1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.5977 of 1997 Mrs.Supriya Suryakant Sirsat Petitioner Vs. Smt.rekha Vijay Kumar Murgord and ors. Respondents Mr.Sudhir Prabhu for petitioner. Mr.G.J.Sabnis for resp.nos.1 and 2. CORAM: B.H.MARLAPALLE, J. January 25, 2008 ORAL JUDGMENT: 1. The petitioner-teacher is aggrieved by the judgment and order dated 4/12/1996 passed by the School Tribunal at Kolhapur in her Appeal No.33 of 1992. The said appeal was partly allowed and she was directed to be reinstated in service. Her absence from 17/10/1992 was directed to be treated without pay. She is aggrieved by the later part of the order i.e. loss of backwages. 2. It was the petitioner’s case that she was on medical leave from 8/10/1992 for eight days. However, when she went to report for duty on 17/10/92, she was not allowed to do so and thereafter 2 Diwali vacation started. On 11/11/1992 after Diwali vacation when she went to report for duty, she was not allowed to resume. Hence she filed the appeal before the School Tribunal on or about 28/11/1992 contending that she was orally terminated from service. She had also pointed out that she had put in about 16 years of service as an Assistant Teacher in the primary section. She also referred to the show cause notice dated 7/10/92 and the order passed on the same date punishing her by stoppage of two annual increments. 3. The management filed its written statement and pointed out that there was no case of termination and on the contrary from 17/10/1992 onwards the appellant remained absent. She was issued with reminders calling upon her to report to duty and though such reminders were received by her, she did not bother to report to duty and, therefore, the appeal was required to be dismissed. The School Tribunal, after hearing both the parties recording a finding that even if the teacher had not reported for duty, the management was required to initiate appropriation disciplinary action and, therefore, the alleged termination under oral orders could not be sustained. 3 Consequently the appellant was directed to be reinstated by denying the benefit of backwages from 17/10/92. 4. The impugned order is, therefore, required to be decided only to the extent of denial of backwages. The School Tribunal has referred to the correspondence between the parties and more particularly the letter dated 19/10/92 and the reminders dated 12/11/92 as well as 23/11/92 which were sought to be served on the appellant - petitioner by sending a messenger. The School Tribunal also referred to the letters addressed to the petitioner by the Chairman on 17/11/92, 25/4/93 and 10/5/93. As per the School Tribunal these letters were a clear testimony to the fact that it was the appellant who did not respond to the show cause notices and, therefore, she was denied the benefit of payment of backwages. 5. The learned counsel for the petitioner submitted that these letters referred by the Tribunal and alleged to have been issued by the management were subsequently created after the appeal was filed and they ought not to have been relied upon by the 4 School Tribunal. There is no doubt that the management had filed its written statement, though belatedly, on 22/2/94 and a copy of the same was served on the petitioner through her representative who appeared before the School Tribunal. In any case the receipt of the written statement is not disputed and in the written statement after referring to the correspondence as relied upon by the School Tribunal, it was clearly pointed out that the management had not taken any steps either to stop the petitioner from reporting for duty or to remove her from service. Once such a written statement was filed, in ordinary course the teacher could have submitted an application before the Tribunal or addressed to the management informing them that she was reporting for duty immediately thereafter. No such response obviously came from the appellant - teacher till the appeal was decided on 4/12/96 and consequently she lost her salary for about four years. It was possible for the appellant before she moved the School Tribunal to send a notice by registered post A.D. either to the Head Mistress or to the Chairman of the Society informing him that she was illegally stopped from reporting for duty and that itself amounted to termination of service. The petitioner 5 has brought on record once such letter dated 12/11/92 but at the same time there is no indication that it was sent by registered post A.D. or sought to be served in the presence of some witnesses. At the footnote there is a handwritten endorsement which says that when the letter was addressed in person, it was refused to be accepted and, therefore, it was sent by registered post. However, there is no proof of such postal transmission. There is another letter dated 21/6/93 addressed to the Chairman and it suffers from the same deficiencies. 6. The learned counsel for the petitioner then submitted that the denial of payment of backwages should not be treated as break in service and if it is clarified that the impugned order maintains continuity in service, the petitioner would be benefited for the pensionary benefits. In fact the Tribunal has clarified the said issue. But there is no harm in stating so even in this order. 7. Hence this petition fails and the same is hereby dismissed. Rule is discharged with no order as to costs. 6 8. It is made clear that the denial of backwages will not deny to the petitioner the continuity in service and the period of denial of backwages from 17/10/92 till she reported for duty shall not be treated as break in service. Her pay, if not fixed accordingly, shall be refixed by taking into consideration the continuity in service from 17/10/92 and this shall be done within two months from today. (B.H.MARL