Bombay High Court
Pradeep S/O Krishnarao Marshettiwar vs Head Mistress, Nutan Bharat Vidyalaya, ... on 12 September, 2017
Author: S. C. Gupte
Bench: S. C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 6756 OF 2015
Pradeep S/o Krishnarao Marshettiwar,
Aged about 47 years. Occ.: Nil.
R/o-Plot No.10, Near 3rd Bus Stop,
Gopal Nagar, Nagpur. .....PETITIONER
...V E R S U S...
1] Head-mistress, Nutan Bharat Vidyalaya,
Abhyankar Nagar, Nagpur.
2] Secretary, Bhartiya Vidya Prasarak
Sanstha, Nagpur.
Aged about 57 yrs, R/o Plot No.153,
Old Shraddhanand Peth, Near Paranjpe
School, Bajaj Nagar, Nagpur.
3] Education Officer (Secondary),
Zilla Parishad, Nagpur.
4] Presiding Officer,
School Tribunal, Nagpur. ...... RESPONDENTS.
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Shri V. A. Dhabe, Advocate for the Petitioner.
Shri N. D. Khamborkar, Advocate for the Respondent Nos.1 and 2.
Shri N. R. Patil, AGP for Respondent Nos.3 and 4.
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AND
WRIT PETITION NO. 4637 OF 2015
1] Bhartiya Vidhya Prasarak Sanstha,
Through its Secretary,
Ramesh Balwant Baxi,
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Aged about 57 years,
R/o Plot No.153, Old Sraddhanand
Peth, Bajaj Nagar, Near Paranje School,
Nagpur.
2] The Head Mistress,
Veena Vilas Khotpal,
Aged about 55 years, Nutan Bharat
Vidhyalaya Abhyankar Nagar, Nagpur. .....PETITIONERS
...V E R S U S...
1] Presiding Officer,
School Tribunal, Nagpur.
2] Shri Pradeep Krishnarao Marshettiwar,
Aged about 48 years, R/o-Plot No.10,
3rd Bus Stop, Gopal Nagar, Nagpur.
3] Education Officer (Secondary),
Zilla Parishad, Nagpur. ...... RESPONDENTS.
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Shri N. D. Khamborkar, Advocate for the Petitioners.
Shri V. A. Dhabe, Advocate for the Respondent No.2/Caveator.
Shri N. R. Patil, AGP for Respondent Nos.1 and 3.
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CORAM : S. C. GUPTE, J.
th
DATE : 12
SEPTEMBER, 2017.
ORAL JUDGMENT :
Heard learned counsel for the parties.
02] Rule. Rule made returnable forthwith and taken up for
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hearing with consent of counsel for the parties. 03] These two cross petitions challenge an order passed by the School Tribunal at Nagpur in an appeal challenging termination of a non-teaching staff member. The School Tribunal, by the impugned order, partly allowed the appeal, and quashed and set aside the order of termination passed by the management and directed reinstatement in the same post with continuity in service but without back wages. The employee challenges the rejection of back wages (Writ Petition No.6756 of 2015), whilst the management, in their petition (Writ Petition No.4637 of 2015), challenge the order of reinstatement with continuity in service. (The parties are referred to in this order by their nomenclature in Writ Petition No.6756 of 2015.) 04] The short facts of the case may be stated as follows :
Respondent Nos.1 and 2 are respectively Headmaster and Secretary of the school and trust known, respectively, as 'Nutan Bharat Vidyalaya' and 'Bhartiya Vidya Prasarak Sanstha' which runs the school. On 16th May, 1994, the petitioner was appointed as a peon, which is a Class-IV category post in the respondents' school, ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 00:38:26 ::: wp6756.15 and 4637.15.CJ.odt 4/10 on a vacant post on probation. On 27 th May, 1995, the respondents terminated him from the service on the ground that the Education Officer of the Zilla Parishad had reduced one post of Peon. He was terminated on the principle of 'last come first go'. The termination was challenged by him by filing two complaints of unfair labour practice, respectively, before the Industrial Court and the Labour Court at Nagpur. The complaints came to be dismissed with liberty to approach the School Tribunal. The petitioner, in the premises, filed an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act. By an order dated 14th January, 2009, his appeal was originally allowed by the School Tribunal by setting aside the termination and ordering his reinstatement with continuity of service and 50 per cent back wages. That order was challenged by respondent Nos.1 and 2 before this Court in a writ petition. This Court, by its order dated 11th July, 2014, quashed the order of the School Tribunal and remanded the matter to the School Tribunal for a fresh hearing. In the meantime, the petitioner was reinstated by respondent Nos.1 and 2 on 17th January, 2009, though his back wages were not paid. After this Court quashed the Tribunal order and demanded the appeal, in July 2014, the petitioner was not allowed to work. On ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 00:38:26 ::: wp6756.15 and 4637.15.CJ.odt 5/10 17th June, 2015, the School Tribunal, as noted above, partly allowed the appeal by quashing and setting aside the termination order dated 27th May, 1995 and directing the petitioner's reinstatement with continuity in service but without back wages. 05] The School Tribunal noted in its impugned order that the staff approvals of 1993-1994 and 1995-1996 indicated that whereas the sanctioned posts in the year 1993-1994 of Class-IV staff were Eight, the sanctioned posts in the year 1995-1996 were Seven. Despite noting the reduction in the post as claimed by the respondents, the School Tribunal proceeded to quash the termination order purportedly on the ground that one post of peon had become vacant due to retirement of another peon on 30 th June, 1995. The Tribunal noted that one of the documents produced in the Court (Document No.4 - chit, vide Exh.23) disclosed that on 7 th August, 1996, the Secretary of the trust had given a chit and called for keys of the school office to be sent throught the petitioner. Based on this document, the Tribunal considered the petitioner to be in service with the respondents' school as of 30 th June, 1995 and throughout thereafter till completion of the entire period of probation. The Tribunal also relied on a certificate issued by the ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 00:38:26 ::: wp6756.15 and 4637.15.CJ.odt 6/10 then headmaster of the school on 7th March, 1997 (vide Exh.26) certifying the work of the petitioner of as a peon as unblemished. 06] What emerges clearly from the record of the case is that the petitioner's appointment on 16th May, 1994 was on a vacant post in accordance with the sanctioned strength of Class-IV staff in the school, which was eight. The staff strength of Class-IV employees was reduced by an order of Education Officer dated 18 th April, 1995 from eight to seven. The only reason on which the petitioner was terminated was this reduction. Based on this reduction, the petitioner's services as a probationer were terminated by the school on 27th May, 1995. There is no question, in the premises, of the petitioner having worked with the school after the date of his termination and till one post of peon became vacant on account of retirement on 30th June, 1995. Learned counsel for the petitioner, at the hearing of these petitions, claimed that the impugned order of termination was not received by the petitioner around the time when it was passed. There is no statement to that effect in any of the pleadings of the petitioner. In fact, pleadings of both parties indicate that the petitioner did receive the order of termination issued on 27th May, 1995 and even proceeded to ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 00:38:26 ::: wp6756.15 and 4637.15.CJ.odt 7/10 challenge the same. The whole edifice of the impugned order of the School Tribunal is premised on a finding that the petitioner continued to work with the respondent school upto the time the regular employee working as peon retired on 30 th June, 1995 or even thereafter till completion of the probationary period. Once that premise is found on a shaky and untenable ground, the edifice must fall. The only contemporaneous document, which appears to have weighed with the School Tribunal is the so called chit issued by the Secretary of the trust calling for office keys through the petitioner. This chit is said to be of 7th August, 1996. Apart from the fact that there appears to be an overwriting on this chit changing the year from 1995 to 1996, the chit itself is wholly unsubstantiated and unproved. Mere evidence of such chit is hardly sufficient to indicate that in the face of the termination order issued to him on 27th May, 1995, the petitioner actually continued to work with the respondents till 7th August, 1996 or, for that matter, till 7th August, 1995. The only other document is the certificate issued by the then in-charge headmaster of the school in favour of the petitioner. This certificate has surfaced much later. The termination of the petitioner was on 27th May, 1995 and this certificate was issued on 7th March, 1997. The role of the then in ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 00:38:26 ::: wp6756.15 and 4637.15.CJ.odt 8/10 charge Headmaster of the School, who issued the certificate, appears to be dubious. It is the allegation of the respondents that originally the appeal of the petitioner before the School Tribunal was not served on the management and an order was obtained behind their back by the petitioner in collusion with then in charge Headmaster. It is submitted that the in charge Headmaster placed a submission before the School Tribunal that in 2008 there was a post of peon available as vacant with the School. The Headmaster even allowed the petitioner to resume in the post in January, 2009 without indicating to the management, the filing of the appeal and order of reinstatement passed thereon. On this footing, the original order of reinstatement was set aside by this Court and the matter was remanded to the School Tribunal. The certificate, in the premises, does not inspire any confidence. The petitioner's case based on this certificate that despite his termination of 27th May, 1995, he continued to work with the School, though he was not allowed to sign the muster, is inherently improbable. Besides, there is no authentic record such as salary slip etc. to show that he worked till November, 1996. In these facts, the original termination order issued by the respondents on 27th May, 1995 cannot be said to be illegal or contrary to law.
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07] It is, however, a matter of fact that in pursuance of the
original order of reinstatement passed by the School Tribunal, the petitioner actually worked with the respondents' school between 17th January, 2009 and 11th July, 2014, when the original reinstatement order was quashed and set aside by this Court and the matter was remanded to the School Tribunal for a fresh hearing on merits. It is also a matter of fact that the petitioner actually received salary for this period.
08] On these facts, the petitioner is neither entitled to reinstated or paid back wages for the period after his termination and upto 14th January, 2009 or after 11th July, 2014. Since, in pursuance of the original order of reinstatement passed on 14 th January, 2009, he actually worked between 11 th January, 2009 and 11th July, 2014, he is entitled to receive salary only corresponding to that period.
09] In the premises, Writ Petition No.6756 of 2015 is dismissed and Writ Petition No.4637 of 2015 is allowed by quashing and setting aside the impugned order of reinstatement with continuity in service passed on 17 th June, 2015 and dismissing ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 00:38:26 ::: wp6756.15 and 4637.15.CJ.odt 10/10 Appeal No.20 of 2008 filed by respondent No.2 (the petitioner in companion Writ Petition No.6756 of 2015).
10] No order as to costs.
JUDGE
PBP
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