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2008 DIGILAW 1409 (BOM)

Hiral A. Baxi v. Borivli Education Society

2008-09-29

A.A.KUMBHAKONI, F.I.REBELLO

body2008
JUDGMENT:- The petitioner was employed as a Clerk with Respondent No.2 Institution which is being run by Respondent No.1 Respondent No.2 Institution is aided by Respondent No.3 and covered by the provisions of the Grant-in-Aid Code for Approved Private Primary Schools in greater Mumbai. The petitioner's services were approved by communication dated 8th August, 2000 addressed by the Superintendent, Private Primary School of Respondent No.4 addressed to the Head Teacher of Respondent No.2 Institution. 2. The services of the petitioner came to be terminated on the resolution being passed by the managing committee of respondent No.1. Letter of termination was issued on 11th September, 2006 whereby the petitioner was paid six months salary. The petitioner thereafter, it appears, represented amongst others, to respondent No.4. Respondent No.4 by communication of 19th September, 2006 informed to Secretary of respondent No.1 that considering the provisions of Clause 17 of Grant-in-Aid Appendix VII as amended by obtaining the sanction of the then Deputy Municipal Commissioner (P) by his order under No.MDG/605 of 30th September, 1981, the termination of the petitioner is bad and, therefore, direction was issued to the management to reinstate the petitioner. As the management refused to reinstate the petitioner the present petition. 3. At the hearing of this petition on behalf of the petitioner learned Counsel submits that the order of termination is preceded by show cause notice issued to the petitioner by the management. It is submitted that the show cause notice communicated that the termination is by way of punishment. The letter would amount to a stigma on the petitioner and in these circumstances the services of the petitioner could not have been terminated without conducting an enquiry. In the instant case as this has not been done and considering the direction of Respondent No.1 the respondents are bound to comply with the said order. 4. On the other hand on behalf of the respondent Nos.1 and 2 learned Counsel submits that the termination is strictly in terms of Rule 13 of Appendix VII of the Grant-in-Aid Code. In the instant case as this has not been done and considering the direction of Respondent No.1 the respondents are bound to comply with the said order. 4. On the other hand on behalf of the respondent Nos.1 and 2 learned Counsel submits that the termination is strictly in terms of Rule 13 of Appendix VII of the Grant-in-Aid Code. The said Rule reads as under : "The services of a permanent teacher may be terminated by the management without assigning any reasons on giving 12 months' salary (i.e. pay and allowances, if any) to the teacher if he has been, in the service of the school for ten years or more and 6 months' salary (Pay and allowances, if any) if he has been in the service of the school for less than ten years. The management shall immediately inform the Department of the action regarding the discharge of and payment made to such a teacher." It is submitted that the order of termination or the resolution do not cast any stigma and the case is of simple termination by following the procedure laid down in the Grant-in-Aid Code. 5. In so far as Respondent Nos.3 and 4 are concerned, the learned Counsel submits that the communication dated 19th September, 2006 wherein reference to Clause 17 ought to be Clause 13. 6. The question is whether this Court should grant relief as prayed for by the petitioner. Admittedly, the respondent Nos.1 and 2 have not challenged the communication of 19th September, 2006. Even if that not be so, this Court while issuing mandamus will have to consider whether there is a legal right in the petitioner to claim such a relief. 7. The Grant-in-Aid Code has been framed by the Municipal Corporation of Greater Mumbai in exercise of the powers conferred under Section 62-C(3) of the Bombay Municipal Corporation Act and Pursuant to Resolution No.939, dated the 15th October, 1959 and the same was sanctioned by the Government of Maharashtra. Any amendment to the Rules contained therein can be effected by following the same procedure. The Authority of the Corporation could not, in the absence of the general body of the Corporation passing resolution, amend the provisions of Grant-in Aid Code. We have to consider the Grant-in Aid Code as it stands. Rule 13, therefore, will have to be considered as if unamended. 8. The Authority of the Corporation could not, in the absence of the general body of the Corporation passing resolution, amend the provisions of Grant-in Aid Code. We have to consider the Grant-in Aid Code as it stands. Rule 13, therefore, will have to be considered as if unamended. 8. There is no challenge to Rule 13 before us. The Appendix VII provides for termination under Rule 13 without assigning any reasons and Rule 18 provides for termination after enquiry. The management, therefore, has a choice either to resort to Rule 18 or Rule 13. 9. In the instant case they have resorted to Rule 13. We have also considered the notice of termination dated 11th September, 2006. The said notice does not contain any stigma. In our opinion, therefore, once there was a power in the respondent Nos.1 and 2 and they having exercised that power, that exercise is not contrary to Rule 13. 10. We do not think this is a fit case for us to exercise our extraordinary jurisdiction. In the light of that petition dismissed. Petition dismissed.