AI Structured Summary
Not yet generated for this judgment
Judgment
Petitioner approached the School Tribunal in an Appeal
No. 42/2010, under Section 9 of the Maharashtra Employees of Private School (Conditions of Service) Act, 1977. He pointed out oral termination of his services on 26.06.2010. He has claimed that on that day he was prohibited from signing the muster roll by one Assistant Teacher Shri Hemant Gopal Joshi. He was asked to contact the President, and when the appellant contacted the President, the President informed him that services of appellant were not required.
The employer [respondent nos. 1 and 2], filed their written statement before the School Tribunal. They admitted employment, but, denied any termination on 26.06.2010. They came up with a defence that the President informed petitioner / appellant to attend primary school at place Vishwi because teacher there was absent. Petitioner refused to obey that orders and insisted
upon issuing transfer order. In paragraph no.10 of the written statement they have submitted that it is not proper and correct on his part to claim that he has been terminated from services orally or in any other manner. While answering to grounds, in paragraph (b), employer claims that the appellant has utterly and miserably failed to make out a case of termination from 26.06.2010. It is further submitted by them in paragraph no.12, that no cause of action accrued to petitioner for filing such an appeal.
It is in this background that the School Tribunal framed the following issues :
" ISSUES FINDINGS.
Whether the respondent no.2 School was recognized under the MEPS Act ? .... Yes.
Whether the appointment of the appellant was made as per Section -5 of the MEPS Act, and the Rules thereunder ? .... No.
Whether the appellant is otherwise terminated from the service by respondent nos. 1 and 2 on 26.06.2010 ? ... Yes.
Whether said termination of the appellant by the respondents, is illegal ? ... Yes.
What order ? .... Appeal is dismissed in terms of final order."
Nobody has appeared either for petitioner - employee or for respondent nos. 1 and 2 employer. Shri Ukey, learned Addl. G.P. has appeared for respondent no.4 and assisted the Court. He has pointed out that the judgment of School Tribunal against the appellant is delivered on 25.08.2011, and this Court after hearing the parties issued Rule on 06.12.2013. At that time, the judgment of School Tribunal was also stayed.
The controversy was then again considered on
18.03.2015. On that day, the Court noted submission of respective parties and found that the petitioner was not in service after 26.06.2010, it therefore, vacated the interim order. It is in this background that the controversy is being looked into by this Court.
Material on record shows that after proper advertisement in newspaper Lokmat on 22.06.2006, petitioner was selected and
appointed. He worked upto 26.06.2010 i.e. almost for 4 years.
What happened on 26.06.2010, need not detain this Court in this jurisdiction, because employer has come up with a specific case that services were not terminated on that date. In written statement filed before the School Tribunal, while opposing the appeal on 11.03.2011, the management has not pointed out that after 26.06.2010 and till 11.03.2011 for absence of petitioner, any action was taken or any other order of termination was issued. When School Tribunal decided the appeal, again there is no submission that actual termination had taken place after 26.06.2010 on some other date. Even before this Court when the matter was considered by it on 03.02.2012, 30.03.2012, 17.12.2012, 16.12.2013 or 18.03.2015, the employer has not pointed out that because of absence of petitioner after 26.06.2010, his services were terminated as per law. Dates mentioned supra shows that on those dates, different Hon'ble Judges of this Court heard the parties at some length and have passed a speaking order. Infact on 16.12.2013, the judgment delivered by the School Tribunal was stayed and on 18.03.2015, that stay has been vacated. Thus, had there been any other order of termination, it could have been definitely pointed out to this Court.
Perusal of orders of this Court on 03.02.2012 and 30.03.2012, show that an effort made to find out impact of fact that in school in which the petitioner was working did not receive any grant in aid. On 17.12.2012, Assistant Government Pleader had stated that obtaining no objection of education department before publishing advertisement for recruitment by such school was necessary. Time was given to learned AGP on that day to produce on record government resolution dated 06.01.2012. That government resolution has not been produced till date. Learned
Addl. G.P. has today also submitted that during the course of the day he can produce that government resolution for perusal of this Court.
However, I do not find it necessary to go into that controversy.
The School Tribunal has dismissed the appeal of the petitioner only on the ground that he was not recruited after following the procedure stipulated in proviso to Section 5 [1] of the MEPS Act. Thus, the School Tribunal found that before publishing advertisement for recruitment on 22.06.2006, previous permission
of the education department ought to have been obtained. Previous permission is necessary in order to enable the education department to forward surplus teachers to such schools against available vacancies. This exercise becomes necessary because teachers found surplus and retrenched accordingly, continue to earn their wages through public revenue. Hence, object is to provide work to such teaches who is getting salary without any work. Here, when employment with respondent nos. 1 and 2 is unaided, there is no question of government spending any amount on salaries of teaching or non teaching staff in that school. Consequently, a teacher who earns through public revenue cannot be or could not be sent to that school. Again I need not to conclude this controversy in present matter, as it does not squarely arise here.
The School Tribunal has found that as employment provided to petitioner was not after necessary NOC of education department, his appeal before it was not maintainable. It has relied upon the judgment of Division Bench of this Court reported at 1997
(3) Mh,.L.J. 697 (Anna Manikrao Pethe .vrs. Presiding Officer, School Tribunal and others) to answer the preliminary issue
accordingly. It has also relied upon judgment reported at 2003 (1) Mh.L.J. 425 (Nehru Jankalyan Bahu uddeshiya Shikshan Sanstha .vrs. Mohan Sauryabhan Wanjari), to hold that previous permission from education department ought to have been obtained.
In writ jurisdiction while examining this controversy, I find that the petitioner had put in about 4 years of service and his employer came up with a case that it has not terminated his services at all. In this situation, when there is no termination it was not necessary for the School Tribunal to go into all these niceties. If the approach of the School Tribunal is accepted, the employee like petitioner though not terminated, is kept out.
The School Tribunal, therefore, could not have dismissed the appeal only because of its finding that the recruitment of appellant was bad in law. Respondent nos. 1 and 2 management claimed that they did not terminate his services at all and as such, the School Tribunal could have asked them to permit him to join
back. The School Tribunal has in any way permitted management to take advantage of its own wrong. The wrong by employer is in not
obtaining previous permission of education department and the petitioner employee cannot be blamed for it. Other wrong by employer is in not issuing any written order to petitioner on
26.06.2010. Again petitioner cannot be blamed for it.
In this situation, the order of otherwise termination w.e.f.
26.06.2010 is set aside. Respondent nos. 1 and 2 are directed to permit petitioner to join back in his employment as before, with continuity, but, without back wages.
Writ Petition is thus partly allowed. Rule is made absolute in aforesaid terms with no orders as to costs.