Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.792 of 1999 Shikshan Prasarak Mandal Tal. Tasgaon, Dist. Sangli. 2. The Head Master, Janata Vidyalaya, Tal.Tasgaon, Dist.Sangli ..Petitioners V/s. 1. Shri Uttam Hariba Bhandre 2. The Education Officer, Zilla Parishad, Sangli. 3. The Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur ..Respondents Mrs. Anita Agarwal, Advocate for the Petitioners Mr.S.S.Pakale, Advocate for Respondent No.1 Mr.A.P.Vanarase, AGP for Respondent No.2 CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 14th March, 2008 : 14th March, 2008 : 14th March, 2008 ORAL ORAL ORAL JUDGEMENT JUDGEMENT JUDGEMENT This Petition is directed against the Judgement and order dated 20-8-1998 rendered by the School Tribunal at Kolhapur thereby allowing Appeal No. 35/1997. The Respondent was ordered to be reinstated in service with Janata Vidyalaya as a Lab. Attendant and to pay him full backwages including allowances w.e.f. 26-11-1994 till he would be actually reinstated. While admitting 2 this Petition by the order dated 15-2-1999 the impugned order was stayed to the extent of payment of backwages on the condition that the Respondent No.1-appellant would be reinstated in service within two weeks. Mr.Pakale, the Learned Counsel for the Appellant states that he has been accordingly reinstated from 24-2-1999 and he is in service at present. Hence, the only issue that is required to be considered is the payment of backwages. 2. The appellant was appointed in the post of Peon by the present Petitioners w.e.f. 1-12-1977 and he came to be promoted to the post of Laboratory Attendant w.e.f. 20-11-1989. It appears that he had worked as a Laboratory Attendant for the S.S.C. examination held in March-April 1994 but he had not received his remuneration, therefore, he submitted a complaint to the S.S.C. Board, Kolhapur in that regard. Immediately on receipt of the said complaint, the Board by its letter dated 11-5-1994 had called upon the Head Master of Janata Vidyalaya, Bambavade to pay him the service charges which were included in the cheque amount of Rs. 101/- drawn in favour of the said Head Master. However, the appellant did not receive any such service charges and on the contrary the Head Master allegedly started harassing the appellant as he had filed a complaint with the S.S.C. Board. He was called upon to withdraw the 3 letter dated 11-5-1994. The Head Master was not alone but with the help of Shri Kumbhar - Clerk he obtained a forced resignation of the appellant from the post of "Laboratory Attendant" on 7-9-1994 and later the said letter was posted by Registered A.D. immediately on next day i.e. 8-9-1994. The appellant submitted his complaint to the S.S.C. Board as well as the Education Officer. In the meanwhile the resignation came to be accepted and the appellant was not allowed to enter. The Petitioner had withdrawn his complaint submitted to the S.S.C. Board on 6-9-1994 by again a forged letter of withdrawal of complaint. He approached the Education Officer again by his representation dated 29-11-1994 and to the Dy. Director of Education, Kolhapur by his letter dated 8-1-1997 as well as 4-2-1997. In the meanwhile he approached the Labour Court by filing the complaint of unfair labour practice and the same was dismissed as not maintainable on 7-6-1996. He approached the Industrial Court in Revision which was also dismissed on 18-2-1997 by granting liberty to the appellant to approach the School Tribunal and that is how Appeal No.35/1997 came to be filed belated. A separate application for condonation of delay was filed before the School Tribunal and delay was condoned. 3. The main issue before the Labour Court was whether the appellant had voluntarily submitted his resignation 4 or whether he was forced to submit his resignation on 8-9-1994 and consequently whether by accepting the said resignation, it was a case of otherwise termination of service w.e.f. 26-11-1994. The Respondent management before the School Tribunal had filed its written-statement and had opposed the complaint. It was contended that the appellant had voluntarily submitted his resignation, sent it by post and a fabricated plea was taken subsequently of forced resignation. Consequently, the management prayed for dismissal of the Appeal as not maintainable. 4. The Tribunal noted that the appellant had worked as a Peon for about 12 years and was subsequently promoted to the post of Laboratory Attendant and in the said post he worked for more than 5 years. An employee with about 17 years of service had no reason to submit his resignation and that too sent it by registered post, acknowledgement due when he was staying in the very said village. The appellant came from a poor financial background and he belongs to Scheduled caste category. The Appellant had placed before the School Tribunal the copies of the letters he had addressed to the Head Master, Secretary/President of Shikshan Prasarak Mandal, the school committee of Janata Vidyalaya and the Education Officer. On 6-9-1994 he addressed a letter to the Education Officer (Secondary) Zilla Parishad Sangli 5 and withdrew his complaints dated 28-4-94, 8-7-1994 and 27-7-1994. The alleged resignation is dated 8-9-1994 and it speaks of "resignation from the post of Laboratory Attendant". It conveys that the appellant had submitted his resignation from the post of Laboratory Attendant and he had decided to continue in the post of Peon. The management claims to have passed a resolution unanimously and accepted the alleged resignation letter and he was demoted to work as a Peon from 1-9-1994. He applied for leave on 19-9-1994, 24-9-1994, 27-9-1994, 6-10-1994. By his letter dated 11-10-1994 the Head Master informed the appellant that his resignation from the post of Laboratory Attendant dated 8-9-1994 was accepted and he was continued in the lower post of Peon from September 1994 and, therefore, he was called upon to write his designation as peon and was directed to submit a fresh application with necessary changes. On 28-9-1994 he submitted a letter to the Education Officer (Secondary) Zilla Parishad, Sangli regarding the harassment caused to him on the ground of his alleged resignation from the post of Laboratory Attendant. A copy of the said letter was also forwarded to the Dy. Director of Education, Kolhapur division at Kolhapur. The Education Officer by his letter dated 29-11-1994 addressed to the Head Master of Janata Vidyalaya referred to the complaint dated 28-11-1994 received from the appellant. He pointed out 6 that after enjoying the leave when the appellant resumed his duties on 26-11-1994, he was prevented from joining the duties and called for detail report before 2-12-1994. 5. The management contended that from 7-10-1994 the appellant remained absent and denied the allegation of otherwise termination on 26-11-1994. It was submitted that the appellant had voluntarily abandoned his service and,therefore, the appeal was not maintainable. On the point of backwages Mr. Kulkarni submitted that the appellant teacher was running a tailoring shop in the very same village and thus he was gainfully employed during the intervening period and on this count the appellant deserves to be denied the benefit of backwages. 6. I have perused the written-statement filed by the Petitioners before the School Tribunal and there is no averment that the appellant was running a tailoring shop and was gainfully employed while the appeal was pending before the School Tribunal. If such a pleading was incorporated in their written-statement, there was scope for the School Tribunal to verify the gainful employment of the appellant and also his monthly income. If such a plea of gainful employment is taken for the first time before this Court in the Writ Petition, I am afraid, the 7 same cannot be considered, more so when it is purely a question of fact which is required to be proved before the Tribunal. Even if the subject tailoring shop is located in the village, it cannot be definitely said that the appellant was running the same and by way of evidence the certificate issued by the village panchayat and placed on record cannot be relied upon per se. I, therefore, find that the Tribunal was justified in granting the benefit of backwages, however, in the instant case the benefit of backwages has been directed from 26-11-1994 and admittedly the appeal before the School Tribunal was filed on or about 6-3-1997. Complaint(ULP)No. 139/1994 was filed before the Labour Court and after its dismissal, Revision Application (ULP) No.256/1996 was dismissed on 18-2-1997 as the same was withdrawn. It would be, therefore, just and proper that the benefit of full backwages is granted to the appellant teacher from 1-3-1997 instead of 26-11-1994. 7. In the premises this petition is partly allowed. The order of reinstatement is hereby confirmed and on the issue of backwages it is directed that the appellant teacher shall be entitled for full backwages from 1-3-1997 till 24-2-1999, as if on duty. The arrears of backwages shall be paid to him as expeditiously as possible and in any case within one month from today. 8 The order passed by the School Tribunal regarding backwages stands accordingly modified. 8. Rule is made absolute in terms of the above directions with no order as to costs. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]