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2013 DIGILAW 391 (RAJ)

Bela Middle School v. Hemlata

2013-02-14

AMITAVA ROY, NISHA GUPTA

body2013
JUDGMENT 1. - Heard Mr. J.K. Yadav, learned counsel for the appellant and Mr. Yogesh Shastri, learned counsel for the respondents. 2. The pleaded facts reveal that the respondent No.1 approached the Rajasthan Non-Government Educational Tribunal (for short hereinafter referred to as "the Tribunal") u/s 19 of the Rajasthan Non- Government Educational Institutions Act, 1989 (for short hereinafter referred to as "the Act") alleging that her name had been struck off from the register of the employees of the appellant school i.e. Bela Middle School which was in violation of the prescription of 39 of the Act. She had served the school from October 1987 to July, 1993 when her services were terminated as such. The appellant school resisted the appeal before the learned Tribunal on the ground that firstly the respondent No.1 was not in its rolls and thus was not its employee and secondly, no action having been taken against her u/s 18 of the Act no appeal was maintainable u/s 19 thereof.The learned Tribunal rejected both these contentions and interfered with the action of removal/termination of the respondent No.1. The learned Single Judge sustained the decision of the learned Tribunal being of the view that striking out the name of the respondent No.1 in the register of the appellant school did tantamount to her removal from service. 3. Mr. Yadav has argued that though the respondent No.1 had, in fact, rendered services as Sevika under the school, she by no means at any point of time could be construed to be an employee under the Act and thus though she was discontinued in the month of May, 1994, there was neither any cause of action for preferring any appeal before the learned Tribunal nor for seeking the relief of her reinstatement in service with all consequential benefits. The learned counsel apprised this court that the appellant school has since been closed under the orders of the Government in the month of May 1997 and as such in any view of the matter, it cannot be held liable for any relief grantable to the respondent No.1 beyond that point of time. 4. In reply, Mr. The learned counsel apprised this court that the appellant school has since been closed under the orders of the Government in the month of May 1997 and as such in any view of the matter, it cannot be held liable for any relief grantable to the respondent No.1 beyond that point of time. 4. In reply, Mr. Shastri has urged that having regard to the services rendered by the respondent No.1, she is an employee within the meaning of section 2(i)(j) of the Act and that her removal in the case being u/s 18 of the Act an appeal before the learned Tribunal is contemplated u/s 19 of the Act. According to him, the appellant school has not been closed but only the name thereof has been changed to Hillview school and that the same is functioning as on date. 5. Upon hearing the learned counsel for the parties and on a consideration of the materials on record, having regard to the scope and ambit of the expression "employee" as defined in section 2 of the Act we have no doubt that the respondent No.1 had at all relevant times been the employee of the appellant school. There is no serious dispute that the appellant has served the school from October, 1987 to July, 1993. It is submitted on behalf of the appellant that respondent No.1 was paid upto December, 1996. 6. Be that as it may, on a perusal of the language contained in section 18 of the Act, we are of the view that the discontinuance of the respondent No.1 in the facts and circumstances amounted to her removal from service of the appellant school. In that view of the matter, her appeal before the Tribunal was maintainable in law. 7. Having regard to the reasons recorded by the learned Single Judge in the judgment and order impugned before us, we see no cogent and compelling reason to differ. There is no material on record to suggest that the respondent No.1's removal from service had been in accordance with the procedure prescribed by rule 39 of the Rajasthan Non-Government Institutions Rules, 1993 (for short hereinafter referred to as "the Rules"). There is thus no manner of doubt that such action is non-est in law and that she is entitled to a declaration of continuity in service with all consequential service benefits. 8. We order accordingly. 9. There is thus no manner of doubt that such action is non-est in law and that she is entitled to a declaration of continuity in service with all consequential service benefits. 8. We order accordingly. 9. On the aspect of the controversy as to whether the school has been closed under the orders of the State Government or is functioning on date with a different name i.e. Hillview school, we consider it appropriate, to direct the Secretary to the Education Department, Government of Rajasthan to make an inquiry in this regard and record a finding on this aspect after affording due opportunity of hearing to the parties. If on such verification, it transpires that Bela Middle School is on date functioning as Hillview school, the respondent No.1 would be reinstated in service in the institution and all her service benefits would be paid by the school in existence as on date. The inquiry should be completed within a period of four weeks from the date of receipt of certified copy of this order. 10. The appeal is disposed of in these terms.Appeal Disposed of. *******