1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2073 OF 1991 Yadav S/o Shrirang Magar } Age : 45 Years, Occ. : Service, } Vasantrao Naik Vidyalaya, } Wanola, Tq. Kinwat, Dist. Nanded. } .... PETITIONER V E R S U S 1. Dattaraya Jairam Rathod } President, Baliram Patil (Rathod) } Shikshan Prasaraak Mandal, } Wanola, Tanda, Tq. Kinwant, } Dist. Nanded. } 2. Yadav Harji Jadhav } In-charge Head Master, } Vasantrao Naik Vidyalaya, } Wanola, Tanda, Tq. Kinwant, } Dist. Nanded. } 3. The Education Officer, } Zilla Parishad, Nanded, } Dist. Nanded. } 4. The Dy.Director of Education, } Aurangabad, Dist. Aurangabad. } 5. The Presiding Officer } Schools Tribunal, Aurangabad } .... RESPONDENTS 2 Mr. P.K.Joshi, Advocate for petitioner. Mr. N.H.Borade, A.G.P. for State. Mr. S.S.Choudhari ,Advocate for respondent nos. 1 & 2. CORAM : V.R.KINGAONKAR, J. DATE OF JUDGMENT : 17/02/2010 ORAL JUDGMENT : 1. By this petition, the petitioner impugns Judgment dated 4/5/1991 rendered by the Presiding Officer, School Tribunal, Aurangabad in Appeal No. 44 of 1988, whereby his Appeal filed under section 9 of the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977 ( For short, ‘ M.E.P.S. Act ’ ) was substantially dismissed though it was partly allowed to the extent of retrenchment compensation. 2. The hapless petitioner was initially appointed on 15/6/1990 as Assistant Teacher and worked as such in Shivdas Vidyalaya. After about seven ( 7 ) years working till 3/11/1977, he was found surplus, thereafter under orders of the Education Officer, his services were shifted to Subhash Vidyalaya where he joined the post on 25/4/1977. He worked there till 31/8/1985 and again he was found 3 surplus. His services were shifted to Vasantrao Naik Vidyalaya run by the respondent nos. 1 and 2. He was working as Assistant Teacher in the educational Institution run by the respondent nos. 1 and 2 on clear and vacant post until he was allegedly terminated from service. 3. It is not in dispute that the petitioner was served with memorandums by the respondent nos. 1 and 2 and he was not pulling on well with the management of the educational Institution. It is also undisputed that he was served with an order dated 1/4/1988 to the effect that he was being relieved from the service and was referred to the Education Officer, Zilla Parishad, Nanded. He was directed to hand over the charge to the head of the school. It was stated in the order that the 8th B and 9th B sections of the classes were closed as per order of the Education Officer and, therefore, more number of teachers were not required by the educational Institution. 4. The petitioner alleged that though such order was received by him on 7/4/1988, yet he continued to work with the respondent nos. 1 and 2 till 17/5/1988 as he was nominated as in charge Head Master during the relevant period. He alleged that he was dis-allowed to work and was physically driven out of the school premises on 18/5/1988. He contended that his services were otherwise terminated without following due procedure. He submitted that his termination was the punitive action taken by the management of the school without 4 following regular procedure. Consequently, he preferred Appeal against the otherwise termination order rendered by the respondent nos. 1 and 2. 5. The respondent nos. 1 and 2 resisted the Appeal on various grounds. It was contended that the petitioner was never appointed as in charge Head Master. It was contended that the petitioner was temporarily appointed as per recommendation of the Education Officer but was retrenched with immediate effect as per the order dated 1/4/1988 because he was found as surplus teacher. It was contended that the Appeal was barred by limitation. It was further alleged that the petitioner in collusion with the concerned Education Officer had defrauded the education Institution for the amount of Rs. 60,000/- (Rupees Sixty Thousand only ). The respondent nos. 1 and 2 denied that the petitioner was terminated from service. It was the stand of the respondent nos. 1 and 2 that the petitioner was relieved from service because he was found as surplus teacher. 6. The learned Presiding Officer of the School Tribunal dismissed the Appeal for relief of reinstatement on the ground that it was barred by limitation. The learned Presiding Officer, however, partly allowed the Appeal and directed that the petitioner shall be paid salary for period of six ( 6 ) months by way of compensation due to the alleged loss of employment. Feeling aggrieved, the petitioner preferred 5 this petition. 7. Heard learned counsel for the parties. 8. At the threshold, let it be noted that the respondent nos. 3 to 5 did not resist the Appeal before the School Tribunal. Nor, any reply affidavit is filed by them in this Court. The School Tribunal dismissed Appeal for the reason that it was not filed within period of 30 days from the date of service of the impugned order ( Exh. D ) dated 1/4/1988. It is true that the memorandum of Appeal itself shows that said order was received by the petitioner on 7/4/1988. He filed the Appeal before the School Tribunal on 30/5/1988. Thus, technically speaking, there was delay of about 23 days. The case of the petitioner before the School Tribunal was, however, that actual termination was effected on 18/5/1988 when he was orally directed to refrain himself from attending the school and was physically ousted from the school premises. The School Tribunal did not verify factual aspects of these averments stated in the Appeal memo. It is important to note that even according to the respondent nos. 1 and 2, the order (Exh. D) dated 1/4/1988 was not of termination as such. The direction given to the petitioner under the said order was to relive him from the work and to refer him to the Education Officer. The tenor of the said order reveals that because the two ( 2 ) sections of the classes had been closed down and because he had worked adversely to the interest of the educational 6 Institution, he was being relieved from the post. Needless to say, the stand of the respondent nos. 1 and 2 was not that the petitioner came to be terminated as a result of the said order dated 1/4/1988. The order does not show as to since when he shall be relieved of the post. No specific date is shown in the order, calling upon the petitioner to hand over the charge of his post. It is, however, stated that he shall immediately hand over the charge. There is no tangible material on record to intimate that he actually handed over the charge of the post to any incumbent, who was, the then in charge head of the Institution prior to 18/4/1988. The correspondence issued by the Education Officer (Exhs. F, G and H) and letter dated 27/5/1988 would show that the petitioner was directed to be continued in the service. He was in charge Head Master at the relevant time. The relieving order did not show to whom he shall hand over the charge and when it shall be handed over. The Education Officer was required to issue letter dated 26/7/1988 (Exh. F) to the effect that the relevant record shall be handed over to the petitioner or else the pay grants for April, 1988 and onwards shall be with-held. 9. Considering the serious charges levelled in the order dated 1/4/1988 (Exh. D), it is amply clear that the petitioner was directed to give charge of his post on the basis of various allegations made against him. The order is stigmatic in nature. No enquiry was made against him about the so called allegations of mis-conduct. It was even alleged 7 that he had indulged in arranging clandestine meetings of staff members and teachers. It was alleged that he was instrumental in educating the members of the staff to create atmosphere of disharmony. In short, his alleged mis-conduct was found detrimental to the “ smooth ” working of the Institution. If that was so and the charges were serious, the respondent nos. 1 and 2 could have proceeded against him by holding necessary disciplinary enquiry. That was not done. 10. All said and done, in the absence of any material evidence, it could not have been said that the petitioner had been relieved of the post on 1/4/1988 or soon after the service of said order on him i.e. on 7/4/1988. For, direction issued to him was to hand over the charge of the post. When did he really hand over the charge is not made clear by the respondent nos. 1 and 2 by adducing any reliable evidence. In the teeth of such fact situation, the version of the petitioner could not have been lightly brushed aside by the School Tribunal. 11. Mr. Choudhari, learned counsel for the respondent nos. 1 and 2, strenuously argued that the petitioner was only a temporary employee with the respondent nos. 1 and 2 and, therefore, he could be relieved of the post when he was found as surplus teacher. He contended that the petitioner was accommodated by the respondent nos. 1 and 2 at the request of the Education Officer but when the two ( 2 ) sections of 8th and 9th standard were closed down, due to paucity 8 of the required number of students, the services of the petitioner were no more required. So he had become surplus teacher and, therefore, was referred to back to the Education Officer. I find it difficult to countenance the submissions in this context. 12. Assuming that the petitioner had become surplus teacher, for the reasons enumerated in the order dated 1/4/1988 issued by the respondent nos. 1 and 2, then also his retrenchment could not be considered as legal one. Rule 26 of the Maharashtra Employees of Private Schools Rules, 1981 ( For short, ‘ M.E.P.S. Rules ’ ) provides for the procedure which is to be followed while effecting retrenchment on account of the employees becoming surplus. Sub Rule (2) of Rule 26 clearly shows that while effecting such retrenchment, three (3) conditions are required to be followed. The first condition is that the principle of seniority shall be observed while effecting such retrenchment. Second is that prior approval of the Education Officer in the case of Primary and Secondary Schools or, of the Deputy Director in the case of High Secondary Schools and Junior Colleges of Education shall be obtained by the management. No retrenchment can be effected without obtaining prior approval of the competent authority. Third condition is that such employee shall be served with three ( 3 ) months prior notice. The petitioner could not have been retrenched just because the respondent nos. 1 and 2 did not require his services any more. The accommodation of the surplus staff is contemplated 9 under sub Rule (2) (iii) of Rule 27 of the M.E.P.S. Rules. The petitioner could not have been asked to hand over charge of the post without following the due procedure. More over, he was not served with three (3) month’s notice as contemplated under Rule 26 (1). He had worked as a permanent employee for large number of years. The learned Presiding Officer of the School Tribunal utterly failed to notice the fact that Rule 26 of the M.E.P.S. Rule, 1981 was flagrantly breached by the respondent nos. 1 and 2. The Appeal could not be dismissed due to the so called technical flaw that it was not within limitation in as much as the petitioner demonstrated that he had been actually driven out of the school w.e.f. 18/5/1988 and prior to that he had continued to work notwithstanding the order directing him to hand over the charge. 13. The record purports to show that the petitioner had become ‘ persona non grata ’. The management did not want to tolerate him any more. There was no easy way to show him the exit and, therefore, the so called relieving order was rendered. It is totally bad in law in view of the legal position which is explicit from Rules 26 and 27 of the M.E.P.S. Rules. Under these circumstances, the learned Presiding Officer of the School Tribunal failed to duly consider the nature of the otherwise termination which was verbal and effected subsequent to the order dated 1/4/1988. It is also over looked that the petitioner had replied to the communication on 8/4/1988 whereby he had denied all 10 the charges levelled against him. Having regard to all these aspects, it is explicit that the petitioner was terminated otherwise than required under the law. The Appeal could not be dismissed on the ground of so called bar of limitation. The impugned Judgment and order of the School Tribunal is arbitrary, perverse and unsustainable. It need not be stated that such kind of orders embolden and nurture arbitrariness of the persons in the power who are supposed to fairly manage the charitable or educational Institution, as the case may be, and, therefore, it is required that the Tribunals shall carefully render such orders with objectivity and having regard to justice oriented approach. 14. In the result, the petition is allowed. The impugned order is set aside. The petitioner has crossed age of superannuation and, therefore, will be entitled to receive the arrears of pay and allowances from the date of alleged oral termination i.e. 18/5/1988 till he reached the age of superannuation along with all the consequential benefits, including the increments, retirement benefits, etc. If the respondent nos. 1 and 2 with concrete evidence will be able to prove that the petitioner was gainfully employeed elsewhere during the intervening period, the payments received by him will be deductible from the arrears, which may be worked out during course of execution only if appropriate evidence is adduced and more over within short span of period. The petitioner will be entitled to receive costs of this petition which is quantified at Rs. 10,000/- (Rupees Ten Thousand only) from 11 the respondent nos. 1 and 2. Rule is accordingly made absolute. [ V.R.KINGAONKAR ] JUDGE knp/WP 2073.91