Bombay High Court
The Secretary Trustee Swami Vivekanand ... vs Pushpa Prakash Bachhav And Anr on 16 April, 2025
2025:BHC-AS:17395
Neeta Sawant WP-12919-2024-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12919 OF 2024
1. The Secretary Trustee,
Swami Vivekanand Shikshan
Samiti Through its Trustee
Mrs. Girija Sitaram Upadhyay
Shree Mahadev Upadhyay
Madhyamik Vidyalaya & Junior
College Arts/Commerce,
Hariyali Village, Vikhroli (E),
Mumbai - 400 083.
2. Shree Mahadev Upadhyay
Madhyamik Vidyalaya & Junior
College Arts/Commerce, through
Its Principal Mrs. Kanchan Bharat
Dubey Hariyali Village, Vikhroli (E),
Mumbai - 400 083. } ...Petitioners
-Versus-
1. Mrs. Pushpa Prakash Bachhav
Aged about 51 years, Ex.Teacher
Shree Mahadev Upadhyay Madhyamik
Vidyalaya & Junior College Arts & Commerce,
R/at. Room No.103, Ambika Nagar,
Dhanraj Building, Pawar Complex, Belavali,
Badlapur (W) - 421 503.
2. The Education Inspector,
Education Department, Brihanmumbai
North Zone, New Administrative Building
No.2, 2nd Floor R. C. Marg, Chembur (E),
Mumbai - 400 071. } ...Respondents
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Mr. Arvind Ganpatlal Kothari, for the Petitioners.
Mr. J. H. Ramugade with Mr. P. G. Chandeliya, for Respondent No.1.
Ms. Tanu N. Bhatia, AGP for Respondent No.2-State.
CORAM : SANDEEP V. MARNE, J.
Judgment Reserved On : 8 April 2025.
Judgment Pronounced On : 16 April 2025.
JUDGMENT :
1) Rule. Rule is made returnable forthwith. With the consent
of learned counsel appearing for rival parties, petition is taken up for
final hearing and disposal.
2) The Petitioner-Management has filed this petition
challenging the judgment and order dated 18 July 2024 passed by the
Presiding Officer, School Tribunal, Mumbai allowing Appeal
No.64/2023 filed by the First Respondent and setting aside the order of
her termination dated 13 June 2023.
3) Petitioner No.1 is a Trust registered under the provisions
of Maharashtra Public Trusts Act, 1950. It owns and manages Petitioner
No.2-School, which is an aided school. Respondent No.1 claimed that
she belongs to Hindu Mahadeo Koli (Scheduled Tribe) and on the basis
of her tribe claim, she was appointed as Shikshan Sevak on
1 August 2002 in the Petitioner No.2-School against the post reserved
for Scheduled Tribe category.
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4) Respondent No.2 granted approval to the appointment of
the First Respondent by order dated 1 January 2003 and the approval
was also against the post reserved for Scheduled Tribe category.
Petitioners issued letter dated 20 September 2013 to the Caste Scrutiny
Committee for verification of Caste Certificate submitted by the First
Respondent in view of G.R. dated 18 May 2013 and also in accordance
with the provisions of the Maharashtra Scheduled Castes, Scheduled
Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other
Backward Classes and Special Backward Category (Regulation of
Issuance and Verification of) Caste Certificate Act, 2000 (Act of 2000)
and the Rules made thereunder. By order dated 30 June 2015, the
Scrutiny Committee held that the First Respondent had not obtained
proper Caste Certificate and accordingly cancelled the Caste Certificate
of 1982, but granted liberty to her to obtain fresh Caste Certificate and
submit the same to the Scrutiny Committee for verification. According
to the Petitioners, the order dated 30 June 2015 was suppressed by the
First Respondent.
5) It is also the case of the Petitioners that the First
Respondent was habitually remaining absent. She also filed FIR on
10 April 2023 against the Ex-Principal and teacher falsely accusing
them of abusing her with reference to her caste. She was issued a show
cause notice dated 24 June 2022. By letter dated 13 June 2023, the
Management terminated her services on the grounds of (i) failure to
submit Caste Validity Certificate, (ii) absenteeism and (iii) lodging of
false FIR by her. Respondent No.1 filed Appeal No.64/2023 before the
School Tribunal, Mumbai challenging the termination order dated
13 June 2023. The Appeal was resisted by the Petitioners by filing reply.
By judgment and order dated 18 July 2024, the School Tribunal has
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allowed the Appeal and has set aside the termination order dated
13 June 2023 with further directions to the Petitioners to reinstate the
First Respondent on the post of Assistant Teacher w.e.f. 13 June 2023
with all consequential benefits. The Petitioner-Management is
aggrieved by the judgment and order dated 18 July 2024 passed by the
School Tribunal and has accordingly filed the present petition.
6) I have heard Mr. Kothari, the learned counsel appearing
for the Petitioner-Management, who would submit that the School
Tribunal has erred in setting aside the termination of the first
Respondent whose appointment itself was void. That she was
appointed against the post reserved for ST category and despite
repeated reminders, she failed to submit Caste Validity Certificate. He
would submit that under the provisions of the Act of 2000 and the
Rules made thereunder, it is mandatory for Respondent No.1 to
produce Caste Validity Certificate. That under the GR dated
18 May 2013, her services are liable to be terminated on failure to
submit Caste Validity Certificate within reasonable time. That the caste
claim of the First Respondent was actually rejected by the Scrutiny
Committee by order dated 30 June 2015, which order was suppressed
by her. He would submit that her claim of belonging to ST category was
the only reason why the First Respondent was appointed in the
services of the School. That once the caste claim is not validated,
termination of services is imminent. He would rely upon judgment of
the Apex Court in Chairman and Managing Director FCI and Ors.
Versus. Jagdish Balaram Bahira and Ors.1
Civil Appeal No. 8928 of 2015 decided on 6 July 2017.
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7) Mr. Kothari would submit that the Respondent was
otherwise remaining absent from services frequently and had also
lodged false FIR against the Ex-Principal and Teacher under the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989. That she had failed to submit Caste Validity Certificate to prove
her caste claim and on the other hand, was embroiling other teaching
staff in false cases under the Atrocities Act. That the Management
therefore rightly terminated her services. Mr. Kothari would submit
that since the misconduct is otherwise admitted, there was no necessity
of holding any enquiry.
8) Without prejudice to the above submissions, Mr. Kothari
would submit that the Tribunal has grossly erred in granting all
consequential benefits to the First Respondent as a result of setting
aside her termination. That the First Respondent did not plead or prove
that she was not gainfully employed during the period of her
termination. That in absence of pleading and proof that the employee
was not gainfully employed, it is not lawful for the Courts or Tribunals
to award backwages. In support of his contentions, he would rely upon
following judgments of the Apex Court in the case of Kendriya
Vidyalaya Sangathan and another Versus. S. C. Sharma 2, P.
Karupaiah (Dead) through Legal Representatives Versus. General
Manager, Thruuvalluvar Transport Corporation Limited3 and Ramesh
Chand Versus. Management of Delhi Transport Corporation 4. He
would pray for setting aside the order of the School Tribunal.
(2005) 2 SCC 363
(2018) 12 SCC 663
Civil Appeal No. 4208 of 2023 decided on 5 July 2023.
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9) Per-contra, Mr. Ramugade, the learned counsel appearing
for Respondent No.1 would oppose the petition. He would submit that
Respondent No.1 was unceremoniously thrown out of service without
conducting any enquiry. That the termination was premised on
allegations of misconduct of remaining unauthorisedly absent and
lodging of FIR. That mere lodging of an FIR is not a misconduct. That
the allegation of absenteeism needs to be proved in an enquiry, which
was never held in the present case.
10) So far as the allegation of non-submission of Caste Validity
Certificate is concerned, she would submit that the First Respondent
was working with the school since the year 2002 and it was erroneous
on the part of the School Management to terminate her services after 21
long years on the pretext of non-submission of Caste Validity
Certificate. That the pretext of non-issuance and non-submission of
Caste Validity Certificate was deliberately used because she had made
a complaint to the Education Officer, who had sent a notice to her. In
any case, she would submit that the First Respondent has now been
issued Caste Validity Certificate on 7 June 2023. It is now established
that Respondent No.1 belongs to ST category. Her termination is thus
illegal and the Tribunal has rightly set aside the same. He would
submit that once the termination is found to be illegal, consequential
benefits of backwages must follow. He would accordingly pray for
dismissal of the petition.
11) Rival contentions of the parties now fall for my
consideration.
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12) The Petitioner-Management has terminated the services of
the First Respondent on three grounds of (i) failure to submit Caste
Validity Certificate as per GR dated 18 May 2013, (ii) absenteeism and
(iii) lodging of false FIR without following the guidelines under the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977.
13) So far as the allegations of absenteeism and lodging of
false FIR are concerned, admittedly no enquiry has been conducted
against the First Respondent. Remaining unauthorisedly absent from
duties by a permanent employee constitutes misconduct, which is
required to be proved by conduct of departmental enquiry. In the
present case, no enquiry has been conducted. Respondent No.1 has
never admitted the alleged misconduct of absenteeism. Therefore,
reliance by Mr. Kothari on judgments of Himachal Pradesh Road
Transport Corporation and another Versus. Hukum Chand5,
Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar
Educational Institution Versus. Educational Appellate Tribunal and
Another6, Biecco Lawrie Limited and Another Versus. State of West
Bengal and Another7 and The Management of Messrs K.G. Khosla &
Co. (P) Ltd. Versus. Ved Raj Bhalla8 is clearly misplaced. This is not a
case involving admitted misconduct of absenteeism. First Respondent
never admitted falsity in FIR lodged by her. Therefore it cannot be
contended that the first Respondent admitted the allegations levelled
against her. Therefore, her services could not have been terminated
(2009) 11 SCC 222
(1999) 7 SCC 332
(2009) 10 SCC 32
1972 LIC 1475
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without proving the misconduct by holding a departmental enquiry.
The termination is therefore bad for non-holding of enquiry.
14) This leads to the main ground of termination i.e. failure to
submit Caste Validity Certificate. There is no dispute to the position
that the First Respondent was appointed against the post reserved for
ST category. At the time of her appointment, she produced Caste
Validity Certificate issued in the year 1982 certifying that she belongs to
'Hindu Mahadeo Koli' caste. After issuance of the GR dated
18 May 2013, it appears that the Petitioner-Management forwarded the
case of the First Respondent for validity of her caste claim by letter
dated 30 September 2013. The Caste Scrutiny Committee passed order
dated 30 June 2015 holding that the Caste Certificate issued to the First
Respondent was in the name of 'Mahadeo Koli', which was not in
accordance as the caste appearing in Scheduled Tribes List, in which
the included entry is 'Koli Mahadeo'. The Scrutiny Committee therefore
confiscated First Respondent's Caste Validity Certificate of 1982 and
cancelled the same. However liberty was granted to her to obtain fresh
Caste Validity Certificate and submit the same for verification. It is
Petitioner's case that the First Respondent suppressed order of the
Scrutiny Committee dated 30 June 2015. Since the First Respondent
failed to submit the Caste Validity Certificate, her services have been
terminated by letter dated 13 June 2023.
15) Under the provisions of Section 10 of the Act of 2000, the
employer is entitled to discharge the employee from services, who is
appointed against a reserved post if the employee produces a false
caste certificate. In the present case, the Caste Certificate of the First
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Respondent issued in the year 1982 has been cancelled and confiscated
by the Scrutiny Committee by order dated 30 June 2015. Since the very
Caste Certificate of the First Respondent is cancelled, no serious flaw
can be found in action of the Petitioner-School Management in
terminating her services. Though the Scrutiny Committee had granted
liberty to the First Respondent to obtain fresh Caste Certificate of 'Koli
Mahadeo' and to submit the same for scrutiny, it appears that the First
Respondent failed to do so. Till she was terminated, she neither secured
fresh Caste Certificate nor submitted the same for validity. The Apex
Court in Chairman and Managing Director FCI and Ors. Versus.
Jagdish Balaram Bahira and Ors. (supra) has held that employer is
entitled to terminate the services of employee appointed against
reserved post once the caste claim is found to be false. In that sense, the
services of the Respondent became liable for termination once it was
discovered that the Caste Certificate issued to her in the year 1982 was
cancelled and confiscated by the Committee by order dated
30 June 2015.
16) However, it appears that the First Respondent availed the
liberty granted by the Scrutiny Committee in order dated 30 June 2015
belatedly and secured a fresh Caste Certificate dated 6 June 2023
certifying that she belongs to 'Koli Mahadeo' tribe. The Certificate is
however obtained few days before termination of her services. The
termination happened on 13 June 2023, whereas fresh caste certificate
was obtained on 6 June 2023. The Certificate was then submitted for
validity to the Scrutiny Committee and by order dated 9 October 2023,
the Scrutiny Committee issued Certificate of Validity in respect of the
caste claim dated 6 June 2023. The AGP was directed to take
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instructions about the authenticity of Certificate of Validity and the
Sub-Divisional Officer, Malegaon has certified vide letter dated
11 March 2025 that the Caste Validity Certificate is genuine. Thus, as of
today the caste claim of the First Respondent has been upheld and it is
proved that she belongs to 'Koli Mahadeo' Scheduled Tribe. Therefore,
it can no longer be contended that her initial appointment is ab initio
void. In that sense, even the first ground of her termination of failure
to submit Caste Validity Certificate, no longer survives.
17) Thus, the termination of the First Respondent on three
grounds of failure to submit Caste Validity Certificate, absenteeism and
lodging of FIR is found to be erroneous. The First Respondent is thus
entitled to the relief of reinstatement.
18) The next issue for consideration is whether the First
Respondent is entitled to backwages while setting aside the
termination order dated 13 June 2023. As observed above, till her
services were terminated on 13 June 2023, the First Respondent had not
produced the Caste Validity Certificate. She was granted liberty to
obtain fresh Caste Certificate and to submit the same for validity on
30 June 2015. For eight long years, she did not take any steps for
procuring Caste Certificate and get the same validated. In that view of
the matter, it cannot be said that the Petitioner-employer committed a
gross error in terminating her services. The employer has terminated
the services under a bonafide belief that the First Respondent does not
belong to scheduled tribe category. The Petitioners waited for 10 long
years for the First Respondent to prove her caste claim. After waiting
for 10 years, ultimate step of termination was required to be taken. It is
only after the First Respondent was terminated that she thought of
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securing a Certificate of Validity dated 6 June 2023. In my view, the
First Respondent invited her termination on account of her own
negligent conduct in not securing fresh Caste Certificate for over 8 long
years and getting the same validated despite the liberty garnted by the
Scrutiny Committee. Considering these peculiar facts and
circumstances of the case, I am of the view that the Management
cannot be saddled with liability to pay 100% backwages to the First
Respondent due to erroneous termination effected on 13 June 2023. She
would get reinstatement with continuity of service.
19) Mr. Kothari has also contended that the First Respondent
never pleaded absence of gainful employment nor has proved the
same. His reliance on the judgment of the Apex Court in Kendriya
Vidyalaya Sangathan (supra), P. Karupaiah (supra) and Ramesh
Chand (supra) is apposite.
20) In my view therefore award of 100% backwages is
unwarranted in peculiar facts and circumstances of the present case.
Instead, award of 25% backwages from the date of her termination till
the date of her reinstatement would meet the ends of justice. The first
Respondent is otherwise held to be entitled to continuity of service and
would accordingly earn increments during the intervening period on
notional basis. Continuity would also ensure that there is no break in
service.
21) I accordingly proceed to pass the following order :
(i) Judgment and order dated 18 July 2024 passed by the
School Tribunal in Appeal No.64/2023 is modified only to
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the limited extent of award of consequential benefits and
backwages.
(ii) Petitioner-Management shall reinstate the First
Respondent in service within four weeks.
(iii) The Petitioner-Management shall award 25% backwages to
the First Respondent from 13 June 2023 till the date of her
reinstatement, payment of which shall be made to the First
Respondent within 8 weeks.
(iv) The entire service from 13 June 2023 till the date of
reinstatement shall be treated as continuous for all
purposes such as eligibility, seniority, pay fixation, pension
etc.
22) With the above directions, the petition is partly allowed.
Rule is made partly absolute. There shall be no order as to costs.
Digitally
signed by
NEETA
NEETA SHAILESH [SANDEEP V. MARNE, J.]
SHAILESH SAWANT
SAWANT Date:
2025.04.17
16:35:31
+0530
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