Bombay High Court

Vilas Sampat Mule vs Bhausaheb Zarkar Secondary ... on 26 April, 2023

Bench: R. G. Avachat

                                                                              RA-114-21.odt




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                     REVIEW APPLICATION NO. 114 OF 2021
                                     IN
                       WRIT PETITION NO. 6044 OF 2020

Vilas Sampat Mule                                         ..APPLICANT
      VERSUS
Bhausaheb Zarkar Secondary Residential
Ashram School, Majalgaon
through In-charge Head Master
Vikas Marutrao Tanpure and Others                         ..RESPONDENTS

                                     ....
Mr. G.K. Naik-Thigale, Advocate for applicant
Mr. A.D. Pawar, Advocate for residential no.1
Mr. N.T. Bhagat, A.G.P. for respondent nos. 2 to 6
                                     ....

                                     CORAM         : R.G. AVACHAT, J.
                                     RESERVED ON   : 28th MARCH, 2023
                                     PRONOUNCED ON : 26th APRIL, 2023

ORDER :

1. Heard. Delay occurred in filing this review application is

condoned.

2. This application has been moved for review of order dated 10 th

June, 2021 passed in Writ Petition No. 6044 of 2020. By the order sought to

be reviewed, writ petition preferred by Respondent No.1 - Bhausaheb Zarkar

Secondary Ashram School, Majalgaon came to be allowed. The challenge in

the said writ petition was to the order passed by Deputy Commissioner of

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Labour, Nashik Division, Nashik on 21st July, 2020, whereby industrial

dispute raised by the applicant herein came to be referred to Labour Court,

Ahmednagar for adjudication.

3. This Court allowed the said writ petition with the reasons that as

per Clause 2.5 of Ashram School Code for Secondary and Higher Secondary

Ashram Schools, teaching and Non-teaching staff thereof were directed to be

covered by the Maharashtra Employees of Private Schools (Condition of

Services) Act, 1977 ('M.E.P.S. Act') and Rules of 1981. Relying on Full Bench

judgment of this Court in case of Suryakant Sheshrao Panchal Vs. Vasantrao

Naik Vimukta Jati Bhatakya Jamati Aadarsh Prasarak Mandal and Ors ,

2002(5) Bom.C.R. 95, this Court held that Ashram school running secondary

and higher secondary class cannot be covered by M.E.P.S. Act. An employee

working in the Ashram School (Secondary and Higher Secondary) has a right

to approach the School Tribunal by filing appeal under Section 9 of the said

Act against an order of punishment/termination of services or for redressal of

the grievances.

4. Learned counsel for the applicant would submit that applicant was

serving as Superintendent of the Ashram School. In view of definition of the

term, "workman" given in Section 2(s) of the Industrial Disputes Act, an

employee doing clerical or supervisory work is also covered by the term

"workman". Reliance on the judgment of this Court in case of The President,

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Anatha Mahila Ashram, Kolhapur Vs. J.G. Ajagaonkar, MANU/MH/0367/

1995 was placed.

5. According to learned counsel, there are catena of judgments

holding an employee even doing clerical or supervisory work would be a

'workman' within the definition of 'workman' given under Section 2(s) of the

Industrial Disputes Act. He would further submit that the Apex Court in case

of Sundarjas Kanyalal Bhatija and Ors. Vs. Collector, Thane, Maharashtra and

Ors, 1989(3) SCC 396 has categorically held that where a Single Judge or a

Division Bench does not agree with the decision of the Bench of co-ordinate

jurisdiction, the matter shall be referred to a Larger Bench. He would

further submit that High Court being a Constitutional Court, needs to correct

it's own mistake crept in order/judgment. In support of this contention, he

placed reliance on the judgment of Apex Court in case of Board of Control for

Cricket in India Vs. Netaji Cricket Club and Ors., (2005) 4 SCC 741 . He also

relied on the judgments of this Court in case of Tirumala Shikshan Sanstha

and Ors. Vs. Santosh and Ors., 2022 SCC Online Bom. 4586 and Balasaheb

Bagadu Yeole Vs. Sangamner Taluka Vikas Pratishthan , delivered by this

Court in Writ Petition No. 1572 of 2015 on 09th December, 2016.

6. Learned counsel for the respondent would, on the other hand,

submit that review application is not maintainable. The remedy of the appeal

is only available for the applicant. According to learned counsel, if any other

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remedy is made available by the government under various government

resolutions, the applicant may have recourse thereto. Learned counsel has

also submitted that the respondent - Ashram School has now been closed.

He, therefore, urged for rejection of the application.

7. Considered the submissions advanced. Perused the authorities

relied on. Admittedly, the respondent is a Secondary Residential Ashram

School. The applicant was appointed as a Hostel Superintendent with effect

from 01st July, 2002. On completion of probationary period of two years, he

continued in service. It is the case of the respondent that the applicant

voluntarily gave resignation of his post on 14 th April, 2005. Little over

thirteen years thereafter he raked up the said issue. The record further

indicates that the respondent - school on due compliance of the rules and

regulations filled-up vacancy generated due to resignation given by the

applicant. Be that as it may.

8. This Court relying on the Full Bench judgment of this Court in

Suryakant Sheshrao Panchal (supra) has held that an employee working in

Ashram school which is mainly a higher secondary Ashram school has a right

to approach School Tribunal for filing appeal under Section 9 of the said Act

against an order of punishment or termination of his service, or for redressal

of grievances enlisted in the said section.

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9. The authorities now sought to be relied on in this review

application were not brought to the notice of this Court while the writ

petition was being heard on it's own merits. It is not that those authorities

are squarely applicable to the case of the applicant. Learned counsel, who

was representing the applicant in the said proceeding must blame himself for

not bringing to the notice of this Court the authorities he proposed to rely in

this review application. There can be no two views over a legal proposition

that an earlier judgment of a co-ordinate Bench is binding on another co-

ordinate Bench.

10. In case of National Insurance Co. Vs. Mohd. Sultan Asim and Ors.,

the High Court Jammu and Kashmir in Review Application No. 5 of 2003 has

observed thus :-

"9. .... In our opinion, a judgment rendered per incurium may be set-aside in appeal, but that is no ground for review. As is well known, review is admissible to correct mistake or error apparent on the face, of the record or on the basis of discovery of new and important material which, not being within the knowledge of the applicant despite exercise of due diligence, could not be produced by him when the judgment was delivered. The judgment rendered in ignorance of a binding decision of the court cannot be said to be an error apparent on the fact of the record nor it can be said to be discovery of a new material."

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11. Moreover, this Court is of the view that the applicant was doing

supervisory work and would in no way be termed to be a 'workman'

amenable to the jurisdiction of the Labour Court under the Industrial

Disputes Act. It is also informed that the respondent - Ashram School has

now been closed down. Learned counsel for the respondent himself has

placed on record Government Resolution dated 03 rd October, 2017 relating to

constituting disputes reddressal forum for the employees of government

recognized and aided residential Ashram schools.

12. If the appellant has remedy thereunder, he may have recourse

thereto. This Court shall not be misconstrued to have observed that the

applicant has remedy under the said government resolution. Needless to

mention this Court finds no merit in the review application. Same is,

therefore, dismissed.

( R.G. AVACHAT, J. )

13. After pronouncement of the order, learned counsel for the

applicant submits that the applicant will approach School Tribunal and the

time spent in this review application may be directed to be excluded while

computing the period of limitation for preferring the appeal before the School

Tribunal.

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