1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3625 OF 2007 Chikotra Khore Gramin Shikshan Prasarak Mandal, Pangire ..Petitioner. Vs. Mahadeo Baburao Dandwate and others .. Respondents. ..... Mr. Sanjeev P. Kadam for the Petitioner. Mr. M.S. Topkar for Respondent No.1. Mr. R.M. Patne, AGP for Respondents 2 and 3. .... CORAM: DR. D.Y. CHANDRACHUD, J. 20th June, 2008. P.C. : 1. Rule, made returnable forthwith. The learned counsel appearing for the Respondents waive service. By consent of the learned counsel, taken up for hearing and final disposal. 2. These proceedings arise out a judgment dated 23rd April, 2007 of the School Tribunal at Kolhapur by which the Petitioner was directed to reinstate the First Respondent herein on the post of a Peon together with 25% of backwages from the date of termination of his service viz. 10th June, 2002. 2 3. The Petitioner before the Court is a public trust which is conducting a secondary school at village Pangire, Taluka Bhudhargad, District Kolhapur since 1999. The case of the Petitioner is that in 1996 a body by the name of Mauni Vidyapeet Gargoti commenced a secondary school at village Pangire. According to the Petitioner that body was unable to manage and conduct the school and as a consequence the school was closed down in 1997-98. Subsequently in 1997-98 the Petitioner was constituted and registered under the Bombay Public Trust Act 1950. The Petitioner claims to have applied to the Government for permission to start a new school on 28th August, 1998 and it has been stated that permission was granted by the Government on 13th March, 2000 on a no grant basis for the academic year 1999- 2000 for the 8th Standard. Subsequently accordingly to the Petitioner permission was granted for conducting the 9th and 10th Standards on a no grant basis. 4. The First Respondent instituted an appeal before the School Tribunal at Kolhapur in 2002 claiming that he was a Peon employed in a school conducted by the Petitioner and that his 3 services were terminated by an oral order of termination issued on 10th June, 2002. By the impugned order of the School Tribunal the appeal filed by the First Respondent was allowed and the First Respondent was directed to be reinstated with 25% backwages. One of the principal documents upon which reliance has been placed by the School Tribunal is a photocopy of an inspection report dated 23rd March, 2000 of the Education Officer (Secondary), Zilla Parishad, Kolhapur which refers the name of the First Respondent as a member of the non-teaching staff. A copy of that inspection report is annexed at Exhibit 1 to the affidavit in reply which has been filed by the First Respondent on 11th April, 2008 in these proceedings. 5. The principal issue which has been canvassed on behalf of the Petitioner is that the First Respondent was never employed as a Peon in the school managed and conducted by the Petitioner in pursuance of the permission granted by the State Government on 13th March, 2000. According to the Petitioner the First Respondent was as a matter of fact engaged by the Nagnath V.K.S. (Vikas) Seva Sanstha, Pangire from 1st April, 1999 and there was therefore no question of his being appointed as a Peon 4 with the Petitioner. Among the documents on which reliance has been placed are (1) an application submitted by the First Respondent to the Chairman / Secretary of the aforesaid co- operative society on 28th February, 2002 for the release of his salary; (2) a certificate dated 20th August, 2002 issued by the Co- operative Society to the effect that the First Respondent was employed with that society between 1st April, 1999 until 28th February, 2002 and (3) payment vouchers for the payment of salary effected to the First Respondent by the society. In reply the contention of the First Respondent is that he is a member of the co-operative society and that the President of the Educational Trust viz. the Petitioner herein is the chairman of the society as well. The First Respondent has relied upon a communication dated 5th April, 2008 issued by the Assistant Registrar, Co-operative Societies, Bhudhargad in which a list of the members of the managing committee and the staff of the aforesaid co-operative society is set out. That list, according to the First Respondent, does not include his name. On the other hand, it is the contention of the Petitioner that the alleged communication dated 5th April, 2008 which has been relied upon by the First Respondent does not bear any seal of the competent authority. On the other hand, the 5 Petitioner has relied on a communication dated 21st April, 2008 signed by the Assistant Registrar of Co-operative Societies, which bears the seal of the authority in which the name of the First Respondent is included as a Peon in the employment of the co- operative society during the period from 1st April, 1999 till 28th February, 2008. 6. A reference to these documents has become necessary in order to highlight that there is a serious disputed question before the Court as to whether the First Respondent was at the material time in the employment of the school which came to be conducted by the Petitioner at Village Pangire. Some part of the documentary material which has now been placed on the record of these proceedings was not before the School Tribunal. The Tribunal did not have therefore the benefit of considering this material. An additional circumstance is that before this Court in pursuance of an interim direction passed by the Court, a reply has been filed by the Deputy Education Officer (Secondary), Zilla Parishad, Kolhapur. The Tribunal has mentioned in the course of its judgment that the Education Officer had failed to appear before it. The Tribunal was therefore not apprised of the position as it obtained by the Deputy Education Officer (Secondary). In the 6 affidavit filed by the Deputy Education Officer in this Court, it has been stated thus in paragraphs 2, 3 and 4 : “2. With reference to Paras 2 and 3 of the Petition, I say and submit that the Petitioner Trust came to be established in the year 1998 and it has been granted permission to open a Secondary School at Pangire from the academic year 1999-2000. Thus, the School being run by the Petitioner at Pangire came in existence from an academic year 1999-2000 only and no school of the Petitioner Trust was in existence at Pangire and even at other places prior to the academic year 1999-2000. Thus, the School which was being run at Pangire prior to 1999-2000 has no relevance whatsoever with the Petitioner. 3. With reference to Paras 4 and 5 of the Petition, I say and submit that the Petitioner Trust has been allowed to start school on Non-Grant Basis. The rest of the contents in these paras are matter of record and hence no remarks are held necessary. 4. With reference to Para 6 of the Petition, I say and submit that no proposal of approval of appointment of the Respondent No.1 has been received from the Petitioner in the Office of this Respondent No.2 and as such no approval has been granted. The Respondent No.1 is thus non-approved person. I say and submit that there is nothing on the record, which go to show that the Respondent No.1 was given valid appointment order at the instance of the Petitioner. The Papers / Documents available with the office of this Respondent go to show that in all three posts of peons are sanctioned to the Secondary School run by the Petitioner at Pangire and these sanctioned three posts have been filled in by an appointment of candidates other than the Respondent No.1. Out of the three appointments made on sanctioned three posts of peons two appointments have been approved and approval to one appointment has been kept pending. 7 5. With reference to Para 7 of the Petition, I say and submit that it is seen from the Judgment and Order passed by the Learned Presiding Officer, Kolhapur on 23.04.2007 in Appeal No.86 / 2002 filed by the Respondent No.1 that he was serving in Nagnath V.K.S. (Vikas) Seva Sanstha, Pangire from 1.4. 1999 onwards and he was paid Rs.400/- p.m. as his salary.” 7. In view of the material which has been placed before the Court, it is only appropriate and proper that the Tribunal should reconsider the entire issue afresh having regard to all the circumstances which have now emerged. Both the learned counsel have agreed in stating before the Court that they have no objection to an order of remand and to a direction to the Tribunal to consider the matter afresh on the basis of the entire documentary material as it has emerged on the record. In order to facilitate this exercise, the impugned judgment and order of the Tribunal dated 23rd April, 2007 is quashed and set aside. Appeal 86 of 2002 shall stand restored to the file of the Presiding Officer of the School Tribunal at Kolhapur. Parties shall now appear before the School Tribunal on 14th July, 2008. The Education Officer (Secondary), Zilla Parishad, Kolhapur is directed to appear before the School Tribunal on 14th July, 2008 together with the entire record including the approvals granted from the inception for the teaching and non- 8 teaching staff of the school and the original inspection report, if any of 23rd March, 2000. The Education Officer shall file a reply before the Tribunal on or before 28th July, 2008. In order to enable the Tribunal to consider the matter in its entirety, the parties would be at liberty to prepare a comprehensive compilation inter alia containing all the documents and affidavits which have been filed in these proceedings and such other documents which parties may wish to rely upon. The Tribunal shall pass a fresh order after hearing the parties. The Petition is allowed in the aforesaid terms. In the circumstances of the case, there shall be no order as to costs. *****