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2014 DIGILAW 1717 (BOM)

Bhadrawati Shikshan Sanstha v. Hashib Pasha

2014-08-02

Z.A.HAQ

body2014
JUDGMENT Z.A. Haq, J. 1. Heard Shri Jibhkate, the learned Advocate for the petitioners, Mr. Shende, the learned Advocate for the respondent No. 1 and Ms. Rane, the learned AGP for the respondent Nos. 2 and 3. Rule made returnable forthwith. 2. The petition takes exception to the order passed by the School Tribunal allowing the appeal filed by the respondent No. 1, setting aside the termination order and directing his reinstatement with continuity of service and backwages. 3. The respondent No. 1 filed the appeal before the School Tribunal contending that the petitioner No. 2-Head Master had issued an advertisement for the post of peon in the daily "Loksatta" dated 3rd December, 1999, pursuant to which the selection process was undertaken. It is submitted that the respondent No. 1 was appointed as peon in the vacancy in the school administered by the petitioner No. 1-Management by order dated 13th December, 1999 on probation for the period of two years i.e. 1999-2000 and 2000-2001. The respondent No. 1 was prevented from signing the Muster Roll from 17th February, 2001 though according to the respondent No. 1, he worked till the last date of session i.e. 8th May, 2001. According to the respondent No. 1, the petitioners having restrained him from signing the Muster Roll from 17th February, 2001, it amounted to otherwise termination and being aggrieved by it, he filed the appeal before the Tribunal challenging the action of the petitioners. 4. The petitioners opposed the claim made by the respondent No. 1. The petitioner No. 1-Management denied that the appointment of the respondent No. 1 was in a clear and permanent and vacant post and that the respondent No. 1 was appointed for two years i.e. 1999-2000 and 2000-2001. The petitioners denied the allegations of the respondent No. 1 that he was prevented from signing the Muster Roll from 17th February, 2001 and that he has worked up-to 8th May, 2001. The petitioners submitted that there was no vacant post in the school administered by the petitioner No. 1-Management and the Education Officer had not granted approval to the appointment of the respondent No. 1. According to petitioner No. 1-Management, the respondent No. 1 was irregular in attending the school and he went on leave without giving any application and without any permission from the Head Mistress. According to petitioner No. 1-Management, the respondent No. 1 was irregular in attending the school and he went on leave without giving any application and without any permission from the Head Mistress. The petitioner No. 1-Management submits that the respondent No. 1 was absent from the school without seeking leave from 17th December, 2001 and as he was the non-permanent employee, as per the provisions of Rule 16(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, (hereinafter referred to as the "Rules of 1981") it was deemed that he had abandoned his service. 5. The Tribunal proceeded with the matter. In view of the disputed questions of fact, the parties led evidence. The Tribunal, after considering the pleadings and the evidence of the parties and the documents filed by them on record, by the order dated 7th September, 2013, allowed the appeal and granted relief to the respondent No. 1. The petitioners, being aggrieved by the order passed by the Tribunal, have filed the present writ petition. 6. Shri Jibhkate, the learned Advocate, has submitted that the findings of the Tribunal are perverse and unsustainable in law. It is submitted that the claim, as made by the respondent No. 1 as per the provisions of section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as "Mah. Act III of 1978") is without any basis. It is submitted that neither the appointment of the respondent No. 1 was as per the procedure laid down by section 5 of the Mah. Act III of 1978 nor there was any vacancy for the post of peon in the school administered by the petitioner No. 1-Management in which the respondent No. 1 could have been appointed and continued. Shri Jibhkate, the learned Advocate, has pointed out from the communication dated 22nd of January, 1998 at Annexure-II to the petition that the Education Officer had recommended six posts of Class-IV employees, Laboratory Attendants and others in the school administered by petitioner No. 1-Management, however, a note at the foot of the communication stated that the appointments should be made only after the approval was granted for sanction of the new posts. It is submitted that the petitioners issued the advertisement in anticipation and appointed the respondent No. 1 but, subsequently the Education Officer had not sanctioned the additional post of peon in which the respondent No. 1 was appointed and, therefore, the respondent No. 1 has no right to claim that he was appointed in regular and permanent post, as contemplated by the provisions of section 5 of the Mah. Act III of 1978. The learned Advocate for the petitioners has submitted that the respondent No. 1 was absent for the period from 21st November, 2000 to 21st December, 2000 and from 17th February, 2001 to 30th April, 2001 without giving any application for leave and, therefore, he being non-permanent employee, in view of Rules 16(2) of the Rules of 1981, by deeming fiction it was treated that the respondent No. 1 had abandoned his services. It is submitted that the Tribunal has not considered this relevant aspects and mis-directed itself by relying on the provisions of section 5(3) of the Mah. Act III of 1978, which has resulted in the erroneous order. 7. Shri Shende, the learned Advocate for the respondent No. 1, has submitted that the respondent No. 1 was appointed after the advertisement was issued for the post, therefore, the appointment of the respondent No. 1 is proper and cannot be said to be illegal. It is submitted that the services of the respondent No. 1 are terminated on the ground of unauthorised absence which is a misconduct as per the provisions of Rule 28(5)(c) of the Rules of 1981. Shri Shende, the learned Advocate, has submitted that Rule 28(5)(c) of the Rules of 1981 lays down that the employee can be punished for willful and persistent negligence of the duty. It is submitted that "Wilful negligence of duty" is explained as: (i) dereliction in, or failure to discharge, any of the duties prescribed by or under the Rules of 1981, (ii) persistent absence from duty without previous permission, and (iii) any other act of similar nature. It is submitted that Rule 33(1) of the Rules of 1981 lays that if an employee is alleged to be guilty for any of the grounds specified under Rule 28(5) of the Rules of 1981 then the Management is required to conduct an inquiry as per the Rules against the employee and take appropriate action according to the inquiry report. It is submitted that Rule 33(1) of the Rules of 1981 lays that if an employee is alleged to be guilty for any of the grounds specified under Rule 28(5) of the Rules of 1981 then the Management is required to conduct an inquiry as per the Rules against the employee and take appropriate action according to the inquiry report. It is submitted that in the present case, the petitioners have not acted as per the procedure laid down in Rule 33(1) of the Rules of 1981 and, therefore, the School Tribunal has rightly allowed the appeal filed by the respondent No. 1. The learned Advocate for the respondent No. 1, has submitted that the petitioners have come out with the case that the respondent No. 1 was absent from duty for the period from 21st November, 2000 to 21st December, 2000 and 17th February, 2001 to 30th April, 2001 without giving any application for grant of leave and the petitioners have treated that the respondent No. 1 has abandoned his services. It is submitted that the petitioners have neither pleaded nor have placed any document on the record to show that any notice was given to the respondent No. 1 to report on duty. The submission on behalf of the petitioners is that failure on the part of the petitioners to give notice to the respondent No. 1 requiring the respondent No. 1 to report on duty, falsifies the case of the petitioners that the respondent No. 1 was absent from the duty in the above mentioned period. It is submitted that the respondent No. 1 was not absent from the duty as stated by the petitioners but he was not permitted to sign the Muster Roll and he had made written complaint to the Education Officer about this. It is submitted that the Tribunal has properly considered the material on the record and has passed reasoned order which, does not require any interference by this Court in the extraordinary writ jurisdiction. 8. After considering the arguments made on behalf of the petitioners and the respondent No. 1 and examining the record, I find that there are no pleadings by the respondent No. 1 that his appointment was as per the requirements of section 5 of the Mah. Act III of 1978. 8. After considering the arguments made on behalf of the petitioners and the respondent No. 1 and examining the record, I find that there are no pleadings by the respondent No. 1 that his appointment was as per the requirements of section 5 of the Mah. Act III of 1978. It had been the specific case of the petitioners that right from the beginning that the post in which the respondent No. 1 was appointed was not on clear and permanent post and have filed document to support the submission. The respondent No. 1 has not been able to controvert the factual position. The respondent No. 1 has not been able to bring any material on the record to show that the post in which he was appointed was clear and permanent post. It is undisputed that the respondent No. 1 has worked in the school for two academic sessions i.e. 1999-2000 and 2000-2001. It is undisputed that the respondent No. 1 was appointed by the order dated 13th December, 1999, though there is dispute about the date till which the respondent No. 1 has worked in the school. Even according to the respondent No. 1, he has worked in the school till 8th May, 2001. Thus, the respondent No. 1 had not acquired the status of the confirmed employee. It is undisputed that the appointment of the respondent No. 1 was not granted approval by the Education Officer. In these facts, the respondent No. 1 has no right to make claim for reinstatement as the peon in the school administered by the petitioner No. 1-Management. 9. The case of the petitioners is that the respondent No. 1 remained absent for the period from 21st November, 2000 to 21st December, 2000 and from 17th February, 2001 to 30th April, 2001 without giving any application for grant of leave. The case of the petitioners is that in view of the unauthorised absence of respondent No. 1 for the long period as stated above and in view of the provisions of Rule 16(2) of the Rules of 1981 by deeming fiction, the services of the respondent No. 1 came to an end and it has to be treated that as he had abandoned his service. However, the petitioner No. 1-Management has not been able to justify this contention. However, the petitioner No. 1-Management has not been able to justify this contention. The petitioners have nowhere stated that the respondent No. 1 was given any notice requiring the respondent No. 1 to report on duty. The petitioners have not placed any document on the record to show that they had given any notice to the respondent No. 1 requiring him to report on duty. In view of these facts, I am not inclined to accept the submission made on behalf of the petitioners that the respondent No. 1 had abandoned his service by remaining absent for a long period without giving any application for grant of leave. The submission made on behalf of the respondent No. 1 that the action of the petitioners amounts to otherwise termination of his service and it is not sustainable in law, is worth consideration. Therefore, I hold that the termination of the services of the respondent No. 1 is on 17th February, 2001 not according to law and is not sustainable in law. 10. The question arises as to what relief can be granted to the respondent No. 1 in this situation. As per the settled law, the respondent No. 1 cannot make any claim for reinstatement on the post as he has failed to prove that his appointment was made in a clear and permanent post after following the procedure prescribed by the provisions of section 5 of the Mah. Act III of 1978. However, the termination of services of the respondent No. 1 was arbitrary from 17th February, 2001 and unsustainable in law. As per the law laid down by the Hon'ble Supreme Court in the judgment given in the case Bharatiya Gramin Punarrachana Sansta vs. Vijay Kumar and others, reported in AIR 2002 SC 3092 even if the submissions made on behalf of the respondent No. 1 are accepted that he was appointed on probation, the respondent No. 1 would be entitled for reinstatement till 8th May, 2001 i.e. end of academic session 2000-2001 up to which he was appointed by the appointment order dated 13th December, 1999. It is undisputed that the respondent No. 1 had not been paid salary from 18th February, 2001 till 8th May, 2001. The respondent No. 1 will be entitled for the salary for the above mentioned period from the petitioners. 11. It is undisputed that the respondent No. 1 had not been paid salary from 18th February, 2001 till 8th May, 2001. The respondent No. 1 will be entitled for the salary for the above mentioned period from the petitioners. 11. The petitioners had issued an advertisement for the post of peon and appointed the respondent No. 1 in the school administered by the petitioner No. 1-Management. The respondent No. 1 having bona fide acted pursuant to the advertisement issued by the petitioners and having offered his candidature for the post, no fault can be found with the respondent No. 1. The petitioners are, therefore, liable to pay compensation to the respondent No. 1 for misleading him and giving appointment by misrepresenting that the post in which he was appointed was clear and permanent post. Though it is difficult to calculate the amount of compensation, the guidelines provided by section 11(2)(e) of the Mah. Act III of 1978, can be taken into consideration. The respondent No. 1 having worked for less than two years in the school administered by the petitioner No. 1-Management, the respondent No. 1 would be entitled for compensation equivalent to six months' salary calculated at the present rate. The petitioners are liable to pay this amount to the respondent No. 1. 12. In view of the above, the following order is made:-- The order passed by the School Tribunal is set aside and the following order is passed:-- The petitioner No. 1-Management to pay salary of the respondent No. 1 for the period from 18th February, 2001 to 08th May, 2001. In addition, the petitioner No. 1-Management to pay compensation equivalent to six months' salary as per today's rate to the respondent No. 1. The amount be paid to the respondent No. 1 till 30th September, 2014. In default on the part of the petitioner No. 1-Management to pay the amount within the above stated time, the amount shall carry interest @ 12% per annum from the date of termination till the amount is paid to the respondent No. 1. The Writ petition is allowed in the above terms. In the circumstances, the parties to bear their costs. Petition allowed.