-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4118 OF 2000 Nazir Dastagir Pattekari ) R/o Bagani, Tal. Walwa, Dist. Sangli. )..Petitioner vs. 1. The State of Maharashtra, through the ) Additional Government Pleader, High Court, ) Mumbai. ) 2. Jay Shivraj Shikshan Prasarak Mandal Bhadole, ) Tal. Hatkanangale, Kolhapur. ) 3. The Headmaster, Bhadole High School, Bhadole, ) Tal. Hatkanangale, Kolhapur. ) 4. The Education Officer (Secondary) ) Zilla Parishad, Kolhapur. )..Respondents Mr. S.S. Pakale for the petitioner. Mr. A.I. Patel, AGP, for respondent Nos. 1 and 4. Respondent Nos. 2 and 3 served. CORAM: P.B. MAJMUDAR, J. DATE: AUGUST 04, 2008. ORAL JUDGMENT By filing this petition under Article 226 of the Constitution of India, the petitioner has prayed that appropriate direction may be issued to respondent Nos. 2, 3 and 4 directing them to pay to the petitioner unpaid -2- salary payable to him as an Assistant Teacher for the period 12th June, 1995 to 9th December, 1998. 2. The case of the petitioner is that the petitioner was serving as an Assistant teacher in Respondent No.3 School. Respondent No.2 is an educational institution which runs the secondary school i.e. Respondent No.3. The petitioner was appointed as an Assistant Teacher in June,1995. The grievance of the petitioner is that respondent Nos. 2 and 3 did not release the monthly salary of the petitioner regularly as per the Rules and when he tried to make a demand about the same, his services were orally terminated on 9th December, 1998. 3. Being aggrieved by the said oral termination, the petitioner preferred an appeal being Appeal No. 201 of 1998 under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1979 before the School Tribunal at Kolhapur. The Tribunal allowed the said appeal by its order dated 15th February, 2000. The respondent Nos. 1 to 3 were directed to reinstate the petitioner to his original post from the date of his termination dated 9th December, 1998. The Tribunal also directed respondent Nos. 1 to 3 to pay back wages for the intervening wages to the petitioner. However, regarding unpaid salary for the period during which the petitioner had served before oral termination, the -3- Tribunal came to the conclusion that the said relief cannot be granted in view of Section 11 (2) (c ) of the Act. Reliance is placed on the judgment of this Court in the case of Sangam Education Society vs. Bharti Hansrajm, 1995 (1) M.L.J. 847, wherein this Court has held that the Tribunal in exercise of power under Section 11 (2) ( c) cannot direct payment of unpaid salary of period prior to the order of termination, dismissal, removal or reduction in rank. In view of the aforesaid position, the petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution of India with a prayer that respondent Nos. 1 to 3 may be directed to pay unpaid salary to the petitioner for the period 12th June, 1995 to 9th December, 1998. 4. Mr. Pakale, learned counsel appearing for the petitioner, has submitted that the school in question is a grant-in-aid institution and it is also recognised by the Government. It is submitted that in this view of the matter, the petitioner has invoked the jurisdiction of this Court under article 226 of the Constitution of India as the School is a recognised school and is getting full grant-in-aid from the State Government. 5. It is required to be noted that the Tribunal was justified in not granting prayer for unpaid salary for the earlier period i.e. at the time when the petitioner's services were terminated, as there is no provision in the Act for giving such relief. There is nothing in the Act wherein any dispute -4- regarding service conditions of a teacher can be taken care of in an appeal before the Tribunal. It is for the legislature to consider whether the provisions of Section 11 is required to be amended in this behalf as the teachers are now required to approach the High Court under Article 226 of the Constitution for ventillating their grievance even for unpaid salary while in service. However, considering the fact that the institution is getting grant-in- aid from the Government, this Court can certainly give necessary direction in connection with the unpaid salary of a teacher. 6. Mr. Pakale in this behalf has relied upon the decision of a Division Bench of this Court dated 10th October, 2000, in the case of Vishnu Jotiram Charapale vs. State of Maharashtra and others, wherein this Court has allowed the writ petition and directed the management to pay within the stipulated period the entire salary for the period in question. Even though respondent Nos. 2 and 3 are reserved, none appears on their behalf. Mr. Patel, learned Assistant Government Pleader, on the other hand has submitted that it is not in dispute that the institution in question is grant in aid institution and it is a recognised institution. Considering the fact that without justifiable reasons, the concerned teacher has not been paid salary for the period during which he was in service and as per the say of the petitioner, salary has not been paid for the period 12th June, 1995 to 9th December, 1998, the petition is required to be allowed by directing -5- respondent Nos. 2 and 3 to pay unpaid salary to the petitioner which he was entitled while serving on the post of Assistant Teacher and such salary should be paid within a period of three months from today. 7. As pointed out earlier, though served, none appears for respondent Nos. 2 and 3. No reply affidavit has been filed by respondent Nos. 2 and 3. In case if the amount is not paid, respondent No.4 is directed to deduct the said amount from the grant payable to the institution and make the said payment to the concerned teacher. It is for respondent No.1 to consider whether it should be treated as a salary grant or non-salary grant. However, such decision can be taken by respondent No.4, after hearing the management concerned. The argument of Mr. Pakale is also recorded at this stage that the petitioner was serving at the relevant time and, therefore, was entitled to salary as he was discharging his duties regularly. 8. In view of what is stated above, petition is accordingly allowed. Rule is made absolute with no order as to costs. P.B. MAJMUDAR, J.