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2011 DIGILAW 757 (BOM)

Santoshi Mahila Mandal v. Presiding Officer

2011-07-01

R.K.DESHPANDE

body2011
Judgment :- 1] This writ petition is preferred by the employer challenging the judgment and order dated 13th July, 2006, passed in Appeal No. STC/15/94 by the Additional School Tribunal (Nagpur), Chandrapur. The appeal filed by the respondent employee challenging her termination from service as Assistant Teacher w.e.f. 3.12.1993 has been allowed. The termination has been set aside, the management has been directed to reinstate the respondent-employee on the post of Assistant Teacher in its School namely Veer Bhagat Singh School with continuity in service and full backwages. 2] This matter was before this Court in earlier round of litigation in Writ Petition No. 15/2002, decided on 27th August, 2002. After considering the rival submissions made by the parties, this Court framed following points for determination by the School Tribunal, a] Whether the petitioner has worked in the respondent-school. If yes for what period and in what capacity? b] At which point of time the services of the petitioner were terminated and whether the termination of the petitioner is in accordance with law? c] Whether the petitioner has herself abandoned the services. If yes, on what date? In para 9 of the said judgment, it has been observed that the School Tribunal shall take into consideration the fact that the respondent school has already been closed. 3] After remand of the matter, the School Tribunal has decided the said appeal afresh by its judgment and order dated 13th July, 2006. In respect of the Point No. [a] framed above, the answer is that the respondent employee was working in the School since 1.1.1979 to 3.12.1993 as permanent Assistant Teacher. So far as point No. [c] above is concerned, it has been held that the petitioner employer has failed to establish that the respondent employee has abandoned the services. In respect of Point No.[b] above, it has been held that the respondent employee was wrongfully terminated from service w.e.f. 3.12.1993. On the aspect of question of reinstatement, the tribunal has recorded the finding that the English Medium School was closed down from the Academic Sessions 1995-96, however, Hindi Medium School was functioning. It was further held that no permission as required by the provisions of Rules was obtained for closing down the English Medium School and the procedure for that purpose laid down under the Rules has not been followed. It was further held that no permission as required by the provisions of Rules was obtained for closing down the English Medium School and the procedure for that purpose laid down under the Rules has not been followed. It was further observed that even in respect of closure of the school, the procedure as laid down by Rule 25A is required to be followed and the principle of “last come, first go” is also required to be observed. In view of the fact that Hindi Medium School was functioning and the fact that the provisions as aforestated were not complied with, the respondent employee was granted reinstatement and continuity in service. 4] So far as the question of backwages is concerned, the tribunal has recorded the finding that there is nothing on record to show that the respondent employee after her termination from service was doing some job. Hence, denial of backwages will cause undue hardship to the respondent employee. 5] The finding of the School Tribunal that the respondent employee was working in the school since 1.1.1979 to 3.12.1993 as permanent Assistant Teacher is based upon certificate dated 4.4.1988 issued by the President of the Society, which is countersigned by the Education Officer and the another certificate dated 3.12.1993 issued by the Vice President of the Society. It has been held that on both these dates the concerned office bearers were holding the office. The certificates indicated that the respondent employee was in service from the year 1979 till 1993. The reliance was also placed upon the seniority list of the staff working in the school, prepared for the Sessions 1992-93, which was signed by the incharge Headmistress, showing the name of the respondent at Sr.No.1. Thus, the finding is based upon the relevant evidence available on record. Sufficiency or insufficiency of the evidence in support of the finding cannot be the subject matter of judicial scrutiny under Article 226 and 227 of the Constitution of India. Hence, no fault can be found with such finding recorded by the School Tribunal. Thus, the finding is based upon the relevant evidence available on record. Sufficiency or insufficiency of the evidence in support of the finding cannot be the subject matter of judicial scrutiny under Article 226 and 227 of the Constitution of India. Hence, no fault can be found with such finding recorded by the School Tribunal. 6] Shri Chandurkar, with Shri Khajanchi, the learned counsels appearing for the petitioner have urged that the certificate dated 3.12.1993 shows that the petitioner was working as Headmistress from 1.4.1979 to 1.9.1993, whereas the case of the respondent employee herself is that from 1.1.1979 to 1.7.1980, she was working as an Assistant Teacher and thereafter she was promoted as Headmistress, where she was working till 1993. In respect of certificate dated 4.4.1988, it is urged that the said certificate indicate that the respondent employee is working from 1979 to 1988 as Teacher in English and Hindi Primary School at Chandrapur. It is, therefore, urged that there is inconsistency in between the certificates produced on record and also the stand of the respondent-employee. The same, therefore, could not have been relied upon for recording the findings. The reliance is also placed upon the affidavit dated 16th January, 2003 filed by one Smt. Vatsala Dattatray Dhotarkar, Ex-Vice President of the Society, whose signature is alleged to be on the certificate dated 3.12.1993. Inviting my attention to para 3 of the said affidavit, it is urged that such certificate was not issued and it was a bogus and forged document. In view of this, the submission is that, the School Tribunal could not have relied upon such certificate. 7] It is not possible to accept the aforesaid contention urged by the learned counsel appearing for the petitioner. The question is whether the respondent employee was in service from 1.9.1979 to 3.12.1993 as an Assistant Teacher. Whether she was working as Assistant Teacher or as incharge Headmistress is altogether different question. It is significant to note that in para 2 of the affidavit of Smt. Vatsala Dhotarkar, it has been clearly mentioned that the respondent employee has abandoned the service as she had stopped coming to the school from 3rd December, 1993. It is thus apparent that the fact that the respondent employee was working in the school from 1979 to 3rd December, 1993 is impliedly accepted. It is thus apparent that the fact that the respondent employee was working in the school from 1979 to 3rd December, 1993 is impliedly accepted. It was not the case of the petitioner before the tribunal that the respondent employee has been removed from service on the ground of any misconduct or on the ground that she has forged and fabricated the documents. Hence, the stand taken in the affidavit of Smt. Vatsalabai Dhotarkar appears to be clearly an after thought. At any rate, the view taken by the tribunal is based upon the material available on record and is a possible view in the facts and circumstances of the case. Hence, it does not call for interference. 8] It is also the contention of the learned counsel appearing for the petitioner that the tribunal ought to have framed an issue as to whether the respondent employee has established that her appointment was in accordance with Section 5 of the Rules framed under the M.E.P.S. Act. It is urged that in the light of the decision of the Division Bench of this Court reported in 2007 (6) Mh.L.J. 667 ; Priyadarshini Education Trust and others vrs. Ratis (Rafia) Bano Abdul Rasheed and others and 2008(4) Mh.L.J. 159 ; President, Late Shri Ramchandra Patil Shikshan Sanstha and ors vrs. Haiderali Mahmadhanif Inamdar and another, such issue is required to be framed irrespective of the pleadings of the parties. According to the petitioners, the appointment of the respondent/employee itself was not in accordance with Section 5 of the Rules. The appointment of the respondent employee was purely temporary, on year to year basis and she had, therefore, no right of continuation on the post. 9] Such argument cannot be accepted for the reason that in the earlier round of litigation, this Court has specifically framed the points for determination, which the tribunal was bound to answer. This court after hearing the parties, crystallized the controversy into the points for determination. At that time no such question was raised as to whether the appointment of the employee was in accordance with Section 5 of the Rules framed thereunder. Hence, there was no direction from this court to the Tribunal to decide any such question. Even before the tribunal, it does not seem that any such point was raised. At that time no such question was raised as to whether the appointment of the employee was in accordance with Section 5 of the Rules framed thereunder. Hence, there was no direction from this court to the Tribunal to decide any such question. Even before the tribunal, it does not seem that any such point was raised. In view of this, the tribunal was not expected to decide any such point irrespective of the pleadings of the parties. This is the view taken by this Court which is reported in 2011 (4) Mh.L.J. 312 ; Manohar vrs. P.O. School Tribunal. 10] The burden to establish whether the respondent employee has abandoned the services is certainly upon the petitioner employer. Once it is held that the respondent employee was working as permanent Assistant Teacher, it is for the petitioner management to point out as to what steps it had taken, if the respondent employee had abandoned the services. Though there is some reference that the respondent employee has abandoned the services w.e.f. 18.10.1993, there was not even a single communication issued to the Respondent-employee till filing of an appeal on 12.1.1994, alleging that she was absent from duty. At any rate, if any such communication was issued, the same was not placed on record of the tribunal. The reference was made to two letters dated 31.1.1994 and 14.2.1994 by which the respondent employee was asked to join the duties. Both these communications were issued subsequent to filing of an appeal by the respondent employee. The issuance of the two communications is nothing but an after thought to built up a case of abandonment of service. The tribunal has taken into consideration both these communications in paras 14 and 16 of the judgment and it has been held that the respondent employee was never allowed to join the duties after 2.12.1993. Hence, no fault can be found with the decision of the tribunal on point No. [c]. 11] On the question of legality of the termination, it has been held that it was a case of refusal to permit the respondent employee to sign the muster roll, which was a case of oral termination from service. The services of permanent employee can not be terminated except in accordance with the provisions under M.E.P.S. Rules. Undisputedly, termination is not in accordance with M.E.P.S. Rules. The same is held to be invalid. The services of permanent employee can not be terminated except in accordance with the provisions under M.E.P.S. Rules. Undisputedly, termination is not in accordance with M.E.P.S. Rules. The same is held to be invalid. No fault can be found with such finding. 12] On the question of closure of the school, finding is recorded that Hindi Medium School was still functioning and closure of the English Medium School was not by following the appropriate procedure. The certificate dated 4.4.1988 produced on record shows that the respondent employee was working as teacher to teach English and Hindi Primary School from 1979 to 1988. If the petitioner employer wanted to terminate the services of the respondent employee on the ground that the English Medium School was closed down and hence no work was available for continuation of the respondent employee in service, then it was open for the petitioner management to pass such an order in accordance with the provisions of M.E.P.S. Act and Rules. Undisputedly, this has not been done in the present case. If the permanent employee is retrenched from service on account of closure of the school then he is entitled to certain benefits under the Rules. In such situation he is also entitled to get the regular salary till his absorption in some other school. The tribunal has taken into consideration the aspect of closure of the school and has directed the reinstatement and continuation in service. 13] Keeping in view all these aforesaid aspects, no fault can be found with the view taken by the tribunal while setting aside the termination, directing the reinstatement and continuation in service. 14] So far as question of backwages is concerned, the aspect has been dealt with in the judgment of the School Tribunal. However, it has been held that the management has not brought any evidence on record to show that during the period after termination, the respondent employee doing some job. The burden is shifted upon the management. In view of the decisions of this Court reported in 2009 (2) Mh.L.J 182 ; Principal, Daund Taluka Arts and Commerce College vrs. Macchindra Sahebrao Bhavar and another,and the decision of the Apex Court reported in (2005) 2 SCC 363 ; Kendriya Vidyalaya Sangathan and another vrs. S.C. Sharma, the initial burden lies upon the employee. In view of the decisions of this Court reported in 2009 (2) Mh.L.J 182 ; Principal, Daund Taluka Arts and Commerce College vrs. Macchindra Sahebrao Bhavar and another,and the decision of the Apex Court reported in (2005) 2 SCC 363 ; Kendriya Vidyalaya Sangathan and another vrs. S.C. Sharma, the initial burden lies upon the employee. In view of this, the order of payment of backwages passed by the tribunal cannot be sustained and the matter will have to be sent back to the tribunal to decide the question of backwages afresh. 15] In the result, the petition is partly allowed. The judgment and order passed by the School Tribunal on 13th July, 2006, in Appeal No. STC./15/94 is hereby quashed and set aside only to the extent it awards full backwages to the respondent employee upon his reinstatement in service. Hence, Clauses (4) and (5) of the said order are hereby quashed and set aside. The matter is remitted back to the School tribunal for enquiry into the question of payment of backwages in accordance with law. The tribunal shall decide the matter within a period of three months from the date of receipt of the writ from this Court. It is made clear that the tribunal shall not reopen the other issues decided by this Court. Rule is made absolute in these terms, no orders as to costs. 16] The learned counsel for the parties have informed that in view of the order passed by this Court, the petitioner has deposited an amount of Rs.1,50,000/in this court on 28/06/2007. The amount is kept in fixed deposit. In view of the aforesaid decision, the office is directed to transfer this amount to the School Tribunal along with interest accrued thereon. The School Tribunal shall pass appropriate orders in respect of the said amount in accordance with its ultimate decision. 17] None of the observations made in this judgment shall come in the way of the petitioner to take appropriate action in the matter in accordance with the provisions of M.E.P.S. Act and the Rules, if it is permissible.