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2004 DIGILAW 185 (BOM)

Maharana Pratap Education Society, Dehani v. Rekha Vijay Latkar & others

2004-02-11

S.T.KHARCHE

body2004
JUDGMENT - KHARCHE S.T., J.:­­ - Rule. Rule made returnable forthwith. Matter taken up for final hearing with the consent of the parties. 2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 14-1-2003 passed by the School Tribunal dismissing the second appeal preferred by the deceased respondent No. 1 for want of jurisdiction. 3. Relevant facts are as under: One Vijaykumar Namdeorao Latkar was employed as a clerk in Shri Babanaji Maharaj Vidyalaya, Dehani, which is under the control of the petitioner with effect from 1-4-1969. A charge-sheet to the said employee was issued on 7-4-1980 on the contentions that he was involved in the act of misconduct, moral turpitude and was also facing criminal case under the provisions of the Bombay Prevention of Gambling Act. He had also filed a private criminal complaint against the petitioner under section 500 of Indian Penal Code and that private criminal complaint ended into acquittal of the President of the management. An Enquiry Committee was constituted under the provisions of the Secondary School Code and the said employee/delinquent was terminated with effect from 10-5-1980. The delinquent employee challenged his termination before respondent No. 2/Deputy Director of Education by filling first appeal which came to be allowed on 17-5-1980. Being aggrieved by the order passed by the Deputy Director of Education, the management had filed an appeal before the Director of Education/respondent No. 3 on 27-1-1981 as per Clause 77(10) of the Secondary School Code. The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short M.E.P.S. Act) came into force on 15-7-1981 and, therefore, the Director of Education transferred the second appeal to the School Tribunal. The delinquent employee died on 16-2-2002 during the pendency of the appeal and respondent No. 1 is his widow. 4. The School Tribunal by the order dated 14-1-2003 passed an order in Appeal No. 10/1990-A and dismissed the appeal on the sole ground that by virtue of section 9 of the M.E.P.S. Act it has no jurisdiction to decide the said second appeal and directed the petitioner/management to proceed before the competent forum. This order is under challenge in this petition. 5. This order is under challenge in this petition. 5. The learned Counsel for the petitioner contended that the School Tribunal has passed a cryptic order on 14-1-2003 without taking into consideration the provisions of the M.E.P.S. Act and, as such, the order is not sustainable in law and the matter may be remanded to the School Tribunal for fresh decision on merits in accordance with law. 6. The learned Counsel for respondent No. 1 contended that he has no objection if the matter is remanded to the School Tribunal for fresh decision in accordance with the provisions of M.E.P.S. Act. He pointed out that as per section 15 of the M.S.E.B. Act all the appeals pending with the Department or the Director or an Officer subordinate to him, were to be transferred to the School Tribunal for adjudication. He contended that the Tribunal has committed an error in relying on section 9 by which the right to prefer appeal before the School Tribunal has been granted to the employees of the private schools. He contended that probably the School Tribunal considered the proviso to section 9 for coming to the conclusion that it had no jurisdiction to decide the second appeal. He contended that the explanation appended to section 15 of the M.E.P.S. Act makes it clear that for the purpose of this section, appeals of the employees or, as the case may be, of the Management relating to the matters specified in Clause (a) of sub-section (1) of section 9; would be covered while transferring the pending appeals to the Tribunal. In support of these submissions, he relied on the Division Bench decision of this Court in (Jagruti Education Society v. Presiding Officer, School Tribunal)1, 1990(Supp.) Bom.C.R. (N.B.)268. 7. The learned A.G.P. contended that by virtue of the proviso to section 9, no such appeal lie to the School Tribunal especially when the second appeal was to be decided by the Director of Education. He contended that the second appeal pending before the Director of Education was filed by the management and not by the employee and, as such, it could not have been transferred to the School Tribunal. In support of these submissions he relied on the Divisions Bench decision of this Court in (Yeshwant Prasad Popular Education Society v. Shashikala D. Vaidya)2, 1983 Mh.L.J. 961. In support of these submissions he relied on the Divisions Bench decision of this Court in (Yeshwant Prasad Popular Education Society v. Shashikala D. Vaidya)2, 1983 Mh.L.J. 961. In such circumstances, he supports the view taken by the School Tribunal that it has no jurisdiction to decide the second appeal by virtue of the provisions of section 9 of the M.E.P.S. Act. 8. I have given thoughtful consideration to the contention canvassed by the learned Counsel for the parties. It is necessary to reproduce section 9 which contemplates that "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 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, remove otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st July, 1976". 9. However, section 15 reads as under : "All appeals of employees (or, as the case may be, of the Management] of private schools relating to the matters specified in section 9, which may be pending before the Department or the Director or an Officer subordinate to him, as the case may be, in accordance with the provisions of the Secondary School Code shall be transferred to the Tribunal. The Tribunal shall hear and dispose of every such appeal, as if it were made under section 9, provided that the prescribed fee of Rs. 50 is paid by the employee (or the Management, as the case may be,) within one month of the receipt of a notice given to him by the Tribunal for that purpose. The Tribunal shall hear and dispose of every such appeal, as if it were made under section 9, provided that the prescribed fee of Rs. 50 is paid by the employee (or the Management, as the case may be,) within one month of the receipt of a notice given to him by the Tribunal for that purpose. Provided that any such appeal decided by the Department, or the Director or an Officer subordinate to him, during the period commencing on the date of coming into force of this Act and ending on the date of commencement of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation (Amendment) Act, 1987, in accordance with the directions of the High Court of Bombay, shall be deemed to have been validly decided, as if the Department or the Director or the Officer subordinate to him had, notwithstanding anything contained in this Act, the jurisdiction to decide the same.) (Explanation.---For the purpose of this section,-- (a) appeals of the employees or, as the case may be, of the Management relating to the matters specified in Clause (a) of sub-section (1) of section 9; and (b) appeals of employees or, as the case may be, of the Management relating to the matters specified in the Clause (d) of sub-section (1) of section 9. means, respectively, the appeals pending on the appointed date and on the date of commencement of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation (Amendment) Act, 1987, before the Department or the Director or an officer subordinate to him, as the case may be.)" 10. It is not in dispute that the employee, i.e. the husband of respondent No. 1, was terminated from service on 10-5-1980 and being aggrieved by the termination order he preferred an appeal before the Deputy Director of Education on 17-5-1980 which came to be allowed. Thereafter, the petitioner/management filed second appeal before the Director of Education on 27-1-1981 after coming into force of the M.E.P.S. Act. The same was transferred to the School Tribunal on 22-6-1988. The M.E.P.S. Act came into force on 15-7-1981. Sub-section (3) of section 1 thereof contemplates that it shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint. Sub-section (1) of section 2 contemplates that "appointed date" means the date on which this Act comes into force. The M.E.P.S. Act came into force on 15-7-1981. Sub-section (3) of section 1 thereof contemplates that it shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint. Sub-section (1) of section 2 contemplates that "appointed date" means the date on which this Act comes into force. There is no dispute that the M.E.P.S. Act came into force on 15-7-1981 vide Govt. Notification No. G.N., E. and E.D., No. STR, 1981/SE-3, Cell, dated 10th July 1981. 11. In Jagruti Education Society, 1991 Mh.L.J. 493, (cited supra), the Division Bench of this Court dealt with the question of jurisdiction of the School Tribunal in case of dispute falling within the scheme of section 9 and held that the education authorities who had jurisdiction prior to coming into force of the Act will cases to have the same. The Court specifically observed in para 18 that section 15 is only a transitional provision. It is purely of a procedural nature. This provision was required to be brought on the statute book because of some circumstances prevailing. The Regulation Act, 1977, came into existence immediately thereafter. Before that the Tribunal was not in existence. There were so many appeals arising out of the School Code and the other provisions including the Bombay Primary Education Act, which were pending before the Competent Authorities. This provision came to be enacted only for enabling the education authorities to transfer the matters pending before them to the Tribunal. While interpreting section 15, the provisions of section 9 cannot be overlooked. To repeat it once again, section 9 creates a forum for deciding the cases filed by the employees. The jurisdiction of the forum was restricted inasmuch as it was restricted to the appeals filed by the employees in the private schools who were dismissed, or removed or whose services are otherwise terminated or who are reduced in rank by the order passed by the management or who are superseded by the management while making any appointment by promotion. Thus a specific forum came to be created for redressing the grievance of the employees. Before this forum came into existence, there were many other matters in which the similar grievance were sought to be vindicated, but the forum then available was the Education Officers of different categories. Thus a specific forum came to be created for redressing the grievance of the employees. Before this forum came into existence, there were many other matters in which the similar grievance were sought to be vindicated, but the forum then available was the Education Officers of different categories. Section 15 of the Act, therefore, issues a legislative mandate that all appeals of employees of private schools relating to the matters specified in section 9 shall be transferred to the Tribunal. By necessary implication it curtails the jurisdiction of the Education Authorities, who were otherwise, before the coming into force of this Act, competent to decide these matters. This Court went on further observing that there is a qualifying clause in section 15 itself which qualifies the pending appeals. One of the qualifications is that these appeals must be relating to the matters specified in section 9 and the second qualification is that this must be in accordance with the provisions of the Secondary School Code. As far as the first qualification is concerned, the present case does satisfy that qualification so that the matter has to be transferred to the School Tribunal. As far as the second qualification is concerned, the appeal preferred by the respondent No. 3 was not in accordance with the School Code. This is an admitted position. The point which arises for decision in this case is whether the Education Authorities who had already taken the seisin of this matter, could decide these cases or could transfer these cases. As far as the appeals in accordance with the provisions of Secondary School Code were concerned, they were necessarily to be transferred because of the legislative mandate. There was no such mandate if the appeals were not in accordance with the Secondary School Code. Consequently, the Division Bench took the view that once the Tribunals were brought into existence, the jurisdiction of the Education Officer was ousted by necessary implication and thus whatever the Education Officer decided was without jurisdiction". 12. The issue involved in the present petition is squarely covered by the aforesaid decision of the Division Bench which is binding on this Court. 12. The issue involved in the present petition is squarely covered by the aforesaid decision of the Division Bench which is binding on this Court. It is undisputed position that the second appeal was preferred to the Director of Education as per Clause 77(10) of the Secondary School Code and it was pending before him on the date when the M.E.P.S. Act had come into force on 15-7-1981. In such circumstances, the second appeal was rightly transferred to the School Tribunal for decision in accordance with the provisions of the M.E.P.S. Act and by no stretch of imagination it could be said that the School Tribunal had no jurisdiction to decide the second appeal by virtue of section 9 of the M.E.P.S. Act. 13. The contention of the learned A.G.P. that the Director of Education had jurisdiction to decide the second appeal in view of the proviso to section 9 of the M.E.P.S. Act is devoid of any merit. The Division Bench decision of this Court in Yeshwant Prasads case, 1983 Mh.L.J. 961, cited supra, relied on by him has no bearing on the facts and circumstances of the present case. In that case, the Joint Director allowed the appeal and findings of the Enquiry Committee and the decision of the management terminating the services of the teacher were upheld. Thereafter, appeal was filed by the teacher before the Government which was rejected as it came to the conclusion that as per the provisions of the Secondary Schools Code the decision of the Director was final and binding on both the parties and no further appeal lay to the Government. Thereafter the teacher filed an appeal under section 9 of the M.E.P.S. Act on 7th April, 1982. The society raised the preliminary objection that in view of the provisions of the Regulation Act, the appeal itself was not maintainable. The Tribunal, however, by order dated 7th of July, 1983 held that the appeal was maintainable. The said order of the School Tribunal was challenged in writ petition. It was held that the School Tribunal had no authority or jurisdiction to sit on appeal over the order passed by the Joint Director in appeal which became final and binding on both the parties. Such is not the present case. The said order of the School Tribunal was challenged in writ petition. It was held that the School Tribunal had no authority or jurisdiction to sit on appeal over the order passed by the Joint Director in appeal which became final and binding on both the parties. Such is not the present case. In the present case, there is no final decision in the second appeal by the Director of Education or by the Government and hence this Court is of the considered view that the proviso to section 9 of the M.E.P.S. Act would have no application and on the contrary in view of the specific proviso to section 15, the second appeal has been rightly transferred to the School Tribunal and the School Tribunal has jurisdiction to decide the appeal on merits. In that view of the matter, the School Tribunal has clearly committed an error in disposing of the matter by passing a cryptic order of eight lines only mentioning that by virtue of section 9 of the M.E.P.S. Act, the Tribunal has no jurisdiction to decide the second appeal and directed the appellant to proceed before the competent forum ignoring the provisions of section 15. 14. The Clauses (a) and (b) to the Explanation to section 15 is to be construed in proper perspective. It would mean that all kinds of pending appeal whether preferred by the management or employee would be liable to be transferred to the School Tribunal for decision in accordance with law on fulfilment of two conditions (1) the appeals must be related to the matters specified under section 9, and (ii) this must be in accordance with the provisions of Secondary School Code. Both these conditions are fulfilled in the present case and, therefore, the matter has to be transferred to the School Tribunal as per the mandate of section 15 and thus it is obvious that the order passed by the School Tribunal is neither legal nor proper and it deserves to be quashed. Therefore, the impugned order is set aside and the matter is remitted to the School Tribunal for fresh decision on merits in accordance with law expeditiously, as far as possible within a period of eight weeks from the date of receipt of the copy of this order. The writ petition is allowed with no order as to costs. Rule is made absolute in aforesaid terms. The writ petition is allowed with no order as to costs. Rule is made absolute in aforesaid terms. Petition allowed. -----