Bombay High Court
Happy Hours Education Society, Nagpur ... vs The Presiding Officer, School ... on 8 January, 2019
Author: Z.A. Haq
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2029/2017
1. Happy Hours Education Society
a public Trust registered under the
Bombay Public Trusts Act, 1950,
and a Society registered under the
Societies Registration Act, 1860,
having its office at 236, L.J. Road,
Tent Lines, Mohannagar, Nagpur,
through its President Mrs. Seema
W/o Rajendra Daga, R/o Tikekar Road,
Dhantoli, Nagpur.
2. Orange City (Primary) School,
Mohan Nagar, Nagpur, through its
Headmistress Mrs. Sharda H. Katariya,
R/o C/o Shri N.R. Shindilwar, near
Railway Crossing, Mangalwari Bazar,
Sadar, Nagpur. ..Petitioners.
..Vs..
1. The Presiding Officer,
School Tribunal, Nagpur.
2. Mrs. Kalpana W/o Narottam Lambghare,
aged about 46 Yrs., Occu. Service,
R/o 303, Fifth Floor, Sarvodaya Palace,
Abhyankar Road, Dhantoli,
Nagpur 440 012.
3. Education Officer (Primary),
Zilla Parishad, Nagpur. ..Respondents.
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Shri M.P. Khajanchi, Advocate for the petitioners.
Shri V.P. Maldhure, A.G.P. for respondent No.1.
Shri N.C. Phadnis, Advocate for respondent No2.
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CORAM : Z.A. HAQ, J.
DATE : 8.1.2019.
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ORAL JUDGMENT
1. Heard.
2. RULE. Rule made returnable forthwith.
3. The respondent No.2 / employee had filed appeal before the School Tribunal with following prayers:
"A) By passing a suitable order it be held and declared that the action on the part of respondent Nos.1 and 2 restraining the appellant from discharging her duties and responsibilities and entering into the school premises is contrary to the provisions of MEPS Act and Rules.
B) By passing further orders and direction the respondent Management be directed to permit the appellant to discharge her duties as a Assistant Teacher and to pay her salary per month regularly as per government pay scale since May, 2002 till date.
C) Further the respondent management be directed to comply with the provisions of Rule 11, 12 and 20 of the MEPS Rules, so far as it relates to deduction of provident fund, maintenance of seniority list, etc. and also by opening a service book of the appellant.
D) Direct the respondent No.3 Education Officer (Primary), Zilla Parishad, Nagpur to initiate action against the respondent Management for non compliance of statutory provisions of the Act and Rules.
E) Grant any other relief, which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case, in the interest of justice."
4. Though the petitioners / management was served and Advocate had put in appearance for it before the Tribunal, it had not filed its reply and had ::: Uploaded on - 19/01/2019 ::: Downloaded on - 25/03/2020 14:30:04 ::: 3 wp2029.17 not participated in the further proceedings before the School Tribunal. The Tribunal proceeded ex parte and allowed the appeal by the impugned order.
5. The submission on behalf of the petitioners is that the material placed on record of the Tribunal by the employee was not sufficient to grant reliefs as done by the Tribunal. At the time of hearing, learned Advocate for the petitioners has pointed out that the Tribunal has recorded that otherwise termination order dated 21.6.2012 is quashed, however, in the memorandum of appeal which was filed by the respondent No.2 / employee there is no averment about such order of oral termination. It is further submitted that the employee had not produced any document before the School Tribunal to show that she was appointed after following the procedure prescribed by Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977.
6. The contention on behalf of the respondent No.2 / employee is that she was not paid salary and, therefore, she had approached this Court vide Writ Petition No.2016/2006, and after the notice of writ petition was served on the management, she was prohibited from discharging her duties and this amounted to "otherwise termination" and, therefore, the respondent No.2 / employee was constrained to approach the Tribunal. ::: Uploaded on - 19/01/2019 ::: Downloaded on - 25/03/2020 14:30:04 :::
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7. Be that as it may, I find substance in the submissions made on behalf of the petitioners / management. Though the employee may be able to demonstrate from the material on record the date of alleged "otherwise termination", no specific averment to that effect is found in the memorandum of appeal. The memorandum of appeal also does not contain any averment regarding the procedure which was followed by the management at the time of her appointment.
8. Considering the facts of the case, in my view, an opportunity is required to be granted to the management to put-forth its case. Similarly, the employee can also be permitted to amend the memorandum of appeal and file additional documents on record, if so advised. In my view, the following order would sub-serve the ends of justice:
(i) The impugned order is set aside. (ii) The matter is remitted to the School Tribunal, Nagpur for deciding the appeal afresh. (iii) The petitioners and the respondent No.2 / employee shall appear
before the School Tribunal, Nagpur on 13th February, 2019 at 11:00 a.m.
(iv) The Education Officer (Primary) shall also ensure that reply is filed on its behalf before the School Tribunal.
(v) The respondent No.2 / employee is granted liberty to amend the memorandum of appeal and file additional documents on record, if so advised. ::: Uploaded on - 19/01/2019 ::: Downloaded on - 25/03/2020 14:30:04 :::
5 wp2029.17 The management is also permitted to file its reply and documents on record, if so advised.
(vi) The Tribunal shall dispose the appeal till 30th March, 2019.
(vii) Rule is made absolute in the above terms.
(viii) In the circumstances, the petitioner No.1 / management shall pay Rs.20,000/- (Rs. Twenty Thousand) to the respondent No.2 / employee by demand draft and produce receipt of it on record of the School Tribunal on the date of appearance. If the management fails to pay the amount of costs, its reply shall not be taken on record and the Tribunal shall proceed to decide the appeal ex parte.
JUDGE Tambaskar.
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