bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 1822 OF 1997 PETITION NO. 1822 OF 1997 PETITION NO. 1822 OF 1997 Mangesh Bhaurao Khanwilkar ... Petitioner v/s Bhikaji Krishnaji Sawant ... Respondent Mr.S.A.Mudbidri for the petitioner. Ms.Anjali Helekar holding for Mr.V.P.Vaidya for the respondent No.2. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 26TH SEPTEMBER, 2008 26TH SEPTEMBER, 2008 26TH SEPTEMBER, 2008 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT: 1. The petition challenges the order of the School Tribunal dated 1.1.1997. By this order, the Tribunal has declared that the respondent No.1 is senior than one R.W.Masurkar and that the respondent is entitled to be continued in service by re-transferring him to the present school. the Tribunal has also directed the management to take action against the petitioner for maintaining of false and fabricated records of the school. 2 2. The brief facts of the case are as under:- . One R.W.Masurkar was appointed as an Assistant Teacher from 13.6.1988 in the school run by the 2nd respondent management i.e. Smt.Umatai Sharad Parulekar Madhyamik Vidyalaya Vadavali, Post Kalsalvali (in short, Smt.Umatai School). It appears that the 1st respondent was appointed on 28.6.1988 in the same school as an Assistant Teacher. In due course of time it was found that it was necessary to transfer the 1st respondent to another school run by the same management and, therefore, transfer orders were issued transferring the 1st respondent. An appeal was filed by him before the School Tribunal being Appeal No.16 of 1995. The 1st respondent contended that Masurkar was junior to him, having been appointed on 7.7.1988 and not on 13.6.1988 as recorded by the school. The 1st respondent also contended that Masurkar in fact was employed in a school i.e. Janta Vidya Mandir, Trimbak till 7.7.1988 and, therefore, not having been shown senior to the 1st respondent in order to transfer the 1st respondent to another school run by the same management. 3. The appeal was contested by the petitioner who was the headmaster of the Umatai School during the relevant time. The management also opposed the appeal filed by 3 the respondent No.1. Significantly, R.W.Masurkar, against whom several allegations have been made in the appeal, was not a party to the appeal. 4. The seniority lists for the years 1988-89, 1989-90 and 1992-93 were produced on record by the management. These seniority lists were signed by both, the respondent No.1 and Masurkar. The management in its reply had contended that the school tribunal has no jurisdiction to decide the appeal which challenges the seniority list maintained and produced by the management. It appears from the order of the School Tribunal that the documents on record were called from the Janta Vidya Mandir which indicated that Masurkar was working with that school till 9.7.1988. 5. The School Tribunal, after considering the documents produced on record including the record of Janta Vidya Mandir, held that Masurkar could not have been employed with the respondent No.2 management from 13.6.1988 as he was employed with Janta Vidya Mandir till 9.7.1988. The Tribunal, therefore, was of the opinion after considering these records that the petitioner had intentionally allowed Masurkar to sign the muster roll from 13.6.1988 in order to deprive respondent No.1 of his seniority. 4 6. Before proceeding to deal with the impugned order, it must be noted here that the 1st respondent is now working with the 2nd respondent management in Umatai School. Mr.Masurkar is now working in some other school run by a different management. Therefore, there does not appear to be any further grievance on the part of the respondent No.1. In fact, the order of the School Tribunal directing that the respondent No.1 be shown senior to Masurkar and that he be re-transferred to Smt.Umatai School has been implemented. Respondent No.1 has been working in the school and continues to work even today. 7. The learned counsel for the petitioner submits that the order of the School Tribunal directing the management to take strict action against him for maintaining false and fabricated documents, must be set aside. She submits that when Masurkar was appointed, he had produced the discharge certificate from Janta Vidya Mandir after which he was appointed on 13.6.1988 in the present school. Therefore, she submits that the petitioner had no reason to disbelieve the certificate produced by Mr.Masurkar and accordingly appointed him as a Assistant Teacher from 13.6.1988. She further points out that no opportunity was given to the petitioner to 5 reply to the documents produced on record from the Janta Vidya Mandir, nor was any cross-examination permitted of the person who produced the documents. She submits that the Tribunal has incorrectly recorded that the headmaster of Janta Vidya Mandir had produced the record. In fact, a clerk from that school had produced the same. 8. In my opinion, the Tribunal could not have passed the order directing the respondent management to take action against the petitioner without there being cogent evidence on record to indicate that it was the petitioner who had fabricated the records of the school. The Tribunal has ignored the fact, surprisingly, that Masurkar was not a party to the appeal. In fact he would have been the best person to explain as to when he joined service and whether he continued on the rolls of Janta Vidya Mandir till 9.7.1988. The Tribunal, in my opinion, has therefore erred in directing the respondent No.2 management to take action against the petitioner without there being sufficient material on record indicating the culpability of the petitioner. 9. The order of the Tribunal is, therefore, set aside to the extent that it directs the management to take action against the petitioner on account of maintaining 6 false and fabricated records in Smt.Umatai School. 10. Writ petition dismissed. Rule discharged. No order as to costs.