Bombay High Court
Public Education Society Thr. ... vs Hussain Khan Lalkhan Pathan And ... on 17 March, 2022
Bench: Manish Pitale
1/8 901.wp1737.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 1737 OF 2021
Public Education Society and anr.
Vs.
Hussain Khan Lalkhan Pathan and anr.
WITH
WRIT PETITION NO. 1755 OF 2021
Public Education Society and anr.
Vs.
Yunus Khan Daulat Khan and anr.
----------------------------------------------------------------------------------------------
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
----------------------------------------------------------------------------------------------
Mr. S.M. Vaishnav, Advocate for petitioners in both writ
petitions.
Mr. Mohd. Ateeque, Advocate for respondent No.1 in
both writ petitions.
Mr. D.P. Thakare, Addl. GP for respondent/State in both
writ petitions.
CORAM : MANISH PITALE J.
DATE : 15.03.2022.
In both these petitions, the first
respondents have approached the School Tribunal
challenging orders dated 06.09.2016 terminating
their services. The petitioner society had on earlier
occasions terminated the services of the said
respondents and on every occasion the School
Prity
2/8 901.wp1737.2021
Tribunal had held in favour of these respondents
granting relief of reinstatement with back-wages.
2. In the instant round of termination of
their services and filing of appeals before the School
Tribunal, the petitioner-Management had filed replies
justifying the orders of termination of service.
3. During the pendency of the appeal, the
petitioner-Management passed Resolutions to
withdraw the termination of services of the said
respondents. After doing so, the petitioner-
Management filed applications in the pending
appeals, stating that since the management had
decided to withdraw the termination of service of the
respondents, no cause of action survived and that the
appeals deserved to be disposed of.
4. This was opposed by the
respondents/employees on the ground that such
unilateral steps on the part of the Management
cannot render the appeals infructuous, particularly
when the question of back-wages and other reliefs
sought by the respondents deserved to be considered
on merits by the Tribunal.
Prity
3/8 901.wp1737.2021
5. The aforesaid applications were taken up
for consideration and by assigning identical reasons,
the Tribunal rejected the applications. The present
petitions have been filed by the petitioner-
Management challenging the said orders.
6. Mr. Vaishnav, learned counsel appearing
for the petitioner-Management in both these writ
petitions submitted that nothing survived in the
appeals pending before the Tribunal and that
therefore, the impugned orders deserved to be set
aside. The very basis of the grievance raised on behalf
of the respondents before the Tribunal, was taken
away and that therefore, the appeals deserved to be
disposed of.
7. The learned counsel for the petitioner-
Management placed reliance on the judgment of this
Court in the case of Osmanabad District Swatantra
Sainik Samiti Vs. Jagannath Pandurang Kshirsagar,
2016 (3) Mh.L.J. 181 and Shrisht Dhawan (smt) Vs.
M/s. Shaw Brothers, 1992 (1) SCC 534.
8. On the other hand, Mr. Mohd. Ateeque,
learned counsel appearing for the first respondents in
both these writ petitions submitted that the reasoning
of the Tribunal was in consonance with furtherance
Prity
4/8 901.wp1737.2021
of justice and that the petitioner-Management could
not be permitted unilaterally to pass Resolutions after
long pendency of the appeals, only with a view to
render the appeals infructuous. It is submitted that
the writ petitions deserve to be dismissed.
9. Heard learned counsel for the rival parties
and perused the material on record.
10. The facts of the present cases show that
the petitioner-Management has repeatedly terminated
the services of the first respondents in these writ
petitions and on every occasion the School Tribunal
has found such orders of termination of services as
unsustainable. Consequently, repeated orders of
reinstatement in service with back-wages have been
passed in favour of these respondents. It is brought to
the notice of this Court that despite such orders in
favour of the first respondents, till date relief of back-
wages granted by the Tribunal is actually not
disbursed by the petitioner-Management in favour of
the respondents.
11. In the latest round of litigation the
services of the first respondents stood terminated,
upon which they filed appeals before the Tribunal.
The petitioner-Management appeared before the
Prity
5/8 901.wp1737.2021
Tribunal and filed its replies, seeking to justify the
orders of termination of service. It is an undisputed
fact that the appeals have been pending before the
Tribunal from the year 2018.
12. The petitioner-Management claims that
by Resolutions dated 23.09.2019, it was decided that
the orders of termination of services issued against
the first respondents in both these petitions stand
withdrawn. It is on the basis of these Resolutions that
the petitioner-Management claims that the Tribunal
no longer had jurisdiction to consider the appeals, as
the very basis of the grievance of the respondents was
taken away.
13. The aforesaid contention raised on behalf
of the petitioner-Management has been dealt with by
the Tribunal in the impugned orders as follows:
11. In view of above, it is patent that the facts of the
present case are quite different. Here, after arrival of
cause of action the appellant preferred present
appeal. After 3 years the respondent Management
withdrawn termination without making any whisper
about back-salary. Hence, the dispute still persis on
the point of back-salary. To succeed in that prayer,
the appellant will have to show that the termination
was not legal.
12. From above it is clear that there is no
satisfaction of full claim of the appellant. In this
background, if the appeal is held as untenable strong
Prity
6/8 901.wp1737.2021
prejudice will entail to the appellant on the point of
his back-salary claim. The Management cannot be
given latitude to withdraw termination order on
their terms and to challenge tenability of the appeal.
If such pleas are entertained, in each case the
Management would drag the matter for years
together and then withdraw the termination to the
prejudice of an employee. It will frustrate the edifice
of the MEPX Act which is enacted for providing
stability in the service to an employee in the Private
Schools. Had it been the case that they had accorded
all relief to the appellant then it would have been
different contingency. In that case the appellant
would not have proceeded with the matter.
However, in above set of facts and especially
considering previous history of litigation, I do not
find any merit in present application.
14. This Court is in agreement with the
aforesaid reasoning given by the Tribunal. It is correct
that if Managements like the petitioner before this
Court are permitted to escape or avoid the
consequences of its actions by subsequently passing
Resolutions and claiming that the orders of
termination of services have been withdrawn, it
would be easy for such Managements to harass their
employees. In these cases, the background in which
the latest round of litigation is pending demonstrates
the manner in which the petitioner-Management has
been issuing orders of termination of services
repeatedly against the respondents and then claiming
that the very basis of the grievance of the respondents
is taken away. Despite orders passed in favour of the
Prity
7/8 901.wp1737.2021
employees in the earlier rounds of litigation nothing
has been paid towards back-wages to the
respondents. There is no whisper in the resolutions
passed by the petitioner-Management, purportedly
withdrawing the latest orders of termination of
service, regarding payment of back-wages and
addressing other grievances of the respondents. In
these circumstances, it cannot be said that the
Tribunal committed any error in passing the
impugned orders.
15. Insofar as the judgment on which
reliance is placed by the learned counsel appearing
for the petitioner-Management, suffice it to say that
the facts are distinguishable. In the case of
Osmanabad District Swatantra (supra), the case was
of oral termination of service, which was specifically
refuted by the Management and it was contended
that the employee was not terminated from service
and he could very well continue. Such are not the
facts in the present cases and therefore, the judgment
is inapplicable. Insofar as the judgment of the Hon'ble
Supreme Court in the case of Shrisht Dhawan (supra)
is concerned, it is more on the question of error in
jurisdictional facts rendering an order ultra vires. This
Court does not find the law laid down in the said
judgment of any assistance to the petitioner-
Prity
8/8 901.wp1737.2021
Management while assailing the impugned orders
passed by the Tribunal.
16. In view of above, the writ petitions are
dismissed.
17. The Tribunal is directed to dispose of the
pending appeals, as expeditiously as possible.
JUDGE
Digitally signed
by PRITY S
PRITY S GABHANE
GABHANE Date:
2022.03.19
17:39:56 +0530
Prity
