State Of Maharashtra & Ors vs Shri Gopalkrishna N.Gaggar on 30 June, 2008

[Cites 3, Cited by 1]

Bombay High Court

State Of Maharashtra & Ors vs Shri Gopalkrishna N.Gaggar on 30 June, 2008

b) The Respondent No.3 is directed to absorb the appellant as surplus teacher in another aided Junior College ::: Downloaded on - 09/06/2013 13:32:16 ::: 4 in the City of Mumbai. Till then the Department shall pay the salary to the appellant."

2. The petitions are filed by the State of Maharashtra through the Secretary, Department of School Education and Sports and the Director and Dy.Director of Education, Greater Mumbai Region.

Secretary. Petitioners state that respondent No.1 in each of these petitions is the original appellant and respondent Nos. 2 and 3 are the respective respondents (Management). They are Original Appellants and the Respondents before the Tribunal. Later on, the Deputy Director of Education is also impleaded as party to the proceedings before the Tribunal.

3. The petitioners have stated that the teachers approached the Tribunal in the facts and circumstances more particularly mentioned in the ::: Downloaded on - 09/06/2013 13:32:16 ::: 5 memo of petition.

4. Respondent No.2 is a Chairman/Secretary of a Registered Public Trust. That is an Educational Trust viz., Laxmi Education Society.

It is managing two Degree/senior colleges and two Junior colleges. The first one is known as Sheth L.U.Zaveri and Sir M.V.College of Arts, Science and Commerce. The second is known as Chinai College of Commerce, Andheri. The other respondents before the Tribunal are the Principals of these colleges. The colleges are aided and recognised by the Education Department of State of Maharashtra.

5. The petition proceeds on the basis that the respondent No.2 Trust decided to close down the junior colleges and therefore sought permission by letter dated 23rd March 2007 from the Dy.Director of Education. The Dy.Director of Education informed respondent No.2 by a letter ::: Downloaded on - 09/06/2013 13:32:16 ::: 6 dated 29th March 2007 that the permission sought is refused. It was however decided by the Trust that the Junior College will be conducted upto the second term of academic year 2007 - 2008.

The Trust decided not to grant any admission to the students for 11th std. in the academic year 2007-08.

6. The petition proceeds to state that two junior colleges can accommodate 120 students per division as per rules laid down by the Government. There are Four (4) divisions in Science, Two (2) in Arts and Eight (8) in Commerce sanctioned by the petitioners, for Junior colleges. As against the total intake capacity of 1560 Students for the academic year 2007-08, respondent No.2 admitted only 135 students.

7. It is in these circumstances that a termination notice dated 13th June 2007 came to ::: Downloaded on - 09/06/2013 13:32:16 ::: 7 be issued to the teachers. The termination notice reads thus:-

             ."Notice         under       Section         25A/26          of

             Maharashtra         Employees of Private Schools

(Conditions of Service) Rules, 1981.

                     ig You      are     employed by        the        Sheth

             L.U.J.          &    Sir     M.V.College         of       Arts,
                   
             Science     &       Commerce,       Andheri          (East),

             Mumbai      400       069,    run      by    the          Laxmi

             Education        Society     as a Teacher            in     the
      


             subject of Chemistry.
   



             2.         The      Laxmi Education Society                 has

decided to close down the Junior Colleges run by it as under:

(a) XIth Std. of the Colleges would be closed down at the end of the first term of the academic year 2007-2008.

::: Downloaded on - 09/06/2013 13:32:16 ::: 8

(b) XIIth Std. of the Colleges would be closed down by the end of the second term of the academic year 2007-2008.

      (c)        The        Junior    Colleges        would       be

      completely        closed down at the end of the

      second
              ig  term         of     the   academic            year

      2007-2008.
            
      .          In     view     of the closure           of     the

      Junior     College wherein you are                employed
      


      as    above, your services would no                  longer
   



      be    required beyond the end of the                     first

term of the academic year 2007-2008.

      .          Notice        is hereby given to you as

      required        the     provisions of the           Section





      25A/26     of     the Maharashtra Employees                 of

      Private     School        (Conditions of          Service)

      Rules,     1981        that on the closure of              the




                                            ::: Downloaded on - 09/06/2013 13:32:16 :::
                                                                                 9




                                                                                
                                                        
               Junior       College       as from the end             of     the

               First       Term     of the academic           year,         your

               services           shall          automatically             stand




                                                       
               terminated          from    the close of the                first

term of the academic year 2007-2008.

               .            By     endorsing       a     copy       of      this
                          
               Notice to the Dy.             Director of Education,

               Greater       Mumbai we are requesting him/her
                         
               to        absorb     you      elsewhere        under          the

               provisions          of     Maharashtra Employees               of

               Private       Schools, (Conditions of Service)
      


               Rules,       1981        and in     particular         Section
   



               26(2)(iii) of the said Rules."





     8.        Such       letters are issued to all                 Teachers

     who   approached        the Tribunal.             The    termination





     notice    states        that       the Education        society         has

     decided       to     close down Junior College run by                    it

     and   more         particularly       in the      manner       set      out




                                                        ::: Downloaded on - 09/06/2013 13:32:16 :::
                                                                                   10




                                                                                  
                                                          
     therein.            In     view of the closure of the               Junior

     College,           wherein       the teacher has been            employed

     the     service           would no longer be required               beyond




                                                         
     the     end        of the first term of the academic                    year

     2007-08.            The     notice has further          informed          the




                                            
     teacher           that     on    the    closure      of    the      Junior

     College,           the     services will stand          automatically

     terminated           and
                               ig this is a notice under Rule                  25A

     and     26        of the Maharashtra Employees of                  Private
                             
     Schools           (Conditions of Service) Rules 1981 (MEPS

     Rules for short).                The intimation was sent to the

Dy.Director so that he takes steps to comply with Rule 26(2)(iii) of the MEPS Rules.

9. The petitioners state that aggrieved by this termination notice teachers approached the Tribunal by filing appeals under section 9 of the MEPS Regulation Act, 1977. The appeals were filed on the basis that the term "School" as defined in the said Act includes a Junior College and, therefore, the employees and Teachers ::: Downloaded on - 09/06/2013 13:32:16 ::: 11 employed by the same can approach the Tribunal against the termination.

10. Before proceeding further, it would be advantageous to refer to section 9 of MEPS Act.

The same reads thus:-

"9.

                             (1)        Notwithstanding            anything

                contained          in any law or contract for the
                          
                time       being        in force, any employee in              a

                private school -
      


                (a)          who    is       dismissed or removed            or
   



                whose       services are otherwise             terminated

                or        who is reduced in rank, by the                 order





                passed by the management;               or



                (b)          who        is     superseded          by       the

Management while making an appointment to any post by promotion, and who is aggrieved, shall have a right of appeal ::: Downloaded on - 09/06/2013 13:32:16 ::: 12 and may appeal against any such order or supersession to the Tribunal constituted under section 8;

Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court of competent jurisdiction or is pending before such court, on the appointed date or where the order of dismissal, removal otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st July 1976;

      
   



                (2)        Such   appeal shall be made by the

                employee     to the Tribunal, within             thirty





                days     from the date of receipt by him                of

                the      order    of    dismissal,            removal,

                otherwise     termination    of        service          or

reduction in rank, as the case may be;

Provided that where such order was made before ::: Downloaded on - 09/06/2013 13:32:17 ::: 13 the appointed date, such appeal may be made within sixty days from the said date.

(3) Notwithstanding anything contained in sub-section (2) the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty or sixty days as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period;

      


             (4)        Every appeal shall be accompanied
   



             by    a fee of (five hundred) Rupees, which

             shall     not     be     refunded      and      shall       be





             credited     to the consolidated fund of the

             State."





     11.     The     petition also proceeds to state that

     two   writ    petitions        and    one    Public       Interest




                                                   ::: Downloaded on - 09/06/2013 13:32:17 :::
                                                                                 14




                                                                                
                                                        
     Litigation       were     filed      in     this      Court.            The

petitions were filed on the Original Side of this Court by a teacher, by the Management and one person claiming to be a public spirited citizen.

These petitions were placed before the Division Bench presided over by the Hon'ble The Chief Justice and by a common order the division bench disposed of the petitions. The Division Bench in the operative order directed thus:-

"(a) The Government would expeditiously take decision in accordance with law, upon the notice for closure submitted by the management of the colleges.

(b) The teachers who have approached this Court are entitled to pursue their applications before the College Tribunal and the Tribunal is free to decide their applications in accordance with law, ::: Downloaded on - 09/06/2013 13:32:17 ::: 15 without being influenced by any of the observations made in this order.

(c) The parties to the proceedings before the Tribunal are free to put forward their points of view for the consideration of the Tribunal and as permissible in law.

      (d)        The    students         who       have       already

      been     granted admission by the college by

its own or under the orders of this Court in the presence of the Education Officer shall be permitted to complete their academic course for two years i.e.11th and 12th standards. The college will not in any way hamper the educational career or curtail the said period under any circumstances.

      (e)        Out    of        23 applications             of     the




                                                ::: Downloaded on - 09/06/2013 13:32:17 :::
                                                                       16




                                                                      
                                              
      students       filed       before us,        since       seven

      students       are       already studying in             other

      colleges,          their request for admission to




                                             
      the     colleges is declined and it will not

      be     proper       to    transfer      them      from       one




                                
      college       to     another     at     this        juncture

      particularly             when     first          term        has
              
      practically           concluded.           However,           as

      regards       the remaining sixteen               students,
             
      who     have       not taken admission            anywhere,

      the     college       is directed to          grant        them

admission forthwith and admit them to the current academic year of 11th standard.

   



      In     the     event the above students do                   not

      take     admission         by    5.00      p.m      on     21st





      September          2007, they shall be deemed                 to

have waived the benefit of this order.

(f) The above directions are obviously without prejudice to the rights and contentions of the parties, which are ::: Downloaded on - 09/06/2013 13:32:17 ::: 17 available to them before the respective authorities/tribunal and they are also free to take all the pleas that have been taken by them in the present petitions."

12. Thereafter, the appeals were placed before the School Tribunal. The School Tribunal had before it the written statement filed by the Management. It had before it the orders and directions of the Court in the above writ petitions and public interest litigation. It had before it the data/record of the students admitted in the Junior College. The Tribunal had before it the stand of the teacher that the termination of a permanent employee without any adherence to the principles of natural justice and contrary to the Rules and Regulations, is ex facie bad in law. There is no question of the Institution or the Junior College being required to be closed down. The closure is with ulterior ::: Downloaded on - 09/06/2013 13:32:17 ::: 18 motive of converting an aided institution into an unaided one for profits and benefits. Their appeals proceed on the basis that the permission sought by the Management from the Government/Dy.Director of Education has been refused. Therefore, the notice could not have been displayed on the notice board. If there is no closure in the eyes of law, then, there cannot be any termination under the garb of the same.

13. At the same time, the Tribunal also had before it the stand of the respondent No.3 before it, viz., Dy.Director of Education. The written statement which was filed by the Dy.Director proceeds on the basis that the management has resorted to the above action, despite the permission not being granted. It is very categorically averred that the Trust should not be allowed to close down the Junior College. No permission is given in that behalf. It was also contended that from a perusal of Rule 25A and ::: Downloaded on - 09/06/2013 13:32:17 ::: 19 other Rules, it is apparent that the notice does not attract these rules. Once the Dy.Director has sent a letter intimating that the permission to close down the Junior College has been refused, then, there is no question of the Rules coming into play. That apart, placing reliance upon Rule 7.5 of the Secondary School Code, it was contended ig that the proviso thereto would apply and without any permission, the closure cannot be resorted to. It was specifically urged in the written statement that the case set up of reduction of workload in junior colleges is not something natural. The management and principals of both colleges have prevented admission intentionally to close down the junior college.

Therefore, the closure due to shortage of students is not bonafide. The State Government has specifically stated that after the High Court's decision, admissions were given under supervision of Dy.Director of Education who deputed one Inspector, Mr.Pawar, to supervise the ::: Downloaded on - 09/06/2013 13:32:17 ::: 20 admission process. At that time, very few students remained to be admitted. Admissions, therefore, were much less than the sanctioned capacity. In such circumstances, if teachers are rendered surplus, then, to absorb them is not the responsibility of State and, therefore, their payment, allowances and other benefits must be borne by the Management of the Institution. In such circumstances, the Tribunal was requested to issue appropriate directions to the Management in the interest of students and society as a whole.

14. At this stage, it would be pertinent to reproduce the prayers in the Appeal. They read thus:-

"(a) that this Hon'ble School Tribunal be pleased to hold and declare that the Termination Notice dated 13.06.2007 (Exhibit "C") received by Appellant during Summer Vacation illegally ::: Downloaded on - 09/06/2013 13:32:17 ::: 21 terminating services at the end of First Term of Academic Year 2007-08 quashing and setting aside the same and declare it as illegal and direct Respondent Nos.1 and 2 to continue the Appellant on the same post of the same subject as permanent Asst.Teacher in Respondent No.2 Junior ig College and pay salary to Appellant regularly;

Alternatively;

      


      (b)          that this Hon'ble School Tribunal
   



      be      pleased         to      issue       directives            to

      Respondent             Nos.1     and    2        to       declare





      Appellant          as a permanent Asst.Teacher as

      surplus          and    direct Respondent               No.3      to

      absorb       Appellant in nearest Aided Junior





      College          for    the     same subject            and      pay

      salary           regularly      till         the      date        of

      absorption             of     Appellant        in     the        new




                                                  ::: Downloaded on - 09/06/2013 13:32:17 :::
                                                                                  22




                                                                                 
                                                         
                College        according to provisions of                   Rule

                26 of the MEPS Rules, 1981."




                                                        
     15.        The         Tribunal     consistent            with         this




                                            
     material        and     in the light of rival             contentions

     framed     points        for determination and              the      first

     point

was, whether the closure notice dated 13th June 2007 is proper and legal. The finding therein is in affirmative. The second point is whether the teacher - appellant is rendered surplus and entitled for absorption. That finding is also in the affirmative.

16. The Tribunal on the first point had before it the arguments of the appellants who reiterated the contents of the appeal memo. The appellants urged that permission to close down the college has been refused. There is no closure contemplated in law. Thus, there is no question of a unilateral decision to close down ::: Downloaded on - 09/06/2013 13:32:17 ::: 23 being taken by the management. Therefore their services cannot be terminated. It was also contended that the number of students taking admissions had reduced because the students could not wait indefinitely for being admitted to colleges. Therefore, alternatively, it was urged that the teacher is rendered surplus and entitled for absorption in any aided junior college as per Rule 26 of the MEPS Rules.

17. The management reiterated its stand. Its stand is very clear, inasmuch as its written statement proceeds on the basis that there is no question of any prior permission being sought or granted for closure. All that the management is required to do is to intimate its intention to close down at the end of an academic year so that from the next academic year, alternate arrangement can be made by all concerned. The stand taken in written statement and reiterated before the Tribunal was that respondent No.2 is a ::: Downloaded on - 09/06/2013 13:32:17 ::: 24 Minority institution. Reasons for closure are bonafide. No prior permission is necessary.

That apart, it was contended that there is no adequate response from the students. There are very few students who have secured admission for current academic year. There is considerable reduction in the strength of students because of which workload is reduced. In such circumstances and when the management has no objection for absorption of the teacher in other Junior Colleges as per law, the Tribunal should sustain the decision of the management.

18. The management also highlighted the point that the financial loss and gradual reduction in strength is on account of accumulated losses in both colleges, figures of which were made available, till 31st March 2007. The losses have occurred on account of the State not disbursing the non salary grant on time. The laxity of the Education Department and its refusal to release ::: Downloaded on - 09/06/2013 13:32:17 ::: 25 the grant is subject matter of challenge in writ petition No.73 of 2002. That writ petition is still pending in this Court. Therefore, the Management was constrained to close down the Junior College and its decision is bonafide.

Consequently, all Appeals be dismissed.

19. The Tribunal teacher was College. There the master - servant relationship. submission that minority institution, this aspect in Tribunal took put forward loss, reduction financial constraints grant being not made available. reasons that that there are management charges and, conduct any reduction in concerned, colleges have been accepted. established strength of question. did not dispute that the a permanent employee of the Junior is no denial and no dispute about As far as the respondent No.2 is linguistic there is no discussion on the order of Tribunal. The up for consideration three reasons by the management viz., financial in the strength of students and on account of non salary It observes that have been put forward would show no sufficient funds with the ::: Downloaded on - 09/06/2013 13:32:17 ::: 26 for stationery, electricity and water therefore, it is not possible to educational institution. As far as the strength of student is management's stand that two new been started in the vicinity has The new colleges being in the vicinity which reduced the students in the two colleges in This stand has been accepted.

According to the Tribunal, there is fall in strength of students from 2001. Some of the Lecturers were rendered surplus and absorbed in other Junior Colleges as per the orders of Dy.Director. For all these reasons, the Tribunal found that there is substance in the plea of management and observed that the closure is bonafide.

20. The Tribunal also accepted the contention of the management that no permission is required ::: Downloaded on - 09/06/2013 13:32:17 ::: 27 in law for closure of junior college. It also took into account the situation subsequent to the order of Division Bench of this Court and that is how it passed the order.

21. Thus, Tribunal's conclusion is that the termination is not bad in law. The termination is on account ig closure and which is bonafide.

However, the teacher is rendered surplus due to reduction in workload and, therefore, the concerned Appellant must be treated as surplus teacher and he should be directed to be absorbed by respondent No.3, Dy.Director as surplus teacher in another aided junior college in Mumbai. Till then, the department must pay the salary of the teacher. It is this conclusion of the Tribunal which is assailed in each of these petitions.

22. Mr.Sawant, learned Senior Counsel appearing for petitioners contended that the ::: Downloaded on - 09/06/2013 13:32:17 ::: 28 order of the Tribunal is patently erroneous and unsustainable. He submits that the Division Bench order of this Court is very clear. Despite the division bench directions being placed before the Tribunal, it proceeded to ignore them and has rendered a judgement which is wholly unsustainable in law. Mr.Sawant submits that the order passed by the Tribunal holding that the closure is bonafide is without jurisdiction. He submits that when the Issue No.1 is framed by the Tribunal, it is apparent that the Tribunal was deciding the issue of closure being bonafide or not itself. Thus, the Tribunal is usurping the powers of the authorities under the Secondary School Code and more particularly the Education Department. He submits that the Tribunal was concerned with an appeal challenging the termination of the teacher. It may be true that under the garb of closure, the termination has been affected. Therefore, the Tribunal may be required to incidentally go into the question of ::: Downloaded on - 09/06/2013 13:32:17 ::: 29 whether there is closure factually but that does not empower the Tribunal to render a conclusive finding with regard to bonafides of the same.





                                                          
     That     would       mean that in all such               matters,          the

     Tribunal       would        become the authority              displacing




                                           
     Education         Department            and       Directorate               of

     Education.           When the institutions are recognised

     by     the
                          
                   Education Department and                 the       Financial

     assistance           is     also     granted     by      it      and       law
                         
     postulates       its        control over such            institutions,

the Tribunal is not a parallel authority.

23. Mr.Sawant's submission is that if the Division Bench order is perused as a whole, it is apparent that the Tribunal acted contrary to it.

The Division Bench had before it the entire controversy. The division bench had matters arising out of termination as well. The management went before the Division Bench with a grievance that the department desires to appoint Administrator taking over the management and put ::: Downloaded on - 09/06/2013 13:32:17 ::: 30 the entire school in charge of the Administrator without any opportunity to the management to show cause. The order in that behalf is void as it is contrary to the principles of natural justice was the submission. The division bench recorded the statement of the State Government that it would not proceed to take action in pursuance of its orders and would be willing to give a fresh opportunity to the management before it passes any order appointing the Administrator. That is one part of it, according to Mr.Sawant.

24. However, the Division Bench was clearly told that the matter about closure is pending.

The State has yet not taken a decision permitting closure of Junior college. The controversy is pending and the State would take a decision expeditiously. That is how the directions proceed. In such circumstances, the Tribunal should not have taken upon itself the task of adjudication as to whether the closure is ::: Downloaded on - 09/06/2013 13:32:17 ::: 31 bonafide or not. Therefore, the Tribunal's order should be quashed and set aside on this ground alone.

25. Mr.Sawant has contended that the Tribunal was very much aware of the fact that the termination letter/order assigns a reason and more particularly clause 2 thereof speaks about closure of Junior College. The college is started in the year 1976. He submits that Secondary School Code applies even to a Junior College. Clauses 3.1, 3.2 and 7.5 have been relied upon by Mr.Sawant in support of his contention that closure is not an absolute right.

He submits that clause 7.5 and 7.6 and the proviso to 7.5 speak of withdrawal of recognition. Therefore, without the decision of the Director, no management can close down the school. He submits that notice of one academic year is something which is an intimation, in addition to seeking permission. That by itself ::: Downloaded on - 09/06/2013 13:32:17 ::: 32 does not mean that no permission is required.

That apart, in this case, Rule 25 and 26A of MEPS Rules are not attracted. The alleged closure is voluntary and that of the entire junior college.

It is by the management. Therefore, there is no responsibility that of the department. The responsibility of Dy.Director would arise only if there is a closure on account of de-recognition of the institution/school. If the closure is for other reasons, then, there is no responsibility and even on that ground the impugned order is liable to be quashed and set aside. In support of his contentions Mr.Sawant has invited my attention to several decisions of this Court.

26. On the other hand, Mr.Dighe appearing for the teachers submitted that it is true that they have not filed any writ petition challenging the tribunal's order. However, in the peculiar facts of this case, when already a petition being on record, this court must perform its duty and pass ::: Downloaded on - 09/06/2013 13:32:17 ::: 33 appropriate orders protecting services of the teachers. Further, if not anything, the Tribunal is right in awarding the alternate prayer and it had every jurisdiction to do so, is the submission. He submits that the prayer clause

(b) with regard to absorption is in the alternative. Ultimately, if the closure is found to be bonafide, then, services of teachers have to be protected, is the mandate of law. When the Tribunal had before it as a party, even the Dy.Director, it thought it fit to issue directions of absorption and this Court in its equitable, discretionary and extra ordinary jurisdiction under Article 226 of the Constitution of India should not disturb that part of the Tribunal's order where the services are protected.

27. Mr.Dada learned Senior Counsel appearing for management, supported the impugned order completely. In his submission, there is nothing ::: Downloaded on - 09/06/2013 13:32:17 ::: 34 like a parallel enquiry. He submits that when the State Government and Dy.Director take no steps even after the order and directions of Division Bench, then, they cannot turn around and blame the Tribunal for going into the correctness or otherwise of the reasons assigned for termination. It is not as if that the Tribunal has taken upon itself the adjudication as contended. It is clear that when the termination was in issue and grounds assigned are of closure of the school, then, an incidental power is always with the Tribunal to probe into the correctness of this reason. While he does not dispute the powers of the Education Department, it is urged that the management has, therefore, rightly argued before the Tribunal that scrutiny of the reasons would reveal that its act is bonafide and in accordance with law. Once no permission is required and Rule 7.5 (proviso thereto) not taking within its import a prior permission but an intimation, then, Tribunal's ::: Downloaded on - 09/06/2013 13:32:17 ::: 35 order is in accordance therewith and should not be interfered. Ultimately, this is a finding of fact based upon materials placed before the Tribunal. Such findings of fact are not liable to be interfered with under Article 226 of the Constitution of India, unless they are found to be perverse or vitiated by serious error apparent on the face of record. Mr.Dada submits that Government has created a situation whereby the teachers have been rendered surplus. With a view to avoid its responsibility of rehabilitation of the teachers by their ultimate absorption in another junior college, the State has filed this petition. The conduct of the State Government and more particularly that of the Dy.Director and Director of Education is not bonafide. They have brought about a situation whereby the management finds it impossible to run the school and is compelled to do away with the services of permanent teachers. It is they who have permitted other education institutions in the ::: Downloaded on - 09/06/2013 13:32:17 ::: 36 vicinity. In such circumstances, there is general reduction in the number of students which pattern is consistent. Once, there is reduction in the strength of students, then, naturally workload gets reduced. If the workload gets reduced, then teachers' strength should also come down. This is what is precisely faced by the management.

In such circumstances, the order of the Tribunal should not be interfered with.

28. According to Mr.Dada, there is one more reason why Tribunal's order should not be interfered with. He invited my attention to the grounds and prayers in the Appeal. He also invited my attention to the State's affidavit before the Tribunal. My attention was invited to the issues framed. The issue is framed in the light of the pleadings. The State itself has raised an issue of closure not being bonafide.

Now, it is estopped from contending that the Tribunal has no jurisdiction. Mr.Dada was at ::: Downloaded on - 09/06/2013 13:32:17 ::: 37 pains to emphasise that any finding on the issue of jurisdiction by this Court would mean that the employee does not get any protection. The employee can challenge the termination order and during the course of such challenge, he can question bonafides of closure. It is in such circumstances that the Tribunal has gone into the question and no general rule has been laid down.

If in the facts of this case, Tribunal's approach cannot be faulted, then, the judgement must be sustained. Consequently, the petition should be dismissed.

29. Learned Senior Counsel for petitioners also raised another issue with regard to the interpretation of Rule 25A and 26 of the MEPS Rules. He also submits that the minority status allegedly proclaimed does not mean that the institution can act contrary to the mandate of secondary school code. Once recognition is in the interest of education and is an effective ::: Downloaded on - 09/06/2013 13:32:17 ::: 38 vehicle of education it does not destroy the minority character but satisfies the test of reasonableness. Then, minority status apart, the closure must be justified, otherwise by the institution. It cannot take protection of this status and seek perpetuation of an illegal act.

He submits that the judgements relied upon by the Tribunal has no application in the facts of the present case. Therefore, Tribunal's order on the alternate pleas also cannot be sustained.

30. With the assistance of the learned Senior Counsel appearing for respective parties, I have perused the petitions and annexures thereto. I have also perused the orders impugned in the petitions. I have also perused with their assistance the relevant statutory provisions and the decisions in the field.

31. This is a case where the appeal before the Tribunal was filed by the concerned appellant ::: Downloaded on - 09/06/2013 13:32:17 ::: 39

- teachers impugning an order of termination dated 13th June 2007. The appeals were filed in the first week of July 2007. When the appeals were pending before the Tribunal, the above matters were brought before this Court. The two petitions and the public interest litigation has been referred to by me already. When these were placed before the division bench of this Court, various contentions were raised as is apparent from the reading of the Division bench order.

The first contention was that the management should not be saddled with an Administrator of its school without any opportunity being given to it. That order was made in the teeth of the petitions by the State and it proceeded to appoint an Administrator on 25th July 2007. The show cause notice dated 13th July 2007 issued by the Director of Education proposing to appoint an Administrator was also issued after the Tribunal was approached by the teachers. The petition by Laxmi Education Society was filed on 23rd July ::: Downloaded on - 09/06/2013 13:32:17 ::: 40 2007 before this Court. In these circumstances, it prayed that the orders appointing Administrator be quashed and set aside as they are illegal and unjustifiable as well. They violate the principles of natural justice.

32. The public interest litigation which was filed on 4th July 2007 prayed for issuance for an appropriate writ order or direction directing first respondent to the petition to hold education activities and give admissions for full academic course, to remove all notices put up on notice board etc.

33. The petition by teachers was also there before this Court. Management's petition was disposed of on account of statement recorded in para 4 of the Division Bench order, viz., a fresh show cause notice will be issued for appointment of administrator and appropriate orders will be passed after hearing the management. Mr.Sawant, ::: Downloaded on - 09/06/2013 13:32:17 ::: 41 learned Senior Counsel makes a statement that the issue of Administrator is pending consideration of the appropriate authority.

34. As far as closure notices are concerned, the Division Bench had before it the contention of the teachers and also that of the management.

     It     had     before
                            ig   it the stand of       the     Government

     also.         The     Government       has     been     consistently
                          
     saying        that     it has jurisdiction to examine                  the

     merits        or     otherwise of the issuance of               closure

     notice        and it must fall within the scope of                     the
      


     statutory           provisions.      The     management         on     the
   



     other        hand     has been all through out            contending

     that         there     is    no     question     of     seeking        any

permission for closure but they have only to give an intimation in that behalf which has been duly given. After noting the rival contentions, the Division Bench also noticed the decisions in the field, viz., the Judgement of this Court (Khandeparkar, J) in the case of Pujya Saneguruji ::: Downloaded on - 09/06/2013 13:32:17 ::: 42 Vidya Prasarak Mandal and a judgement of Division Bench in the case of Umesh Ambadas Shirapuri & Ors. Vs. State and Ors., W.P.No.6596 of 2004 decided on 23rd August 2004 and the judgement of learned Single Judge reported in 2004(2) M.Law Reporter 854, (Mahatma Gandhi Taluka Shikshan Mandal, Chopda and Anr. Vs. Sambhaji A. Patil and Anr.) Vs. igS.Patil. Thus, the decisions in field were also perused by the Division Bench.

35. Once the State Government has been contending that the Management has no unilateral discretion with regard to retrenchment and closure is also not its absolute right but on both occasions prior approval is necessary and the Division Bench specifically directs that these are matters which are pending before the appropriate authority, so also renders no final opinion on the rival pleas, then, it is not clear to me as to how the Tribunal went into this aspect. It was plain duty of the Tribunal notto ::: Downloaded on - 09/06/2013 13:32:17 ::: 43 have gone into the bonafides of closure in this case. The Tribunal has acted patently contrary to the order of the Division Bench in this behalf. The State Government's stand before the Division bench was that the petition of the management is premature. In fact the management is prempting the exercise of jurisdiction by the competent authority under the relevant law is the submission of the State. Once the notice of closure was issued by the Management which was duly endorsed to the Dy.Director but the Government and the Dy.Director is examining the merits and de-merits of the pleas in that behalf, that the Division bench observed that it is unnecessary to decide the matter and that would amount to pre-judging the same. If the Division Bench order is read as a whole together with the directions issued therein, then, it is apparent that the order of the Division Bench dated 18th September 2007, clearly being in the field and not challenged reversed, the Tribunal's duty was ::: Downloaded on - 09/06/2013 13:32:17 ::: 44 to abide by it. Under the garb of going into the reasons for termination of the teacher, the Tribunal could not have taken upon an enquiry of the closure being bonafide or not in the facts of this case. It went into the reasons for closure and also the necessary data in that behalf. It has not only scrutinised the said material but gone ahead and rendered a conclusive finding that the strength of student having gone down and that financial loss being caused, reasons for closure are genuine and bonafide. There is substance in the contention of Mr.Sawant that in the peculiar facts of this case it was indeed a parallel enquiry. His grievance is that State Government having refused permission for closure earlier but the matter being examined again, the Tribunal could not have thwarted the enquiry before the Appropriate Authorities. There is substance in this contention.

36. Having found that the Tribunal should not ::: Downloaded on - 09/06/2013 13:32:17 ::: 45 have gone into this aspect even under the garb of examining legality and validity of the termination order, the course open for me is to set aside the order and leave the matter to the State Government. However, the management as well as the teachers have made a serious grievance before me that the State has not taken any decision pursuant to the Division Bench order and directions although, the academic year 2008

-09 has commenced. The orders and directions of the Division Bench are issued as early as on 18th September 2007 and the directions are to decide the matter expeditiously. Ultimately, it was hoped that all concerned have the interest of students and the society at large in mind. They would take a expeditious decision so that there is no confusion and chaos. There is substance in this grievance of the management and the teachers as well.

37. Therefore, I had enquired of all sides as ::: Downloaded on - 09/06/2013 13:32:17 ::: 46 to whether they would be agreeable if the State Government makes a statement that the decision on closure would be taken expeditiously as possible and within a period of four weeks so that these petitions can be disposed off accordingly. I had indicated to all parties that the termination order would be held in abeyance in that event and the management ig would not be called upon to pay salaries and/or to reinstate the teachers even if I set aside tribunal's order. Let the issue be examined by department of education including the management's contention that the said Department has no jurisdiction to decide the bonafides of closure. The teachers expressed their willingness if the process would be expedited.

Even the State Government made a statement that within a period of four weeks from today the final decision would be rendered. However, the management contended that it has no desire before the State Government to go and urge the self same contentions. It contended that the department of ::: Downloaded on - 09/06/2013 13:32:17 ::: 47 education has no authority to interfere with the management's right to establish and close down the school. There is no question of any prior permission or notice or approval. All that is contemplated is an intimation so that alternate arrangement can be made. Therefore, the management is not ready and willing to go before the Director of Education to sort out this issue.

Despite I indicating that the plea of jurisdiction of the Authorities can be kept open, the Management did not agree to go before the Director of Education.

38. It is in these circumstances that I had to go into rival contentions and in the light of the clear directions of the Division Bench, I am of the opinion that the order of the School Tribunal cannot be sustained. In such circumstances, the course open for me would be to direct the authorities to implement the order of the division bench forthwith and/or reviving the ::: Downloaded on - 09/06/2013 13:32:17 ::: 48 appeal before the Tribunal by remanding it for fresh consideration so that the legality and validity of the order of termination can be examined on other grounds. The remand is necessary, according to me, also with regard to applicability of Rule 25A and 26 and whether the Tribunal has jurisdiction to direct absorption of teachers on the spacious plea that they are rendered surplus or that the consequence is automatic in law after the Termination order is quashed and set aside.In my view, the proper course in this case would be that after setting aside the order and direction of the Tribunal, the appeal be restored to its file for re-consideration of all such issues. None dispute that the Tribunal has not gone into the allegations in paras 7 and 8 of the Memo of Appeal. Similarly, the Tribunal has not applied its mind to the alternative plea of absorption in proper perspective and considering the same from all angles.

::: Downloaded on - 09/06/2013 13:32:17 ::: 49

39. It would be just, fair and proper to remand the matter because the Tribunal in its eight (8) page order has merely reproduced the rival contentions in the first five pages and then referred to some data. It has not addressed itself on the issue of jurisdiction at all. The management is, ig therefore, right to the extent that when the plea of jurisdiction was not raised by the State Government before the Tribunal and the Tribunal had no occasion to deal with it, then, it would be unfair to lay down any broad principles of law so as to bind the Tribunal in all future cases. Ultimately, the issue of termination and the reasons for the same are interlinked, according to management and, therefore, the Tribunal must have jurisdiction to examine all pleas including the aspect of its own jurisdiction.

40. In my view, it would be fair, just and ::: Downloaded on - 09/06/2013 13:32:17 ::: 50 proper that while setting aside and quashing the impugned order and judgment of the Tribunal all pleas including that of jurisdiction are kept open for being urged before it and consider the same afresh so also in accordance with law.





                                               
     Ultimately,              the    order of Tribunal             renders         the

     teachers           surplus.         Such        course      also       affects

     his/her        status.
                               ig     If     the teacher         is     permanent

     employee,           then, his/her status that of a surplus
                             
     teacher        and making them only eligible for                          being

     absorbed           in     some other school             affects        him/her

     seriously.              Before such directions are given, the
      


     Tribunal           should       have    applied its mind               to     the
   



     consequences              thereof.         The Tribunal has not                at

     all     applied           its    mind      to     all    these         aspects





     including           that       of the interest of students                    and

     that     of        the     community as a whole.                 By      merely

     referring           to     some figures and decisions in                      the





     field,        neither the issue of jurisdiction nor the

     aspect        of        bonafides      of the closure            have       been

     satisfactorily              decided.       There is no opportunity




                                                              ::: Downloaded on - 09/06/2013 13:32:17 :::
                                                                                   51




                                                                                  
                                                          
     to    raise        the     pleas      including       the      one       more

     specifically            urged before me.         Whether it could,

     in    the     peculiar facts of this case and                      in     the




                                                         
     teeth       of the Division Bench decision, conduct an

     enquiry       into the bonafides of the closure or not




                                              
     is    something which the Tribunal was required                            to

     address.            However,         in    the      light        of       the

     observations
                           igmade    by   me, hereinabove             and      the

statement of State Government and the petitioner, it would be fair, just and proper to direct that the authority must decide the aspect of closure pending before it as expeditiously as possible and within four weeks from today. The Authorities must decide the matter without being influenced by the observations of the Tribunal and on its own merits and in accordance with law.

The authorities must also decide and rule upon the issue of jurisdiction, inasmuch as, whether any prior permission is contemplated before closure or not in law. The management is at liberty to raise all pleas in that behalf and ::: Downloaded on - 09/06/2013 13:32:17 ::: 52 merely because it appears before the Education Department, does not mean that it cannot challenge its final order if the same is adverse to it by availing of all remedies available including writ jurisdiction.

41. Once, I have rendered a finding that the division bench igdirected the authorities to go into the issue of closure and it should be decided expeditiously, then, remanding the matter back to the Tribunal particularly to decide the bonafides of closure would not be permissible.

Even otherwise, That would mean even the Division Bench orders and directions can be contravened by me. Once that has not been permitted by me, then, the Tribunal cannot be directed to go into the issues once again. Once the management as well as teachers both are going to be represented before the Education Department, then the aspect of closure should not be reopened by the Tribunal.

::: Downloaded on - 09/06/2013 13:32:17 ::: 53

42. However, the Tribunal can go into the aspect of termination of the employee and whether termination of the permanent employee by a notice without any enquiry preceding it is fair, just and proper is an issue still at large before the Tribunal and the same be gone into in accordance with law.

Equally the Tribunal must apply its mind by considering the applicability of Rule 25A and 26 afresh, if it concludes that the termination cannot be quashed and set aside. In that event, whether the closure would come within the purview of Rule 25A and whether any directions under Rule 26 could be issued is something which must be examined by the Tribunal independently and without being influenced by its earlier order. In the earlier order, there is no discussion as to why the Tribunal declares the appellant before it as surplus teacher; why it thinks it fit to direct his absorption and whether it has the power to direct so by taking ::: Downloaded on - 09/06/2013 13:32:17 ::: 54 into consideration the alternate prayer of the teacher is something which the Tribunal has completely omitted from its consideration. The financial impact of its directions has not been considered. In other words, who should bear the finacial burden and why is not clear at all. It was necessary to go into this controversy and address it in details. Thus, that aspect is still unclear.

43. In the light of the above, Rule in each of the petitions is made absolute. The order of the Tribunal is quashed and set aside and the same is substituted with orders of remand of the appeals in question to it on the points noted above. Further, the petitioners are directed to decide the issue of closure pending before it as expeditiously as possible and within four weeks from the date of receipt of copy of this order.

It must be decided on its own merits and without being influenced by any observations of the ::: Downloaded on - 09/06/2013 13:32:17 ::: 55 Tribunal or this Court. Merely because the Director of Education is a party - petitioner does not mean that he will not decide the issue of closure fairly and impartially. He must decide it independently and after hearing all concerned.

44. In the peculiar facts, there will be no order as to costs.

45. At this stage Mr.Dighe makes a serious grievance that after the termination for some period of time salaries and wages of the teachers were paid. They were paid for a period of four months and thereafter the teachers are without salaries and wages. I have remanded the matter back to the Tribunal. The issues also are crystalised more or less. If the teachers are rendered surplus, then, whose responsibility is to rehabilitate and absorb them and who should be liable for their salary and whether the State ::: Downloaded on - 09/06/2013 13:32:17 ::: 56 should be directed to release salary grant in that behalf are all matters which must be addressed by the Tribunal. They cannot be gone into and decided by me for the first time by me.

Therefore, the Tribunal should decide the Appeal as expeditiously as possible and within three months from the date of receipt of copy of this order.

Till the period the Tribunal renders its decision, it will not be possible to direct payment by either State or the management. That will have a adverse effect and may affect the controversy before the State Government so also the Tribunal. That would be prejudging both issues. In such circumstances, I am not in a position to accept the request of Mr.Dighe.

Since the delay has occurred also on behalf of Education Authorities, the Management also cannot be directed in the peculiar facts of this case to release the salaries more so, when the aspect of legality of termination is still at large.

::: Downloaded on - 09/06/2013 13:32:17 ::: 57

46. At this stage, Mr.Rao for Laxmi Education Society/Management in all these matters prays for stay of this order so as to enable the management to take a decision to challenge the same. This request is opposed by Mr.Singh and Mr.Sawant. In the light of the directions that have been issued to the State Government and the Director, so also, the Tribunal, request for stay need not be granted.

(S.C.Dharmadhikari, J) ::: Downloaded on - 09/06/2013 13:32:17 :::

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