WP/607/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.607 OF 2010 Vasant Jaggannath Pawar ..Petitioner V/s. The Secretary, Vidya Vikas Education Society, Vikhroli, Mumbai & Ors. ..Respondents Mr. R.M. Kolge for the Petitioner. Mr. M.L. Phansekar for Respondent Nos. 1 and 2. CORAM : SMT. NISHITA MHATRE, J. DATE : 27 TH AUGUST, 2010. P.C. : 1. The Writ Petition challenges the order dated 16th October, 2009 passed by the School Tribunal, Mumbai in M.A. No. Mum/16/09. The prayers made in the Writ Petition are as follows : “(a).Rule be issued; (b). Record and proceedings be called for; WP/607/2010 2 (c). By suitable writ order or direction of this Hon’ble Court be pleased to quash and set aside the order dt. 16/10/09 passed by the Presiding Officer, School Tribunal in M.A. No.16/09 in appeal before them and to direct Respondent to pay salary dues since from 2001 to 2005 for years amounted to Rs. 2,36,291/- with interest at the rate of 12% p.a. and Petition be allowed accordingly; (d). by suitable order direction of this Hon’ble Court be pleased to direct the respondent Nos.2 and 3 to consider the proposal dt. 3/11/04, 26/4/05 and the latest proposal dt. 5/1/09 issued by the respondent No.2 to the respondent No.3; (e). Cost be awarded; (f). Any other order in the interest of justice may kindly be passed.” 2. The learned Advocate appearing for the petitioner states that he would be satisfied if the prayer for payment of salary from the years 2001 to 2005 is granted and that the petitioner is not WP/607/2010 3 interested in reinstatement. The learned Advocate has also categorically stated that the petitioner had voluntarily abandoned his services and he has no quarrel with the findings of the School Tribunal that the petitioner had not been terminated from service but that he himself had voluntarily abandoned or discontinued his services with the Management of the respondent-School. However, according to the learned Advocate, the petitioner is entitled to relief under Section 11(2)(c) as well as under Section 11(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, (for short “the MEPS Act”). 3. The entire argument of the learned Advocate for the petitioner is fallacious. An Appeal under Section 9 of the MEPS Act is maintainable only when a person, who is dismissed or removed or whose WP/607/2010 4 services are otherwise terminated or who is reduced in rank by an order passed by the Management, challenges the order. An Appeal is also maintainable when an employee is superseded by the Management while making an appointment to any post by promotion. 4. In the present case, admittedly, there is no order at all passed by the Management of the respondent-School either dismissing or removing the petitioner from service, nor is there any evidence to the effect that his services were otherwise terminated. Indeed, the petitioner concedes that he had voluntarily abandoned his services in September, 2004 and filed the Appeal in 2009. In these circumstances, the Appeal itself was not maintainable and the School Tribunal has rightly rejected the application for condoning the delay as the Appeal was filed after an inordinate delay. WP/607/2010 5 Even assuming the delay had been condoned, the appeal itself is misconceived. 5. The reliance placed on Section 11 of the MEPS Act is also without merit. Section 11 of the MEPS Act stipulates the powers of the Tribunal to give appropriate reliefs and directions. This Section must be read as a whole and not in parts, as the learned Advocate for the petitioner has attempted to do. Clause (c) of sub-section (2) of Section 11 of the MEPS Act cannot be read in isolation and there are provisions of Section 2 which read as follows : “11. (2) Where the Tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law (including any rules made under this Act), WP/607/2010 6 contract or conditions of service for the time being in force or was otherwise illegal or improper, the Tribunal may set aside the order of the Management, partially or wholly, and direct the Management; (a) .............................. (b) .............................. (c) to give arrears of emoluments to the employee for such period as it may specify; (d) .............................. (e) .............................. (f) ..............................” 6. Thus, it is apparent from a bare perusal of Section 11(2) of the MEPS Act that the Tribunal is empowered to grant the relief specified therein, provided it decides that the order of dismissal, removal or otherwise termination or reduction in rank impugned in any Appeal was in contravention of any law including the MEPS Act & Rules framed thereunder. WP/607/2010 7 7. In the present case, when the petitioner himself admits that he voluntarily abandoned his services in the year 2004, the question of granting him arrears of emoluments does not arise as the Tribunal is not empowered to grant such relief, unless it concludes that there is an illegal termination of service. 8. The Writ Petition is rejected.