1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2705 OF 2008 Mahatma Gandhi Vidyamandir and another ..Petitioners. Vs. Barku Rama Jadhav and another ..Respondents. ..... Mr. R.G. Ketkar i/b Mr. Rajdeep S. Khadapkar for the Petitioners. Ms. Jai V. Mhaskar with Mr. Nitin Mulye for Respondent No.1. .... WITH WRIT PETITION NO.2649 OF 2008 Barku Rama Jadhav .. Petitioner. Vs. Mahatma Gandhi Vidya Mandir and others ..Respondents. .... Ms. Jai V. Mhaskar with Mr. Nitin Mulye for the Petitioner. Mr. R.G. Ketkar i/b Mr. Rajdeep S. Khadapkar for Respondent No.1. ... CORAM: DR. D.Y. CHANDRACHUD, J. 17th April, 2008. P.C. : 1. This Petition under Articles 226 and 227 of the Constitution is directed against the judgment and order of the Presiding Officer of the School Tribunal by which the termination of the services of the First Respondent was set aside and an order of 2 reinstatement was passed with 50% back wages. The First Respondent was employed as an Assistant Teacher from 11th July, 2000. Before the Court there is no dispute about the factual position that the initial appointment was on probation for a period of two years. Section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 postulates in sub section (2) that on the completion of the probationary period of two years the employee would be deemed to be confirmed. There is no dispute before this Court about the factual position that the First Respondent was confirmed in service upon satisfactory completion of his period of probation. The First Respondent moved the School Tribunal with the plea that on 22nd January, 2005 his services were terminated by an oral order of termination. The defence of the management was that the services of the First Respondent were terminated on 30th April, 2002 and if that be so, the disengagement from service was brought into effect before the completion of the probationary period. 2. While assessing the contention of the management the School Tribunal has noted that the First Respondent had produced copies of the muster register which showed that he was in service 3 between April and December 2004 that is to say immediately prior to the date of termination. The management had produced a copy of the muster register but the Tribunal declined to accept the authenticity of the documents since neither the name of the school nor the stamp appeared thereon and the muster was not certified by a competent authority. 3. The issue which falls for determination is as to whether the interference of this Court is warranted in the extra ordinary and supervisory jurisdiction. With the assistance of the learned counsel this Court had the benefit of perusing the service record. The material before the Court demonstrates firstly that even after the date on which according to the management the First Respondent was terminated, the employee was as a matter of fact reflected to be in the service of the management. Among the documents on the record are (i) a letter dated 30th December, 2002 of the Petitioner to the Deputy Education Officer certifying that the First Respondent, who is a Scheduled Caste employee and had joined service on 19th August, 2000 was in service until the date of the letter; (ii) a letter dated 4th December, 2003 of the Education Officer to the Headmaster reflecting the continuance of the Petitioner and 4 (iii) a letter dated 6th September, 2004 of the Education Officer which specifically refers to the engagement of the First Respondent on a workload of 8 hours. 4. Counsel appearing for the First Respondent has also drawn the attention of the Court to the averments contained in paragraph XIII of the Petition in which the workload that was assigned to the First Respondent during the academic years 2000- 01 to 2004-05 has been adverted to. The chart which forms part of the Petition is to the following effect : Academic Year Work Load in Hours 2000-01 32 2001-02 32 2002-03 32 2003-04 16 2004-05 8 2005-06 Nil 5. Counsel appearing for the Petitioner submits that the averment in paragraph XIII is a submission in the alternative. Even if that be so, the factual material which is disclosed in paragraph XIII admittedly shows the presence of the First Respondent as a teacher to whom workload was being assigned even during the 5 academic year 2004-05. The only logical inference that can be drawn is that the teacher continued to be in service even after the alleged termination on 30th April, 2002. The contention of the management therefore that there was an act of termination on 30th April, 2002 was belied by factual material to the contrary. 6. It is then contended that there has been a reduction in the workload which has justified the dispensation of the services of the First Respondent. Rule 26 of the the Maharashtra Employees of Private Schools Rules 1981 contemplates that a permanent employee may be retrenched from service with three months' notice inter alia on account of a reduction in the establishment due to reduction in the number of classes or divisions, or a fall in the number of pupils. Before retrenchment is, however, carried out under sub rule (1) certain conditions which have been stipulated in sub rule (2) have to be satisfied. Sub rule (2) of Rule 26 reads thus: “26(2) The retrenchment from service under sub-rule (1) shall be subject to the following conditions, namely : (i) The principle of seniority shall ordinarily be observed; (ii) Prior approval of the Education Officer in the 6 case of Primary and Secondary Schools or, of the Deputy Director in the case of Higher Secondary Schools and Junior Colleges of Education shall be obtained by the Management in each case of retrenchment including such cases in which the principle of seniority as proposed to be departed from and a senior member of the staff is proposed to be retrenched when a junior member should have been retrenched, stating the special reasons therefor; (iii) The employees from aided schools, whose services are proposed to be retrenched shall be absorbed by the Education Officer in the case of Primary and Secondary Schools or by the Deputy Director in the case of Higher Secondary Schools and Junior Colleges of Education. The order of absorption of such employees shall be issued by registered post acknowledgment due letter and till they are absorbed the management shall not be permitted to effect retrenchment on account of any reasons mentioned in sub-rule (1).” Clause (ii) of sub rule (2) shows that before retrenchment is effected, prior approval has to be taken of the Education Officer or, as the case may be, the Deputy Director of Education. Under clause (iii) of sub rule (2) an employee whose services are proposed to be retrenched has to be absorbed in an alternative establishment and until his services are so absorbed the management shall not be permitted to retrench on account of the reasons mentioned in sub rule (1). In the present case, there has been a clear and flagrant breach of the provisions contained in the 7 rules which have statutory force and effect. In these circumstances, the order of the School Tribunal granting 50% backwages cannot be faulted. The School Tribunal has taking an overall view of the circumstances granted reinstatement only with 50% back wages having regard to the fact that there was a reduction in the workload. The ends of justice would be served if the denial of 50% backwages is sustained. A cross petition (Writ Petition 2649 of 2008) has been filed by the employee against the denial of 50% backwages and in regard to the grant of 50% backwages only from the date of the filing of the appeal. The exercise of the discretion in the facts of this case by the School Tribunal in granting backwages restricted to 50% and from the date of the filing of the appeal would not fall for interference in the exercise of the extra ordinary jurisdiction under Articles 226 and 227. Both the Petitions shall accordingly stand dismissed. 7. The First Respondent shall, however, be entitled to the arrears of salary if any that are payable for the period during which he had actually worked prior to the termination of service. 8. This order shall not preclude the management from 8 taking recourse to the provisions of Rule 26 of the Maharashtra Employees of Private Schools Rules 1981 in applying for permission to effect retrenchment in accordance with law. Compliance with the aforesaid directions shall be effected within a period of one month from today. *****