1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5463 OF 2009 The President Banage Shikshan Sanstha Banage, Taluka Kagal, District Kolhapur & Anr. ....Petitioners. V/s Shri Mohan Balu Jigare & Anr. .... Respondents. Mr. S.S. Pakale i/b Mr. Kirankumar J. Phakade for the petitioners. Mr. P.I. Khemani, AGP for the State. CORAM: V.M. KANADE, J. DATE : 29TH JUNE, 2009 P.C:­ 1. By this Petition, petitioners are challenging the judgment and order passed by the School Tribunal dated 30/7/2007 and the order passed in Review Petition filed by the petitioners herein dated 27/4/2009. 2. Brief facts are as under:­ 2 3. Respondent No.1 was working as a peon in petitioner No.2 – school since 1991. Petitioner No.1 is a Society registered under the Societies Registration Act and under the Public Trust Act. The services of respondent No.1 were terminated by order dated 10/3/2001. Being aggrieved by the said order of termination, respondent No.1 filed an appeal before the School Tribunal. It was contended that he was a permanent employee since he had worked for more than 9 years with Petitioner Nos. 1 and 2 and, therefore, his services could not be terminated except by due process of law. It was further submitted that he was not allowed to join his duties and was prevented from signing the muster roll kept for the staff. Petitioners herein filed Written Statement. It was stated in the Written Statement that respondent No.1 herein was continuously absent from his duties in spite of repeated memos being issued to him and, therefore, they were constrained to terminate his 3 services and in view of his continued absenteeism from duties, there was no need to make any inquiry against him. 4. The School Tribunal held that the respondent No.1 was a permanent employee and, therefore, domestic inquiry ought to have been held against him before issuing an order of termination. The Tribunal also accepted the documents filed by respondent No.1 viz. complaint dated 8/7/1999 at Exhibit 7/3 whereby respondent No.1 was forced to give up his claim of seniority and promotion of a clerk from the post of peon. The Tribunal further came to the conclusion that the complaint filed by respondent No.1 herein clearly showed that the petitioner No.2 did not allow him to sign the muster roll from 4/5/1999. On the basis of evidence and the material placed before it, the Tribunal allowed the appeal and set aside the order of termination dated 10/3/2001 and directed the petitioners to reinstate respondent No.1 in service with full back­wages and 4 continuity of service and consequential benefits. 5. Though this order was passed by the Tribunal on 30/7/2007, the said order was not implemented. The said order was also not challenged immediately by the petitioners herein. A review Petition, however, was filed against the said order before the School Tribunal in October, 2007 i.e almost after 3 months from the date of the impugned order. The review petition was also dismissed by Presiding Officer of the School Tribunal by order dated 27/4/2009. Thereafter, present Petition has been filed by the petitioners herein. 6. Mr. Pakale, learned Counsel appearing on behalf of the petitioners, candidly submitted that he was not pressing against the order of reinstatement passed by the School Tribunal. He submitted that the School Tribunal had not taken into consideration the fact that respondent No.1 had not 5 established that he was not gainfully employed during the aforesaid period and the initial burden was on the employee to prove that he was not gainfully employed. He submitted that there is no averment made in appeal memo to that effect. He submitted that, therefore, the Tribunal erred in granting back­ wages without considering this issue. It was submitted that, therefore, the order passed by the School Tribunal in respect of payment of back­wages may be set aside. It was further contended that the petitioners were not in a position to pay back­wages to respondent No.1. 7. In my view, there is no merit in the submissions made by the learned Counsel appearing on behalf of the petitioners. Though respondent No.1 was a permanent employee, his services were terminated without holding any inquiry. It was always open for the petitioners to issue a charge­ sheet to respondent No.1 and, thereafter, hold an inquiry in 6 respect of misconduct allegedly committed by him. The Tribunal, after perusing the material which was produced by respondent No.1, has recorded a finding that the petitioners had not permitted him to join his duties or to sign the muster roll and had compelled him to forgo his claim of seniority and promotion to the post of clerk from the post of peon. Since this is a finding of fact recorded by the Tribunal, it is not open for this Court to substitute its own view to the view taken by the Tribunal. The submission made by the learned Counsel Mr. Pakale that the order granting full­back wages to respondent No. 1 is illegal, also cannot be accepted. In the present case, services of respondent No.1 were terminated without holding an inquiry and in a most high­handed manner, though he was a permanent employee. It is alleged that respondent No.1 had developed habit of consuming liquor and remaining absent regularly without prior approval. If this was the allegation against respondent No.1, it was the duty of the petitioners to 7 hold an inquiry and to establish the charges levelled against him. Instead of following the procedure laid down under the Act and Rules framed thereunder, petitioners took law into their own hands and forcibly prevented respondent No.1 from joining duties and signing muster roll. The Tribunal, therefore, under these circumstances, was justified in awarding full back­wages to respondent No.1. Though the order was passed on 30/7/2007, no steps were taken to implement the said order or challenge the said order by filing Writ Petition in this Court. Petitioners, instead of implementing the said order, filed a review petition before the Tribunal and, as a result, for a period of more than two years, the order passed by the Tribunal was not implemented. No case is, therefore, made out for interfering with the order passed by the Tribunal. Petition is therefore dismissed in limine. (V.M. KANADE, J)