Bombay High Court
Bhartiya Vidhya Prasarak ... vs Presiding Officer, School ... on 12 September, 2017
Bench: S.C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 6756 OF 2015
Pradeep S/o Krishnarao Marshettiwar,
Aged about 47 years. Occ.: Nil.
R/o-Plot No.10, Near 3rd Bus Stop,
Gopal Nagar, Nagpur. .....PETITIONER
...V E R S U S...
1] Head-mistress, Nutan Bharat Vidyalaya,
Abhyankar Nagar, Nagpur.
2] Secretary, Bhartiya Vidya Prasarak
Sanstha, Nagpur.
Aged about 57 yrs, R/o Plot No.153,
Old Shraddhanand Peth, Near Paranjpe
School, Bajaj Nagar, Nagpur.
3] Education Officer (Secondary),
Zilla Parishad, Nagpur.
4] Presiding Officer,
School Tribunal, Nagpur. ...... RESPONDENTS.
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Shri V. A. Dhabe, Advocate for the Petitioner.
Shri N. D. Khamborkar, Advocate for the Respondent Nos.1 and 2.
Shri N. R. Patil, AGP for Respondent Nos.3 and 4.
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AND
WRIT PETITION NO. 4637 OF 2015
1] Bhartiya Vidhya Prasarak Sanstha,
Through its Secretary,
Ramesh Balwant Baxi,
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Aged about 57 years,
R/o Plot No.153, Old Sraddhanand
Peth, Bajaj Nagar, Near Paranje School,
Nagpur.
2] The Head Mistress,
Veena Vilas Khotpal,
Aged about 55 years, Nutan Bharat
Vidhyalaya Abhyankar Nagar, Nagpur. .....PETITIONERS
...V E R S U S...
1] Presiding Officer,
School Tribunal, Nagpur.
2] Shri Pradeep Krishnarao Marshettiwar,
Aged about 48 years, R/o-Plot No.10,
3rd Bus Stop, Gopal Nagar, Nagpur.
3] Education Officer (Secondary),
Zilla Parishad, Nagpur. ...... RESPONDENTS.
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Shri N. D. Khamborkar, Advocate for the Petitioners.
Shri V. A. Dhabe, Advocate for the Respondent No.2/Caveator.
Shri N. R. Patil, AGP for Respondent Nos.1 and 3.
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CORAM : S. C. GUPTE, J.
th
DATE : 12
SEPTEMBER, 2017.
ORAL JUDGMENT :
Heard learned counsel for the parties.
02] Rule. Rule made returnable forthwith and taken up for
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hearing with consent of counsel for the parties.
03] These two cross petitions challenge an order passed by
the School Tribunal at Nagpur in an appeal challenging termination
of a non-teaching staff member. The School Tribunal, by the
impugned order, partly allowed the appeal, and quashed and set
aside the order of termination passed by the management and
directed reinstatement in the same post with continuity in service
but without back wages. The employee challenges the rejection of
back wages (Writ Petition No.6756 of 2015), whilst the
management, in their petition (Writ Petition No.4637 of 2015),
challenge the order of reinstatement with continuity in service.
(The parties are referred to in this order by their nomenclature in
Writ Petition No.6756 of 2015.)
04] The short facts of the case may be stated as follows :
Respondent Nos.1 and 2 are respectively Headmaster
and Secretary of the school and trust known, respectively, as 'Nutan
Bharat Vidyalaya' and 'Bhartiya Vidya Prasarak Sanstha' which runs
the school. On 16th May, 1994, the petitioner was appointed as a
peon, which is a Class-IV category post in the respondents' school,
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on a vacant post on probation. On 27 th May, 1995, the respondents
terminated him from the service on the ground that the Education
Officer of the Zilla Parishad had reduced one post of Peon. He was
terminated on the principle of 'last come first go'. The termination
was challenged by him by filing two complaints of unfair labour
practice, respectively, before the Industrial Court and the Labour
Court at Nagpur. The complaints came to be dismissed with liberty
to approach the School Tribunal. The petitioner, in the premises,
filed an appeal under Section 9 of the Maharashtra Employees of
Private Schools (Conditions of Service) Regulation Act. By an order
dated 14th January, 2009, his appeal was originally allowed by the
School Tribunal by setting aside the termination and ordering his
reinstatement with continuity of service and 50 per cent back
wages. That order was challenged by respondent Nos.1 and 2
before this Court in a writ petition. This Court, by its order dated
11th July, 2014, quashed the order of the School Tribunal and
remanded the matter to the School Tribunal for a fresh hearing. In
the meantime, the petitioner was reinstated by respondent Nos.1
and 2 on 17th January, 2009, though his back wages were not paid.
After this Court quashed the Tribunal order and demanded the
appeal, in July 2014, the petitioner was not allowed to work. On
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17th June, 2015, the School Tribunal, as noted above, partly
allowed the appeal by quashing and setting aside the termination
order dated 27th May, 1995 and directing the petitioner's
reinstatement with continuity in service but without back wages.
05] The School Tribunal noted in its impugned order that
the staff approvals of 1993-1994 and 1995-1996 indicated that
whereas the sanctioned posts in the year 1993-1994 of Class-IV
staff were Eight, the sanctioned posts in the year 1995-1996 were
Seven. Despite noting the reduction in the post as claimed by the
respondents, the School Tribunal proceeded to quash the
termination order purportedly on the ground that one post of peon
had become vacant due to retirement of another peon on 30 th June,
1995. The Tribunal noted that one of the documents produced in
the Court (Document No.4 - chit, vide Exh.23) disclosed that on 7 th
August, 1996, the Secretary of the trust had given a chit and called
for keys of the school office to be sent throught the petitioner.
Based on this document, the Tribunal considered the petitioner to
be in service with the respondents' school as of 30 th June, 1995 and
throughout thereafter till completion of the entire period of
probation. The Tribunal also relied on a certificate issued by the
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then headmaster of the school on 7th March, 1997 (vide Exh.26)
certifying the work of the petitioner of as a peon as unblemished.
06] What emerges clearly from the record of the case is that
the petitioner's appointment on 16th May, 1994 was on a vacant
post in accordance with the sanctioned strength of Class-IV staff in
the school, which was eight. The staff strength of Class-IV
employees was reduced by an order of Education Officer dated 18 th
April, 1995 from eight to seven. The only reason on which the
petitioner was terminated was this reduction. Based on this
reduction, the petitioner's services as a probationer were terminated
by the school on 27th May, 1995. There is no question, in the
premises, of the petitioner having worked with the school after the
date of his termination and till one post of peon became vacant on
account of retirement on 30th June, 1995. Learned counsel for the
petitioner, at the hearing of these petitions, claimed that the
impugned order of termination was not received by the petitioner
around the time when it was passed. There is no statement to that
effect in any of the pleadings of the petitioner. In fact, pleadings of
both parties indicate that the petitioner did receive the order of
termination issued on 27th May, 1995 and even proceeded to
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challenge the same. The whole edifice of the impugned order of the
School Tribunal is premised on a finding that the petitioner
continued to work with the respondent school upto the time the
regular employee working as peon retired on 30 th June, 1995 or
even thereafter till completion of the probationary period. Once
that premise is found on a shaky and untenable ground, the edifice
must fall. The only contemporaneous document, which appears to
have weighed with the School Tribunal is the so called chit issued
by the Secretary of the trust calling for office keys through the
petitioner. This chit is said to be of 7th August, 1996. Apart from
the fact that there appears to be an overwriting on this chit
changing the year from 1995 to 1996, the chit itself is wholly
unsubstantiated and unproved. Mere evidence of such chit is
hardly sufficient to indicate that in the face of the termination order
issued to him on 27th May, 1995, the petitioner actually continued
to work with the respondents till 7th August, 1996 or, for that
matter, till 7th August, 1995. The only other document is the
certificate issued by the then in-charge headmaster of the school in
favour of the petitioner. This certificate has surfaced much later.
The termination of the petitioner was on 27th May, 1995 and this
certificate was issued on 7th March, 1997. The role of the then in
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charge Headmaster of the School, who issued the certificate,
appears to be dubious. It is the allegation of the respondents that
originally the appeal of the petitioner before the School Tribunal
was not served on the management and an order was obtained
behind their back by the petitioner in collusion with then in charge
Headmaster. It is submitted that the in charge Headmaster placed
a submission before the School Tribunal that in 2008 there was a
post of peon available as vacant with the School. The Headmaster
even allowed the petitioner to resume in the post in January, 2009
without indicating to the management, the filing of the appeal and
order of reinstatement passed thereon. On this footing, the original
order of reinstatement was set aside by this Court and the matter
was remanded to the School Tribunal. The certificate, in the
premises, does not inspire any confidence. The petitioner's case
based on this certificate that despite his termination of 27th May,
1995, he continued to work with the School, though he was not
allowed to sign the muster, is inherently improbable. Besides, there
is no authentic record such as salary slip etc. to show that he
worked till November, 1996. In these facts, the original termination
order issued by the respondents on 27th May, 1995 cannot be said
to be illegal or contrary to law.
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07] It is, however, a matter of fact that in pursuance of the
original order of reinstatement passed by the School Tribunal, the
petitioner actually worked with the respondents' school between
17th January, 2009 and 11th July, 2014, when the original
reinstatement order was quashed and set aside by this Court and
the matter was remanded to the School Tribunal for a fresh hearing
on merits. It is also a matter of fact that the petitioner actually
received salary for this period.
08] On these facts, the petitioner is neither entitled to
reinstated or paid back wages for the period after his termination
and upto 14th January, 2009 or after 11th July, 2014. Since, in
pursuance of the original order of reinstatement passed on 14 th
January, 2009, he actually worked between 11 th January, 2009 and
11th July, 2014, he is entitled to receive salary only corresponding
to that period.
09] In the premises, Writ Petition No.6756 of 2015 is
dismissed and Writ Petition No.4637 of 2015 is allowed by
quashing and setting aside the impugned order of reinstatement
with continuity in service passed on 17 th June, 2015 and dismissing
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Appeal No.20 of 2008 filed by respondent No.2 (the petitioner in
companion Writ Petition No.6756 of 2015).
10] No order as to costs.
JUDGE
PBP
