Bombay High Court
Hanuman Gramin Vikas And Sanshudhan ... vs State Of Maharashtra And Ors. on 23 February, 2026
2026:BHC-AUG:8270
902 WP No.4244.1998
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4244 OF 1998
Shri. Hanuman Gramin Vikas and
Sanshudhan Mandal, Panaswadi,
Post Sonai, Tq. Newasa, Dist. Ahmednagar
.... Petitioner
Versus
1 The State of Maharashtra
2 The Education Officer,
Secondary Section, Zilla Parishad,
Ahmednagar
3 Smt. Mangala Gangadhar Bodkhe,
w/o Janardhan Nehul, Age : 26 years
R/o : At and Post Javkheda,
Tq. Pathardi, Dist. Ahmednagar
.... Respondents
***
Advocate for the Petitioner : Senior Counsel Mr. V. D. Sapkal
AGP for Respondents-State : Ms. P. V. Diggikar
Advocate for Respondent No. 3 : Mr. G. B. Rajale
***
WITH
CIVIL APPLICATION NO. 10939 OF 2004
IN WP/4244/1998
Smt. Mangala Gangadhar Bodkhe,
@ Mangal Janardhan Nehul,
Age : 34 years, Occu : Nil,
R/o : Javkhede, Post : Pathardi,
Dist. Ahmednagar
.... Applicant
Versus
1 Shri. Hanuman Gramin Vikas and
Sanshodhan Mandal, Panaswadi,
Post Sonai, Tq. Newasa, Dist. Ahmednagar
Through its President
902 WP No.4244.1998
-2-
2 The State of Maharashtra
Through The Secretary, Education Department,
Mantralaya, Mumbai - 32
.... Respondents
***
Advocate for Applicant : Mr. G. B. Rajale
***
CORAM : SACHIN S. DESHMUKH, J.
Date : 23rd February, 2026
JUDGMENT :-
1. The petitioner - management, raising an exception to the order dated 12.08.1998 rendered by the learned Presiding Officer, Additional School Tribunal, Pune, Region Solapur in Appeal No. 113 of 1996 of the School Tribunal, allowing the Appeal presented by the respondent - employee, setting aside the order of termination dated 15.06.1995 along with the back-wages, has presented this petition.
2. The respondent No. 3 was initially appointed on 14.06.1992. Upon completing three years of service at Shevgaon, a transfer order dated 08.06.1995 was issued, posting the respondent No. 3 to Newasa. Although the transfer order was duly served, the respondent No. 3 failed to report for duty at the transferred place. While the petitioner initially presumed that 902 WP No.4244.1998 -3- respondent No. 3 had departed to join the new post, it was later discovered that she had remained absent without authorization. Despite several notices, failed to resume her duties. Consequently, a final notice was issued on 16.09.1995, informing respondent No. 3 that her continued failure to report indicated a lack of interest in the position. The respondent No. 3 was further notified that her name would be struck off the muster roll and that she would have no grounds for future grievance regarding this action.
3. Resultantly, the respondent No. 3 - employee approached to the School Tribunal presenting an Appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 (for short "the M.E.P.S. Act") and Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short "the M.E.P.S. Rules"), seeking reinstatement with full backwages.
4. The School Tribunal, considering the fact that the petitioner did not allow the respondent No. 3 to join her duties at transferred place at Newasa, therefore, it amounts to otherwise termination and said termination order is illegal as the permanent employee ought be terminated by management arbitrarily and without following the procedure of law. Eventually, the School 902 WP No.4244.1998 -4- Tribunal allowed the appeal with reinstatement from 15.06.1995 with backwages and all other benefits. The order of the School Tribunal is subject matter of challenge in the present petition.
5. The contention of learned Senior Counsel Mr. Sapkal for the petitioner / management, that the respondent No. 3 was legally bound to comply with the transfer order dated 08.06.1995. Under established service law, a transfer is an exigency of service, and an employee must report to the new post immediately. Failure to join a new post after being duly served constitutes a abandoning services.
6. It is further submitted by the learned Senior Counsel that the Management acted with due diligence and fairness. Notices were issued, culminating in the final notice dated 16.09.1995. By providing the Respondent with opportunity to resume duties and indicating the consequences, the Management complied with the requirements of natural justice before taking the final step to strike her name off the roll. In light of the Respondent's willful disobedience and eventual abandonment of service, the Petitioner Management prays that the action of striking the Respondent's name off the muster roll be upheld as legal, valid, and justified. 902 WP No.4244.1998 -5-
7. Equally, it was submitted that there was no reason to award reinstatement with full backwages in absence of pleadings in that regard. In support of the same, the learned Senior Counsel places reliance on the Deepali Gundu Surwase vs Kranti Junior Adhyapak & Ors [(2013)10 SCC 324].
8. Per contra, the learned counsel for respondent No. 3 Mr. Rajale countered the petition submitting that the Management's action of "striking off the name from the muster roll" is a punitive measure that amounts to deemed termination. It is further submitted that no employee, much less a permanent, can be terminated without a proper Departmental Enquiry. Issuing notices by itself does not dispense with the legal requirement to hold a inquiry. It is further submitted that the petitioner Management's claim of "abandonment" is a legal conclusion that can only be reached after an inquiry. The "striking off the name"
for absence without a prior inquiry is a colourable exercise of power and constitutes illegal termination. As such, prayed to dismiss the petition.
9. The learned counsel for respondent No. 3 has vehemently submitted that the employee's continuous endeavour to ensure reinstatement, throughout the period of illegal 902 WP No.4244.1998 -6- termination and even during the pendency of this proceedings, sufficiently establishes an intent to remain in service and that the employee was not gainfully employed.
10. Having heard the respective counsel for the litigating sides and perused the material on record, it is evident that respondent No. 3 was admittedly appointed on 14.06.1992 for a two-year probationary period, was approved by the competent authority. Preceded by the initial approval, even subsequent approvals are accorded by the competent authority. Respondent - employee having rendered the services from initial date of appointment i.e. 14.06.1992 till the date of termination. During this period, the employee attained the status of permanent by virtue of operation of section 5(2) of the MEPS Act which is a self- operative statutory provision.
11. Once an employee attains the status of a permanent teacher, is entitled to statutory protections, those cannot be rendered redundant. As Rules 35 to 37 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 prescribe the specific and mandatory procedure for commencing and concluding an enquiry and imposing penalties, and since the petitioner-management admittedly failed to adopt such measures, 902 WP No.4244.1998 -7- therefore, the termination of the respondent-employee's services was unlawful in any case statutory provisions cannot be annihilated in the manner as has been done by the petitioner. There is no material on record to indicate and establish the compliance with the statutory provisions.
12. With regard to the employee's entitlement to backwages, the same must be assessed considering age at the time of illegal termination and the tenure of service. As the employee was appointed against a permanent vacancy and completed probation, became entitled to permanency by virtue of operation of Section 5(2) of the MEPS Act.
13. The School Tribunal having considered the termination as illegal, directed the reinstatment with backages. This decision must be considered in the light of the principles laid down by the Three Judges Bench of the Hon'ble Apex Court in case of Hindustan Tin Works Private Limited V. Employees of Hindustan Tin Works Private Limited reported in (1979) 2 SCC 80, wherein the Hon'ble Apex Court has held that once the termination of service found to be invalid, the employee is deemed to be in service. In view of the aforesaid facts, the submissions put forth on behalf of the petitioner in relation to entitlement of the 902 WP No.4244.1998 -8- employee for back-wages in absence of specific averment in that regard, does not warrant consideration.
14. The relief of reinstatment with continuity of service is to be granted, where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the employee contrary to the relevant law or in breach of statutory protections and, simultaneously, deprived the employee of earnings. When the employer is found to be at fault, resulting which the employee is directed to be reinstated, the employer could not shirk / evade responsibility of paying the wages which the workman has been deprived of by such illegal or invalid action of the employer.
15. It has been further observed by the Hon'ble Apex Court that there cannot be a straight-jacket formula for awarding relief of backwages. All relevant considerations must be taken into account. More or less, it would be a motion addressed to the discretion of the Tribunal. "Full backwages would be the normal rule" and the party objecting to it must establish the circumstances warranting departure from the rule.
902 WP No.4244.1998-9-
16. Furthermore, the persistent efforts of the employee to secure reinstatement throughout the period of the disputed termination can be viewed as an evidence of an intent to remain in service. Such consistent attempts eventually lead to a reasonable inference that the employee was not gainfully employed elsewhere, as the primary focus remained on recognizing and recovering the lost position. Considering the same burden of proving gainful employment shifts to the employer once the employee establishes a prima facie case of unemployment, and taking into account the employee's age and the nature of the statutory claims, an argument can be put forth that the employee is rightly entitled for backwages to address the financial injury caused by the illegal removal. Thus, contentions put forth by the employee deserves to be accepted in the shape of material on record and circumstances stated herein above, sufficiently establishes that the employee was not gainfully employed entailing her to claim backwages. Resultantly, submission put forth by the petitioner does not warrant consideration.
17. Admittedly, as stated herein-above, the employee was appointed at the age of 26 years (1992), considering the qualification possessed by her. Having found eligible and suitable, 902 WP No.4244.1998 -10- eventually appointment order on probation was issued which is admitted by the petitioner in its written statement before the School Tribunal. Once issuance of appointment order on probation is accepted by the petitioner - management, thereafter, continued services entails employee to statutory safeguard conferred upon permanent employee.
18. The payment of backwages involves a discretionary element, it has to be dealt with, in the facts and circumstances of each case, as has been observed by the Hon'ble Apex Court in case of Hindustan Tin Works Private Limited (supra), that there exists a statutory sanction to direct payment of backwages in its entirety.
19. A co-ordinate Bench of this Court in Shramik Shikshan Mandal and another [2017(5) Mh.L.J. 724], considered the statutory provision in the shape of section 11(2)(f) of the MEPS Act which empowers the Court to mould the relief and grant other reliefs in lieu of reinstatement.
20. Similarly, the Hon'ble Supreme Court in the case of Municipal Council, Nagal and Others Vs. Aruna Saini 902 WP No.4244.1998 -11- [(2017)4 SCC 645], had granted re-instatement to the employee considering that the termination of the services of the employee was in violation to the principles of natural justice as reasonable opportunity was not provided to the employee. In the instant case, the respondent No. 2 was a permanent employee and ought not to have been arbitrarily terminated from services without following the due procedure and the same is rightly undone by the School Tribunal.
21. Since the respondent - employee is now on the verge of attaining the age of superannuation, the judgment which is impugned in the present petition, to the extent of grant of reinstatement, is hereby modified.
22. In view of the judgment of the Hon'ble Supreme Court in Hindustan Tin Works Private Limited (supra), and considering the protracted litigation and the hardships of such trials and tribulations are not confined to the employee alone but her family members also suffered due to same in the present case, therefore, I am of the considered opinion that the respondent - employee is entitled for grant of 50% backwages till the age of retirement.
902 WP No.4244.1998-12-
23. In the light of aforesaid facts and circumstances, I pass the following order :
ORDER I] The writ petition is partly allowed.
II] The respondent No. 3 - employee is entitled for reinstatement w.e.f. 15.06.1995 and would be entitled to 50% of the back-wages between 15.06.1995 and the date of reinstatement.
III] The respondent No. 3 - employee is entitled for salary and other allownces from the date of reinstatement till the date of superannuation.
IV] The respondent No. 3 - employee will be entitled to count the service from 1995 onwards for the purpose of computation of pension, if any payable.
V] The complete proposal for pensionary benefits shall be prepared and forwarded by the petitioner - management within eight weeks from today.
VI] Considering the fact that the employee was eligible, duly qualified and was appointed on probation, completed the probation period and even thereafter continued rendering services and plea now raised by the petitioner, is an afterthought and devoid of merit. Termination being patently illegal, cost will have 902 WP No.4244.1998 -13- to be mulcted upon the petitioners. Accordingly, petitioners shall pay cost of Rs.25,000/- (Rs. Twenty Five Thousands only) towards the cost of litigation to the respondent.
VII] Rule is made absolute in aforesaid terms.
VIII] Resultantly, pending civil application also stands disposed of.
(SACHIN S. DESHMUKH, J.) Omkar Joshi