] and grant 06 months' salary with all
allowances by way of compensation in lieu of
reinstatement and all consequential benefits.
Section 11(2)(e) of the MEPS Act reads as under :-
"Powers of Tribunal to give appropriate relief and direction.
(1) ....................................................................................
(2) Where the Tribunal, after giving reasonable opportunity
to both parties of being heard, decides in any appeal that
the order of dismissal, removal, otherwise termination of
service or reduction in rank was in contravention of any law
(including any rules made under this Act), contract or
conditions of service for the time being in force or was
otherwise illegal or improper, the Tribunal may set aside the
order of the Management, partially or wholly, and direct the
Management,-
(a) .....................................................................
(b) .....................................................................
(8) W.P. No. 04707 of 1997
(c) .....................................................................
(d) .....................................................................
(e) where it is decided not to reinstate the
employee or in any other appropriate case, to give
the employee twelve months' salary (pay and
allowances, if any) if he has been in the services of
the school for ten years or more and six months
salary (pay and allowances, if any) if he has been
in service of the school for less than ten year, by
way of compensation, regard being had to loss of
employment and possibility of getting or not
getting suitable employment thereunder, as it may
specify; or
(f) ....................................................................."
15. In the light of the above, this petition is
partly allowed. The impugned judgment of the School
Tribunal dated 23.06.1997 is modified. Appeal No.
048/1995 filed by the petitioner is partly allowed.
By setting aside his termination dated 09.10.1995, I
am directing respondent no.01 - management to pay
compensation of 06 (six) months' salary along with
all allowances as per the Vth Pay Commission
recommendations, along with interest at the rate of
06 % (six percent) per annum from the date of the
judgment of the School Tribunal, which is 23.06.1997.
The said amount along with interest shall be
deposited by the respondent - management, in this
Court, within a period of six weeks from today.
16. Needless to state, after the respondent -
(9) W.P. No. 04707 of 1997
management deposits the amount, the petitioner would
be permitted to withdraw the said amount without
conditions by filing an application duly identified
by the learned Advocate along with tangible identity
proof of the petitioner in the form of a photo-copy
of the Election Commission's Voter Card.
17. Rule is made partly absolute in the above
terms.
( Ravindra V. Ghuge )
JUDGE
...........
puranik / WP4707.97
