Uma Pandurang Mantri vs The State Of Maharashtra And Ors
2017 Latest Caselaw 9170 Bom

                                                              W.P. No.6739/2006
                                      (( 1 ))


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                    WRIT PETITION NO.6739 OF 2006 WITH
                    CIVIL APPLICATION NO.10689 OF 2011


 Uma d/o Pandurang Mantri,
 Age 40 years, Occ. Service,
 R/o Signal Camp, Latur,
 Taluka and District Latur                      ...      PETITIONER

          VERSUS

 1.       The State of Maharashtra
          through its Secretary,
          School Education Department,
          Mantralaya, Mumbai

 2.       The Deputy Director of Education,
          Latur Division, Latur.

 3.       The Deputy Director of
          Vocational Education and Training,
          Aurangabad Region, Aurangabad

 4.       Dayanand Education Society,
          Latur, Tq. and District Latur,
          through its Secretary

 5.       Dayanand Science College,
          Latur, Tq. and Dist. Latur,
          through its Principal

 6.       The Principal,
          Vaidyanath College, Parli Vaijanath
          Tq. Parli Vaijanath,
          District Beed.

 7.       Jawahar Education Society,
          Parli Vaijanath,
          through its Secretary
          Shri Dattatraya Ganpatappa Itke
          Age 60 years, Occ. Agri.,
          R/o Parli Vaijanath, District Beed. ...        RESPONDENTS



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                                                             W.P. No.6739/2006
                                    (( 2 ))


                                .....
 Shri V.D. Gunale, Advocate for petitioner
 Mrs. V.S. Choudhary, A.G.P. for respondent Nos.1 to 3
 Mrs. Anjali B. Dube, Advocate for respondent Nos.4 and 5
 Shri V.V. Bhavthankar, Advocate for respondent No.6
                                .....

                                    WITH

                         WRIT PETITION NO.581 OF 2005


 1.       The Secretary,
          Dayanand Education Society,
          Latur, Tq. and District Latur.

 2.       The Principal,
          Dayanand Science College,
          Latur, Tq. and District Latur.      ...      PETITIONERS

          VERSUS

 1.       Uma d/o Pandurang Mantri,
          Age 36 years, Occ. Nil.
          R/o Signal Camp, Latur,
          Taluka and District Latur

 2.       The Director of Vocational Education
          and Training,
          Aurangabad Region, Aurangabad

 3.       The Deputy Director of Vocational
          Education and Training,
          Aurangabad Region, Aurangabad ...            RESPONDENTS

                                .....
 Mrs. Anjali B. Dube, Advocate for petitioners
 Shri V.D. Gunale, Advocate for respondent No.1
 Mrs. V.S. Choudhary, A.G.P. for State
                                .....

                                   WITH
                   CIVIL APPLICATION NO.8109 OF 2008 IN
                       WRIT PETITION NO.581 OF 2005

 Uma d/o Pandurang Mantri @
 Uma w/o Jugalkishor Jaju



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                                                              W.P. No.6739/2006
                                    (( 3 ))


 Age 40 years, Occ. Service (at present Nil),
 R/o Signal Camp, Latur,
 Taluka and District Latur               ...              APPLICANT

          VERSUS

 1.       The Secretary,
          Dayanand Education Society of
          Latur, Tq. and District Latur.

 2.       The Principal,
          Dayanand Science College,
          Latur, Tq. and District Latur.

 3.       The Director of Vocational
          Education & Training,
          Aurangabad Region, Aurangabad

 4.       The Deputy Director of Vocational
          Education & Training ,
          Aurangabad Region, Aurangabad ...               RESPONDENTS

                                .....
 Shri V.D. Gunale, Advocate for applicant
 Mrs. Anjali B. Dube, Advocate for original petitioners
 Mrs. V.S. Choudhary, A.G.P. for State
                                .....


                               CORAM:      RAVINDRA V. GHUGE AND
                                           SUNIL K. KOTWAL, JJ.

DATED : 29th NOVEMBER, 2017.

ORAL JUDGMENT (PER RAVINDRA V. GHUGE, J.):

1. The first Writ Petition has been filed by the employee,

who is the original appellant before the School Tribunal, putting

forth prayer clause 26(C) as under :

W.P. No.6739/2006 (( 4 ))

"(C) By issuing appropriate writ, order or directions, the impugned order passed by respondent Nos.4 and 5 dated 7.8.2006 retrenching the services of the petitioner, be quashed and set aside. Consequently, the petitioner be allowed to resume the duties in respondent No.5 College and she be paid her regular monthly salary."

2. The second petition has been filed by the

management, for challenging the judgment and order dated

25.11.2004, delivered by the School Tribunal, Solapur in Appeal

No.348/2004, filed by the appellant/ employee, by which the

original appellant has been granted reinstatement with continuity

and full back wages.

3. The first petition lies before this Court. The second

petition was to be considered by the learned Single Judge of this

Court. However, on the request motion of the parties, the

learned Administrative Judge of the Aurangabad Bench has

passed an order dated 27.9.2017, thereby listing the second

petition along with the first petition before this Court. It is in this

backdrop that we have considered both the petitions together

finally.

4. So far as the first petition is concerned, learned

counsel for the original appellant submits, on instructions, that

W.P. No.6739/2006 (( 5 ))

pursuant to the judgment of the Tribunal, granting reinstatement

in service, the appellant was reinstated and as there was no work

available, she was absorbed in another institute. Thereafter, she

applied for voluntary retirement and has now retired from service

on the basis of her application. Hence, the appellant does not

desire to prosecute the first petition, and the same can be

disposed of.

5. Insofar as the second petition is concerned, learned

counsel for the appellant submits that, if the management is

prosecuting the second petition, then the petitioner would not be

inclined to withdraw her petition, and the prayers set out in the

said petition will be pressed.

6. We find that, the second petition deserves to be

entertained first, as it pertains to the legality and validity of the

order of reinstatement of the appellant with continuity and full

back wages.

7. Learned counsel for the management in the second

petition, has strenuously criticised the impugned judgment of the

School Tribunal. The contention is that, the educational Trust,

which predominantly conducts colleges in the Arts, Science and

Commerce faculties, started a new course, which is by way of a

W.P. No.6739/2006 (( 6 ))

training course, termed as "Minimum Competency Vocational

Course (M.C.V.C.) in Electronic Technology, was started. The

minimum strength of the students for operating the said course

and for recognition, was 15. The appellant was appointed on

4.8.1989 and since then, had continued in service.

8. It is then stated that, as the strength of the students

fell below 15, the competent authority issued a notice to the

petitioner institution, dated 2.12.2002, indicating that, if the

strength of the students does not rise, the recognition of the said

institution would be discontinued and then, the payment of

wages/ salary of the employees would be the burden to be

shouldered by the educational institution. It is, therefore,

strenuously contended, on the basis of Rule 25-A of the

Maharashtra Employees of Private Schools (Conditions of

Service) Rules, 1981 that the employer is obliged only to issue a

notice of three months to the employees of such institution,

which is to be closed down on account of the direction of the

Department.

9. It is then contended that, the management issued a

notice dated 2.12.2002, and notice dated 7.12.2002, to the

appellant, informing her that her services would be dispensed

with. A further notice was issued on 13.1.2012.

W.P. No.6739/2006 (( 7 ))

10. Since the appellant approached the School Tribunal

by preferring Appeal No.61/2003, the management contended

before the Tribunal that there was no termination of the

appellant and as the appellant has not been issued with any

termination order, the appeal is premature since there is no

cause of action.

11. The learned counsel for the appellant respondent has

strenuously supported the impugned judgment. In addition

thereto, he prays that, this Court should consider the prayer of

illegal retrenchment by the management on 7.8.2006 and should

direct the release of salary from the said day.

12. We have gone through the record available in the

light of the submissions of the learned Advocates. Rule 25-A of

the 1981 Rules reads as under :

25-A) Termination of service on account of abolition of posts :-

(1) The services of permanent employee may be terminated by the Management on account of abolition of posts due to closure of the school after giving him advance intimation of three months to the effect that in the event of closure of the school, his services shall automatically stand terminated. In the case of closure of school due to de-recognition, such advance intimation of three months shall be given by the Management to the permanent employees after receipt

W.P. No.6739/2006 (( 8 ))

of a show cause notice from the Deputy Director.

Explanation:-For the purpose of this sub-rule, the expression 'closure of the school' shall include :-

(i) voluntary closure by the Management of the entire school if it is imparting instruction through one medium or a part of the school comprising one or more media of instruction if it is imparting instruction through more than one medium; and

(ii) closure of the school due to de-recognition by the Department.

(2) The names of the employees in aided schools, whose services stand terminated in accordance with sub-rule (1) on account of de-recognition and who are not directly responsible for such de-recognition, shall be taken on a waiting list by the Education Officer in the case of Primary and Secondary Schools and Junior college of Education, and same shall be recommended by him to the Managements of newly opened aided schools or of the existing aided schools which are allowed to open additional divisions or classes for consideration.

13. It is, therefore, obvious that, if the services of a

permanent employee are to be terminated by the management

on account of the closure of the school, the management can do

so by issuing a notice of three months, and from the date

proposed in the notice beyond three months, the institution

would stand closed and the services of such permanent employee

would stand automatically terminated.

14. In the backdrop of the said provision, the

communication of the District Vocational Education & Training

Office, Latur, dated 2.12.2002 and the two notices, issued by the

management to the appellant, dated 7.12.2002 and 13.1.2003,

W.P. No.6739/2006 (( 9 ))

assume significance.

15. By the notice dated 2.12.2002, the Department

brought it to the notice of the management that the strength of

the students has fallen below 15 and in the event, the said

strength does not increase in future, the salaries of the

employees would not be paid by the Department and that would

then be the responsibility of the management.

16. Contention of the management before us is that,

based on this notice, a notice under Rule 25-A was issued initially

on 7.12.2002 and then on 13.1.2003.

17. We find that, the notice dated 7.12.2002, cannot be

said to be a notice under Rule 25-A by any stretch of

imagination. It is in fact a notice, levelling allegations against

the appellant that, because of her lack of performance, the

strength of the students is decreasing and owing to the attrition

of the students, they are joining the competitor institution. She

was, therefore, called upon to show cause on her alleged

misdeeds.

18. This brings us to the second notice dated 13.1.2003,

wherein the management informs the appellant and another

W.P. No.6739/2006 (( 10 ))

employee that, if the Department does not sanction the payment

of salary, the salary of these employees would be stopped by the

management. If the employees desire to continue in service,

they should tender an affidavit on a Rs.20/- bond paper, duly

notarised, that they are willing to continue in service without

wages and will never claim any service benefits from the

management. This letter dated 13.1.2003 being termed as a

notice under Rule 25-A, is a fallacious submission on the part of

the management. In fact, it holds out a threat to the employee

that, if she desires to continue in employment, she must give a

notarised undertaking, declaring that she will never claim service

benefits while being in employment. This letter, therefore,

cannot be said to be due compliance of Rule 25-A.

19. It cannot be ignored that, the management, of its

own volition, did not desire to issue any notice under Rule 25-A.

In fact, the said management submitted a letter to the Deputy

Director of technical Education on 22.8.2003, seeking permission

under Rule 26(2) of the 1981 Rules to retrench the appellant. No

reply has been given by the Deputy Director of Vocational

Education and Training. There is no provision of deemed

sanction for retrenchment under the 1981 Rules. If there would

have been such a deeming provision on the lines of the deeming

provision granting permanency under Section 5(2) of the

W.P. No.6739/2006 (( 11 ))

M.E.P.S. Act, 1977, the management could have supported this

stand before the School Tribunal.

20. Surprisingly, the management has taken a stand

specifically in para 6 that, no termination order has been issued

to the appellant, the appellant has been continued in service and

hence, it cannot be said that her services stand terminated.

Probably the management aimed at rendering the appeal without

cause of action by taking a stand that there was no termination.

However, since the appellant was not allowed to mark her

attendance and was not paid her salary, the case fell under

Section 9(1)(a), by which a removal from service, in any manner

whatsoever, would give rise to a cause of action for the Tribunal

to consider.

21. It is in the above backdrop that the Tribunal has

allowed the appeal and has granted reinstatement with continuity

in service.

22. Learned counsel for the management has strenuously

contended that, since the appellant was not discharging her

duties and there were no students, she deserves to be deprived

of the back wages. Learned counsel for the appellant relies upon

Deepali Gundu Surwase Vs. Kranti Junior Adhyapak

W.P. No.6739/2006 (( 12 ))

Mahavidyalaya (D.Ed.) & ors. reported in (2013) 10 SCC

324, by which the Hon'ble Apex Court has concluded that, as the

termination of a teacher or an employee is bad in law and he was

rendered to starvation, 100% back wages deserve to be granted.

23. Since we do not find any perversity in the conclusions

of the School Tribunal in granting reinstatement with continuity

of service, we are required to consider the prayers put forth by

the appellant in her petition filed before us. She has claimed for

the releasing of her salary w.e.f. 12.7.2006, which is the date of

her reinstatement. Contention is, that she has not been paid her

wages even after her reinstatement despite the directions of the

School Tribunal.

24. It requires no debate that, an employee, who has

performed her duty cannot be deprived of her salary and hence,

the management would be liable to pay salary to the appellant

for the period for which she has worked with the management

after her reinstatement. The first petition filed by the petitioner,

therefore, has to be partly allowed as no management can argue

that work will be extracted from the employee, and yet the said

employee would not be paid the wages. Rule is, therefore, made

partly absolute in the first petition.

W.P. No.6739/2006 (( 13 ))

25. Insofar as back wages are concerned, for the period

of termination of the appellant till her reinstatement in service,

as is granted by the School Tribunal, we are informed that, the

management has deposited a portion of the back wages in this

Court. Office noting indicates that, an amount of Rs.4,16,195/-

was deposited on 10.4.2007 and Rs.2 Lakhs were withdrawn by

the appellant with the leave of this Court by virtue of the order

dated 4.4.2008 in Civil Application No.1609/2008.

26. Considering the peculiar facts as above and taking

into account the conduct of the management in trying to

pressurize the appellant by the communication dated 13.1.2003,

calling upon her to tender an affidavit giving up all service

benefits and work for free, we find that, it would be appropriate

to follow the ratio laid down by the Hon'ble Apex Court in the

matter of Deepali Gundo Survase (supra).

27. The second petition, which is filed by the

management, challenging the impugned judgment of the School

Tribunal is, therefore, devoid of merits and stands dismissed.

Rule is discharged.

28. Pending Civil Applications are disposed of.

W.P. No.6739/2006 (( 14 ))

29. Both the learned Advocates jointly submit that the

amount deposited in this Court is towards all unpaid salaries of

the appellant, and as such, with the withdrawal of this amount,

the management is not liable to pay any further amount to the

said employee. The statements of the learned Advocates on both

sides is accepted.

30. Needless to state, the original appellant namely Uma

d/o Pandurang Mantri is permitted to withdraw the remainder

amount from this Court along with accrued interest towards her

back wages.

          ( SUNIL K. KOTWAL )            ( RAVINDRA V. GHUGE )
               JUDGE                            JUDGE




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