: 1 : wp-4713-10.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4713 OF 2010 Umid S.P. Va Samajseva Mandal & Anr. ..Petitioners Vs. Farida Abdul Gafar Shaikh & Ors. ..Respondents Mr. I.M.Khairdi for the Petitioner Mr. S.S.Kanetkar for Respondent No.1 Mr. R.M.Patne AGP for Respondent No.2 CORAM: S.C.DHARMADHIKARI, J. DATE: AUGUST 8, 2011. P.C.: 1 This Writ Petition challenged an order dated 7-2-2008 of the Grievance Committee. 2 The Grievance Committee by the impugned order allowed the Appeal preferred by Respondent Teacher and quashed and set aside her alleged termination dated 16-7-2004. The Petitioner was directed to reinstate the First Respondent as an Assistant Teacher and to pay her salary from 16-7-2004 till her service are reinstated @ Rs.1000/- per month. The Education Officer was directed to release the salary after the First Respondent is reinstated as Assistant Teacher. 3 All parties are duly served. This writ petition is disposed of by this order. 4 The only contention that has been canvassed before me is that One : 2 : wp-4713-10.sxw Member Grievance Committee for entertaining complaints of the First Respondent Shikshan Sevak has no jurisdiction to entertain, try and decide the Appeal against the alleged termination. It is held in the decision of The Secretary, SH.A.P.D.Jain Pathshala & Ors. Vs. Shivaji Bhagwat More and Ors decided on 4-7-2011 that such orders are without jurisdiction. 5 It is then contended that even after the order passed by the Grievance Committee the First Respondent did not resume duties but chose to remain absent. She was removed from service on 7-12-2009, which removal is challenged by her by filing an Appeal before the School Appellate Tribunal, Solapur. That appeal is pending. 6 On two occasions this matter was heard so as to enable the parties to arrive at an amicable settlement. Despite bringing to the Notice of this Court, the Judgment of the Hon’ble Supreme Court, Mr. Khairdi on instructions states that the Petitioner management is not averse to reinstating the First Respondent in service but she would be reinstated as a Shikshan Sevak and not as Assistant Teacher. The order of the Grievance Committee is a nullity and, therefore, no benefit can flow from the said order. 7 On the other hand, Mr. Kanetkar appearing on behalf of the First Respondent states on instructions that the First Respondent is in dire need of job. She is ready and willing to forgo her rights in the pending Appeal : 3 : wp-4713-10.sxw before the School Tribunal. She is ready and willing to go back in service of the Petitioner management but as a Assistant Teacher. She must receive continuity of service from 7-2-2008. As far as honorarium that is directed to be paid, the First Respondent is ready and willing to forgo the honorarium provided, the Petitioner pays to her all arrears of salary as Assistant Teacher from 7-2-2008. Accordingly, the Petitioner management and the 2nd Respondent Education Officer be directed by this Court to release the benefits. 8 After hearing both the sides, in my view, the Grievance Committee may have had no jurisdiction to entertain and try the grievance raised by the First Respondent by filing an appeal before it, nevertheless, the record indicates that the First Respondent was terminated orally in as much as from 16-7-2004, she was not allowed to sign the muster roll. She was appointed as a Shikshan Sevak on a consolidated salary of Rs.4000/- from 1-11-2001. The Petitioner management was aware that ordinarily she would have absorbed as Assistant Teacher on completion of 3 years service as Shikshan Sevak. The Education officer appeared before the Grievance Committee and even now has stated that prior permission of Regional Deputy Director is necessary before terminating the service of the First Respondent. Although, it was stated that such approval/permission was sought but the Regional Deputy Director, Education gave no reply, it was open for the Petitioner management to : 4 : wp-4713-10.sxw move the Regional Deputy Director, Education and request him to make an inquiry with regard to the teaching performance of the First Respondent and if the Regional Deputy Director, Education says that her services were unsatisfactory, she could have been terminated. However, the record before the Grievance Committee and before this Court indicates that prior permission of Regional Deputy Director was not obtained before terminating the services of the First Respondent. In these circumstances, even if the order of the Grievance Committee is kept aside, still this Court is satisfied that the Petitioner management was not justified in terminating the services of the First Respondent abruptly and that too not in accordance with law. It is clear that with a view to deprive her of the benefits of absorption in regular service that she has been not allowed to sign the muster roll. Even after the order of the Grievance Committee, the Petitioner management permitted her to report for work but stated that she has abandoned the service and that is the stand taken before the School Tribunal and before me. However, the fact remains that no disciplinary inquiry was held and it is the Petitioner management’s perception that the services are abandoned by the First Respondent. 9 In the absence of any record and findings of abandonment of service rendered after a proper inquiry that the First Respondent could not have been terminated. A suggestion was given to both sides to reinstate the First Respondent in the service of the Petitioner. That suggestion was : 5 : wp-4713-10.sxw made because in the peculiar facts of this case, it is not open for the Petitioner management to ignore the order the of the Grievance Committee dated 7-2-2008. The first Respondent has reported for work thereafter, on the own showing of the Petitioner management but she did not report after and some time abandoned the service, is their stand. Therefore, in the peculiar facts of this case, even if the Grievance Committee order is set aside, that would amount to restoring an illegal termination of the First Respondent’s services. The jurisdiction under Article 226 and 227 of the Constitution of India cannot be utilised to restore another illegality whilst setting right one illegality. In these circumstances, interest of justice would be served if the stand taken by the First Respondent is accepted. In the peculiar facts of this case the Writ Petition is disposed of by the following Order: (i) The First Respondent shall stand reinstated in the service of the Petitioner as an Assistant Teacher on completion of 3 years service as a Shikshan Sevak w.e.f. 1-11-2001. However, the First Respondent shall be entitled for benefits of continuity of service and arrears of salary as also all other dues w.e.f. 7-2-2008. (ii) In the peculiar facts of this case and when the Education officer has taken the above noted stand before the Grievance Committee as well as before this Court, he shall release the salary grant, in so far as the First Respondent is concerned and thereafter it will be : 6 : wp-4713-10.sxw permissible for the Education officer to take such action against the Petitioner management including recovery of the amounts which are paid towards the dues of the First Respondent. The First Respondent be reinstated in service as Assistant Teacher by 22-8-2011. The Regional Deputy Director, Education and particularly Respondent No.2 to release the arrears of salary and other dues of the First Respondent within a period of 8 weeks from today. (iii)The Writ Petition is disposed of. (iv)It is clarified that there was a broad agreement between the parties in so far as reinstatement of the First Respondent in the service of the Petitioner is concerned, but the dispute was only with regard to her status. The Petitioner desired that the First Respondent should be reinstated as Shikshan Sevak, whereas the First Respondent asserted that she should be reinstated as an Assistant Teacher. Having put in 10 years of service it would not have been fair and equitable to direct that the First Respondent should be reinstated as Shikshan Sevak on meagre salary of Rs.4000/- p.m. That would have deprived her legitimate dues and status despite her illegal termination. In these peculiar facts and finding that the relief granted to her today serves the ends of Justice that the above order is passed. Mr. Kanetkar on instructions from the First Respondent : 7 : wp-4713-10.sxw states that she will not proceed with the School Tribunal Appeal being Appeal No.15 of 2010. She will proceed to withdraw the same upon compliance of this order. Statement accepted. (v) Needless to direct that the Petitioner shall forward all details and records to the Respondent No.2 Education Officer so as to enable him to take necessary steps to comply with the orders and directions of this Court. (S.C.DHARMADHIKARI, J.)