Shramik Shikshan Mandal ... vs State Of Mahaharashtra And Anr
2017 Latest Caselaw 2432 Bom

                                                          WP/115/1998/Group
                                        1

                IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                           BENCH AT AURANGABAD

                          WRIT PETITION NO. 115 OF 1998

 1.       Shramik Shikshan Mandal
          (A Public Trust registered under
          the Bombay Public Trusts Act),
          A/p-Parsamal, Tq. Sindkheda,
          Dist. Dhule, through its President.

 2.       Pujya Sane Guruji Madhyamik Vidyalaya,
          Chougaon, Tq. Sindkheda, Dist. Dhule.
          Through its Head Master.                         ...Petitioners.

                   Versus

 1.       The State of Maharashtra.

 2.       Jaysing S/o. Mithesing Girase,
          Age. 46 yrs, Occ. Teacher,
          R/o. Parsamal, Tq. Sindkheda,
          Dist. Dhule.

 3.       Backward Classes Cell,
          Commissioner's Office,
          Nasik, Division Nasik.

 4.       Education Officer,
          Zilla Parishad,
          Dhule, District Dhule.                           ...Respondents.

                                       WITH
                          WRIT PETITION NO. 119 OF 1998

 1.       Shramik Shikshan Mandal
          (A Public Trust registered under
          the Bombay Public Trusts Act),
          Tq. Sindkheda, Dist. Dhule,
          through its President.

 2.       Pujya Sane Guruji Madhyamik Vidyalaya,
          Chougaon, Tq. Sindkheda, Dist. Dhule.
          Through its Head Master.                         ...Petitioners.

                   Versus




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                                                           WP/115/1998/Group
                                        2

 1.       The State of Maharashtra.

 2.       Sattarsing S/o. Chandrasing Girase,
          Age. 28 yrs, Occ. Service,
          R/o. Virdel, Tq. Sindkheda,
          Dist. Dhule.

 3.       Backward Classes Cell,
          Commissioner's Office,
          Nasik, Division Nasik.

 4.       Education Officer,
          Zilla Parishad,
          Dhule, District Dhule.                           ...Respondents.

                                       WITH
                          WRIT PETITION NO. 128 OF 1998

 1.       Shramik Shikshan Mandal
          (A Public Trust registered under
          the Bombay Public Trusts Act),
          Tq. Sindkheda, Dist. Dhule,
          through its President.

 2.       Pujya Sane Guruji Madhyamik Vidyalaya,
          Chougaon, Tq. Sindkheda, Dist. Dhule.
          Through its Head Master.                         ...Petitioners.

                   Versus

 1.       The State of Maharashtra.

 2.       Bhimsing S/o. Bhagwansing Girase,
          Age. 36 yrs, Occ. Teacher,
          R/o. Bhade, Tq. Sindkheda, Dist. Dhule.

 3.       Backward Classes Cell,
          Commissioner's Office,
          Nasik, Division Nasik.

 4.       Education Officer,
          Zilla Parishad,
          Dhule, District Dhule.                           ...Respondents.


                                       ...




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                                                             WP/115/1998/Group
                                        3

                     Advocate for Petitioners : Shri P.R.Patil
                   AGP for Respondent 1 & 4 : Shri S.S.Daund
                 Advocate for Respondent 2 : Ms. Pradnya Talekar
                               h/f Shri S.B.Talekar
                                        ...

                          CORAM : RAVINDRA V. GHUGE, J.

Dated: May 09, 2017 ...

ORAL JUDGMENT :-

1 These three petitions have been admitted by this Court on

17.2.1998 and by a common interim order, interim relief was granted

to the petitioner / management, by which the impugned judgments

in favour of the respondent No.2 / employees in all these matters

were stayed. Consequentially, all these respondents / employees

(hereinafter referred to as the "appellants") were kept out of

employment from April 1993.

2 I have heard the submissions of the learned counsel for the

petitioner / management and the original appellants in extenso.

3 Learned counsel on behalf of the appellants has cited the

following reported judgments.

i. Jagbir Singh Vs. Haryana State Agriculture Marketing Board [(2009) 15 SCC 327],

ii. Assistant Engineer, Rajasthan Development Corporation and another Vs. Gitam Singh [(2013) 5 SCC 136],

iii. BSNL Vs. Man Singh [(2012) 1 SCC 558],

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iv. Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota Vs. Mohan Lal [2013 LLR 1009],

v. Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others [(2013) 10 SCC 324],

vi. M/s Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd. - (1979) 2 CC 80,

viii. Murari Mohan Deb Vs. Secretary to the Government of India - (1985) 3 SCC 120,

ix. Educational Society Tumsar Vs. State of Maharashtra - (2016) 3 SCC 512,

x. St.Ulai High School Vs. Shri Devendraprasad Jagannath, [2007(109) Bom.L.R. 60 = 2007(1) Mh.L.J. 597],

xi. Manorma Verma Vs. State of Bihar - 1994 Supp (3) SCC 671,

xii. Shri Bhagwan Mahavir Primary School Vs. Presiding Officer - 2014 (3) Mh.L.J. 161,

xiii. Matoshri Ramabai Ambedkar Vidyarthi Vasatigruh Vs. Bharat D. Hambir - 2008 BCI 1 and

xiv. Sayyed Maksood Ali Sayyed Roshid Ali Vs. Uruj-E-Urdu Education Society - 2011 (4) Mh.L.J. 952.

4 For the sake of clarity, the details about the services of the

appellants in these three petitions are as under:-

(i) Appellant Jaysing Girase is B.A., B.Ed.

(ii) Appellant Sattarsingh was a Peon and no qualifications were prescribed.

WP/115/1998/Group

(iii) Appellant Bhimsingh Girase is B.A., B.P.Ed.

(iv) Appellant Jaysingh was initially appointed as an Assistant Teacher on 1.7.1989. He was then appointed as an in- charge Head Master in between 1991 and 1992. He was again appointed as an Assistant Teacher for the academic year 1992-

93.

(v) Appellant Satarsingh was appointed as a Peon on 1.3.1990. He is said to be terminated on 1.4.1991 and again appointed for one year upto 1992. He is said to be terminated on 1.4.1992 and yet again appointed for the year 1992-93.

(vi) Appellant Bhimsingh was initially appointed as an untrained Teacher on 15.10.1987. He is said to have left the services in 1989. In 1990, he was again appointed as an untrained Teacher and terminated on 1.4.1991. For the academic years 1991-92 and 1992-93 he was appointed as an Assistant Teacher.

5 The cause of action for these three appellants arose on

account of the refusal of the petitioner in granting them an

appointment order for the academic year 1993-94. They approached

the School Tribunal by filing Appeal Nos.36, 37 and 38 of 1993. It was

contended that the management prevented them from reporting for

duties on 12.6.1993 which was the beginning of the academic year

1993-94.

WP/115/1998/Group

6. The appeals were initially allowed ex-parte when the

petitioner / management did not cause it's appearance despite the

service of Court notice. By judgment dated 7.1.1995, these

appellants were granted reinstatement with continuity and

backwages by the School Tribunal. The petitioner / management

approached this Court in Writ Petition Nos.1081 to 1983 of 1996.

Suffice it to say that the matter was remanded by this Court on the

condition of payment of Rs.25,000/- to each of the appellants for

remanding the matter. Ultimately, by the impugned judgment, dated

29.9.1997, all the appeals were allowed under Section 9 of the

Maharashtra Employees of Private Schools (Conditions of Service)

Regulation Act, 1977 ("the MEPS Act" for short) and the appellants

were granted reinstatement with continuity and 50% backwages.

7 After these matters were before this Court, the impugned

judgments were stayed. Eventually the matter reached the

Honourable Apex Court and each of these appellants were granted

Rs.25,000/- towards continuing the stay to the impugned judgment.

Consequentially, all these appellants have been out of employment

for the past about 24 years.

8 Shri Patil, learned counsel for the petitioner / management

has primarily canvassed the following points:-

WP/115/1998/Group

(i) None of these appellants have been granted regularization, were not in regular employment and hence have no right to employment.

(ii) None of these appellants were granted approval by the Education officer and hence they could not be continued in employment.

(iii) Each of these appellants have resigned voluntarily by resignation letter dated 20.4.1993, which were accepted on 22.4.1993.

(iv) Each of these appellants were appointed de-hors the reservation and considering the backlog, they could not be continued in employment as they did not belong to the reserved categories.

9 Learned counsel for the appellant has pointed out from the

impugned judgment that the theory of reservation putforth by the

management was an attempt to mis-lead the School Tribunal and the

Tribunal has accordingly concluded that the said attempt was only to

defeat the claim of the appellants. She further points out that the

petitioner / management has no where challenged the manner of

appointment of the appellants, their qualifications for being eligible

to appointment and the legality of their appointments. She points

out from the record that the petitioner / management had never

taken up these grounds. She hastens to add that the appellant

Sattarsingh was a Peon and no qualification was prescribed Both the

WP/115/1998/Group

other appellants were having requisite qualifications and hence,

there was no issue about their eligibility to be appointed.

10 After considering the submissions of the learned counsel for

the respective sides and upon going through the record, I find that

the management has taken a peculiar stand at the initiation of the

process for terminating the services of these appellants. It was stated

by the management that the School record of the X standard

examination had plunged and consequentially, the dismal

performance of the students indicated that the two appellants, who

are Teachers, could be said to be responsible for the debacle of the

School's performance. Surprisingly, even Sattarsingh who is a Peon

was said to be responsible for the bad performance of the X Standard

students.

11. It cannot be appreciated that a Class IV Peon could have any

contribution for lifting the performance of the X Standard students.

Moreover, the record reveals that the students have failed badly in

the English subject and none of the two appellants / Teachers ever

imparted education in the English subject. One was a History

teacher and another was a Geography teacher. In this backdrop, I do

not find that the impugned judgment could be termed as perverse or

erroneous, when the bad result of the X standard examination was

exclusively on account of the bad performance in the English subject.

WP/115/1998/Group

12 The petitioners have also taken a stand that one of the

appellants - Jaysingh Girase - was an in-charge Head Master and he is

responsible for the bad performance. This aspect has also been dealt

with by the School Tribunal, since in the academic year preceding

the disengagement of the said appellant, he was an Assistant

Teacher.

13 The petitioners have taken a stand that these appellants have

resigned voluntarily since they were given a notice of termination

dated 15.1.1993. They were also given a show cause notice on

31.12.1992.

14 The School Tribunal has dealt with this aspect of resignation.

All the resignations are identical, in a typed form and carrying the

same date 20.4.1993. A resolution is said to have been passed by the

petitioner / management accepting the resignation letters within 48

hours on 22.4.1993. There is no evidence of convening the meeting

for acceptance of the resignations.

15 Section 7 of the MEPS Act clearly provides that an employee

who intends to resign from his post, shall draw up a letter of

resignation in duplicate and sign both the copies of that letter by

putting a date thereon. One copy is to be forwarded to the

WP/115/1998/Group

management by registered post. Rule 40 of the Maharashtra

Employees of Private Schools (Conditions of Service) Rules, 1981

("MEPS Rules" for short) mandates three months notice for

acceptance of resignation in case of a permanent employee and one

month's notice in case of a temporary employee.

16 As such, the issue would be as to whether these appellants,

who have not been granted approval and orders of confirmation,

could be said to be permanent employees. Section 5(2) of the MEPS

Act reads as under:-

"Section 5 - Certain obligations of Management of private schools.

(1) .........................

(2) Every person appointed to fill a permanent vacancy except shikshan sevak shall be on probation for a period of two years. Subject to the provisions of sub-sections (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed :

Provided that, every person appointed as shikshan sevak shall be on probation for a period of three years."

17 The learned Full Bench of this Court in the matter of St. Ulai

(supra), has concluded that lack of approval or refusal of approval to

WP/115/1998/Group

the appointment of an employee cannot be a ground for terminating

his services and cannot be an impediment for his continuation in

services. It was established before the Tribunal that though the

management has shown gaps in employment of these appellants only

for the period of summer vacations, they were artificial break and

since the summer vacations need to be computed while considering

the length of service, the Tribunal concluded that these appellants

were deemed to be permanent employees since the Assistant

Teachers have worked for about 4 years and the Peon had worked for

about 3 years.

18 When these appellants were legally qualified to be appointed

and the petitioner / management had appointed them on year to

year basis and had continued them for the period mentioned above,

the Tribunal in my view, has rightly concluded that they are deemed

permanent employees.

19 In this backdrop, by relying upon Section 7 of the MEPS Act and

Rule 40 of the MEPS Rules, the Tribunal has concluded that the

acceptance of resignation was in violation of these provisions and

hence were unsustainable.

20 I have gone through the resignation letters and the resolutions

claimed to have been passed by the petitioners for accepting the said

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resignations. There is no dispute that these three resignation letters

are identical, all are typed out and they bear the signatures of these

appellants at the bottom of the page. The appellants have contended

that they have not submitted these resignations. Nevertheless, these

resignations have been accepted within 48 hours and the factum of

convening a special meeting of the Governing Council of the

petitioner and passing of such resolution for accepting such

resignations, was not proved by the management.

21 This case takes a curious turn on account of the fact that the

management has never conveyed to these appellants their decision of

acceptance of resignation and the dates on which they are being

relieved. These documents have seen the light of the day only after

this Court remanded the matter back to the Tribunal by setting aside

the exparte judgments and on imposing costs upon the petitioners.

Until that moment these appellants have never received any

communication as regards the acceptance of resignation. So also no

such document was placed before the Tribunal to show that the

acceptance of resignation was conveyed to the appellants and that

they have received such communication. In this backdrop, I do not

find that the conclusions drawn by the Tribunal on the facts of these

cases could be termed as being perverse or erroneous.

22 In so far as the contention of the petitioner / management

WP/115/1998/Group

that these three positions occupied by the appellants were reserved

for backward classes is concerned, the Tribunal has concluded that a

false case was put up by the management. Learned counsel for the

petitioner has strenuously tried to impress this Court that these

appellants did not deserve to continue in employment because of the

backlog of the reserved categories, being seen from the record. It is

stated that the B.C. cell of the Education Department has confirmed

the backlog.

23 I find that this eventuality has occurred much after the

disengagement of the appellants. The documents placed on record

were disbelieved by the School Tribunal. I find that the

advertisement published by the petitioner / management, which is

referred to in paragraph No.9 of the impugned judgment does not in

any manner indicate that the posts on which these appellants were

appointed, were subject to any backlog of reservation. The

appointment orders also do not indicate this aspect. Proposals for

approval were not sent by the management to the Education

Department, which indicates the conduct of the management of

deliberately suppressing the proposals so as to keep the appellants

temporary. The conduct of the management of appointing these

appellants for each academic year and terminating them at the

stroke of the summer vacation and suppressing their appointments

from the Education Officer, would establish apparent unfair and

WP/115/1998/Group

malafide conduct of the management.

24 Notwithstanding the above, if at all there was any backlog, the

petitioner could have done away with the said backlog by ensuring

that future appointments are made from the reserved categories.

Considering these aspects, I find that the conclusion of the Tribunal

in paragraph Nos.9 and 10 of the impugned judgment that the

management had tried to mis-direct the Tribunal, does not appear to

be perverse or vitiated.

25 The petitioners vehemently contend that these three

appellants have again applied in 1993 for reemployment in the

academic year 1993-94 and hence, by their conduct it needs to be

inferred that they have accepted their termination. I find this to be

yet another attempt of the management for misdirecting this Court.

The modus operandi of the management was to disengage the

appellants, to terminate them after every academic year at the

stroke of vacations and compel them to apply for a fresh

appointment. This was to create a picture that they are reapplying

for appointment. These practices of the management have been

tested in law over several decades and have been termed as artificial

breaks (H.D.Singh Vs. Reserve Bank of India - (1985) 4 SCC 201 and

State of Haryana Vs. Piara Singh (3 Judges Bench) (1992) 4 SCC 118.)

This contention therefore, needs to be rejected instantly.

WP/115/1998/Group

26 Issue before this Court is that in the light of the interim orders

of this Court and the orders of the Honourable Apex Court, the

impugned judgment was stayed and these appellants have been out

of employment for 24 years. Appellant Jaysingh has attained the age

of superannuation in 2008, having put in 4 years of service.

Appellant Bhimsingh has put in 6 years in service and would be

attaining the age of superannuation in 2019. Appellant Sattarsingh

worked for 3 years as a Peon and his retirement would be in 2027.

The Tribunal has granted reinstatement with continuity and 50%

backwages to all these appellants.

27 I have considered the judgments cited by the learned counsel

for the appellants. In the matter of Deepali (supra), the Honourable

Apex Court has granted 100% backwages with reinstatement and

continuity. None of these appellants have challenged the denial of

50% backwages by the School Tribunal. Considering the unfair

conduct of the management and the pendency of this litigation, for

which these appellants cannot be faulted and it is merely a matter of

their destiny, I find that the appellant Sattarsingh can be reinstated

in service with continuity and 50% backwages, as on the date of this

judgment. He would consequentially be able to work for ten years

and support himself and his family.

WP/115/1998/Group

22 Section 11(e) and (f) of the MEPS Act read as under:-

"Section 11 - Powers of Tribunal to give appropriate reliefs and directions.

          (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)         ..............................
                           (c)         ..............................
                           (d)         ..............................
                           (e)         where it is decided not to reinstate the

employee or in any other appropriate case, 1[to give to the employee twelve months' salary (pay and allowances, if any) if he has been in the service 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 years], by way of compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment

WP/115/1998/Group

thereafter, as it may specify; or

(f) to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case. ................"

29 Appellants Jaysing and Bhimsingh who are Assistant Teachers

and have not been in the teaching profession for 24 years as they

have claimed to be unemployed, I do not find that any purpose would

be served in reinstating appellant Bhimsingh who has only 2 academic

years prior to his retirement. Appellant Jaysingh has already

attained the age of superannuation in 2008. In this backdrop, I find

that the impugned judgment of the Tribunal, by which reinstatement

is impossible with appellant Jaysing and impracticable with appellant

Bhimsingh, needs to be modified. Considering the conduct of the

petitioner / management, I deem it appropriate to exercise

jurisdiction under Section 11(2)(f) by which, other reliefs in lieu of

resintatment can be granted to the two appellants having regard to

the circumstances of the case.

30 These petitions are, therefore, partly allowed. The impugned

judgment to the extent of grant of reinstatement with continuity and

50% backwages in the case of appellant Jaysing is modified and he

will stand entitled to continuity of service with all retiral benefits till

his age of superannuation, which is 2008. His 50% backwages shall be

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computed till the age of retirement on the basis of the gross salary

payable as per the different Pay Commission's recommendations

applicable from time to time.

31 Similarly, the directions of the Tribunal in favour of appellant

Bhimsingh shall stand modified and he shall be granted continuity in

service with 50% backwages and the date of judgment of this Court

would be the date of his superannuation for the purposes of

calculating his retiral benefits.

32 Learned counsel for the appellants Bhimsingh and Jaysingh

submits on instructions that the said directions are acceptable to

them.

33 The petitioner / management shall, therefore, calculate the

backwages of all these appellants and ensure payment of the said

amounts from the funds of the management within a period of 12

weeks from today, failing which these amounts shall carry interest at

the rate of 6% per annum from the date of the impugned judgment of

the Tribunal. Similarly, the gratuity amounts payable to the two

appellants shall also be paid by the petitioners in the above

mentioned time frame and subject to the same direction for interest

in case of delay.

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34 Their proposals for retiral benefits shall be forwarded by the

petitioner / management within eight weeks from today. Payment of

backwages to appellant Sattarsingh will be in the light of the above

directions / time frame and interest, if payment is delayed, as like

the other two appellants, shall be payable. Sattarsingh shall be

reinstated by the petitioners within eight weeks from today.

35 Rule is made partly absolute in the above terms.

( RAVINDRA V. GHUGE, J. )

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