- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.717 OF 2007 APPEAL NO.717 OF 2007 APPEAL NO.717 OF 2007 IN IN IN WRIT PETITION NO.1494 OF 2007 WRIT PETITION NO.1494 OF 2007 WRIT PETITION NO.1494 OF 2007 1. Hindi Vidya Bhavan, ) a Public Charitable Trust, ) Registered under the provisions ) of the Bombay Public Trusts Act,) 1950, As well as under the ) Societies Registration Act,1860 ) and situate at 79, Marine Drive,) Mumbai - 400 020. ) 2. Mrs.C.R.Pathak, ) Principal, Hindi Vidya Bhavan ) School, now known as HVB Academy,) situate at 79, Marine Drive, ) Mumbai - 400 020. ) 3. Mr.V.O.Somani, ) Hon.Secretary, Hindi Vidya Bhavan, ) now known as HVB Academy, ) situate at 79, Marine Drive, ) Mumbai - 400 020. ).. Appellants Versus 1. Presiding Officer, ) School Tribunal, Mumbai Region, ) Mumbai. ) 2. Education Inspector, ) Brihanmumbai, South Zone, ) Municipal School Building, ) Topiwala Lane, Grant Road (E), ) Mumbai - 400 007. ) 3. Ramprakash Badlu Mandar, ) C/o.Lalitkumar Singh, ) Nehru Nagar Zopadpatti, ) Room No.45, Aruna Chawl, ) - 2 - Vile Parle (W), Mumbai-400 055. ) 4. Mithila Azad Security Force, ) Singh House, Pasupati Dube ) Compound, Durga Mandir Road X, ) Gaondevi Road, Kajupada Poiser, ) Kandivli (East), Mumbai 400 101.).. Respondents -- Shri Rafiq Dada, Senior Counsel, with J.P.Sen and Akshay Patil, Advocates, i/by Federal & Rashmikant for the Appellants. Shri Milind More, AGP for the Respondent No.2. Shri Ajit Karwande, Advocate for the Respondent No.3. Shri Kiran Bapat, Advocate, i/by Kartikeya & Associates for the Respondent No.4. -- WITH WITH WITH APPEAL NO.718 OF 2007 APPEAL NO.718 OF 2007 APPEAL NO.718 OF 2007 IN IN IN WRIT PETITION NO.1495 OF 2007 WRIT PETITION NO.1495 OF 2007 WRIT PETITION NO.1495 OF 2007 1. Hindi Vidya Bhavan, ) a Public Charitable Trust, ) Registered under the provisions ) of the Bombay Public Trusts Act,) 1950, As well as under the ) Societies Registration Act,1860 ) and situate at 79, Marine Drive,) Mumbai - 400 020. ) 2. Mrs.C.R.Pathak, ) Principal, Hindi Vidya Bhavan ) School, now known as HVB Academy,) situate at 79, Marine Drive, ) Mumbai - 400 020. ) 3. Mr.V.O.Somani, ) Hon.Secretary, Hindi Vidya Bhavan, ) - 3 - now known as HVB Academy, ) situate at 79, Marine Drive, ) Mumbai - 400 020. ).. Appellants Versus 1. Presiding Officer, ) School Tribunal, Mumbai Region, ) Mumbai. ) 2. Education Inspector, ) Brihanmumbai, South Zone, ) Municipal School Building, ) Topiwala Lane, Grant Road (E), ) Mumbai - 400 007. ) 3. Mr.Parsharam Gopinath Gurao, ) Room No.5, Saidham Nivas, ) Saroj Pada, Vira Desai Road, ) Andheri (West), ) Mumbai - 400 058. ) 4. Mithila Azad Security Force, ) Singh House, Pasupati Dube ) Compound, Durga Mandir Road X, ) Gaondevi Road, Kajupada Poiser, ) Kandivli (East), Mumbai 400 101.).. Respondents -- Shri Rafiq Dada, Senior Counsel, with J.P.Sen and Akshay Patil, Advocates, i/by Federal & Rashmikant for the Appellants. Shri Milind More, AGP for the Respondent No.2. Shri Ajit Karwande, Advocate for the Respondent No.3. Shri Kiran Bapat, Advocate, i/by Kartikeya & Associates for the Respondent No.4. -- WITH WITH WITH APPEAL NO.719 OF 2007 APPEAL NO.719 OF 2007 APPEAL NO.719 OF 2007 IN IN IN - 4 - WRIT PETITION NO.1496 OF 2007 WRIT PETITION NO.1496 OF 2007 WRIT PETITION NO.1496 OF 2007 1. Hindi Vidya Bhavan, ) a Public Charitable Trust, ) Registered under the provisions ) of the Bombay Public Trusts Act,) 1950, As well as under the ) Societies Registration Act,1860 ) and situate at 79, Marine Drive,) Mumbai - 400 020. ) 2. Mrs.C.R.Pathak, ) Principal, Hindi Vidya Bhavan ) School, now known as HVB Academy,) situate at 79, Marine Drive, ) Mumbai - 400 020. ) 3. Mr.V.O.Somani, ) Hon.Secretary, Hindi Vidya Bhavan, ) now known as HVB Academy, ) situate at 79, Marine Drive, ) Mumbai - 400 020. ).. Appellants Versus 1. Presiding Officer, ) School Tribunal, Mumbai Region, ) Mumbai. ) 2. Education Inspector, ) Brihanmumbai, South Zone, ) Municipal School Building, ) Topiwala Lane, Grant Road (E), ) Mumbai - 400 007. ) 3. Chalke Arvind Yashwant, ) 308, Janesh Co-op.Housing Society,) Vaitywadi Ramchandra Nagar, ) Thane (West), ) 4. Mithila Azad Security Force, ) Singh House, Pasupati Dube ) Compound, Durga Mandir Road X, ) Gaondevi Road, Kajupada Poiser, ) Kandivli (East), Mumbai 400 101.).. Respondents -- - 5 - Shri Rafiq Dada, Senior Counsel, with J.P.Sen and Akshay Patil, Advocates, i/by Federal & Rashmikant for the Appellants. Shri Milind More, AGP for the Respondent No.2. Shri Ajit Karwande, Advocate for the Respondent No.3. Shri Kiran Bapat, Advocate, i/by Kartikeya & Associates for the Respondent No.4. -- WITH WITH WITH APPEAL NO.720 OF 2007 APPEAL NO.720 OF 2007 APPEAL NO.720 OF 2007 IN IN IN WRIT PETITION NO.1497 OF 2007 WRIT PETITION NO.1497 OF 2007 WRIT PETITION NO.1497 OF 2007 1. Hindi Vidya Bhavan, ) a Public Charitable Trust, ) Registered under the provisions ) of the Bombay Public Trusts Act,) 1950, As well as under the ) Societies Registration Act,1860 ) and situate at 79, Marine Drive,) Mumbai - 400 020. ) 2. Mrs.C.R.Pathak, ) Principal, Hindi Vidya Bhavan ) School, now known as HVB Academy,) situate at 79, Marine Drive, ) Mumbai - 400 020. ) 3. Mr.V.O.Somani, ) Hon.Secretary, Hindi Vidya Bhavan, ) now known as HVB Academy, ) situate at 79, Marine Drive, ) Mumbai - 400 020. ).. Appellants Versus - 6 - 1. Presiding Officer, ) School Tribunal, Mumbai Region, ) Mumbai. ) 2. Education Inspector, ) Brihanmumbai, South Zone, ) Municipal School Building, ) Topiwala Lane, Grant Road (E), ) Mumbai - 400 007. ) 3. Meera Sony Dhadave, ) Mahatma Gandhi Samiti Vasahat, ) Jerbai Wadi, ) Mumbai - 400 012. ) 4. Mithila Azad Security Force, ) Singh House, Pasupati Dube ) Compound, Durga Mandir Road X, ) Gaondevi Road, Kajupada Poiser, ) Kandivli (East), Mumbai 400 101.).. Respondents -- Shri Rafiq Dada, Senior Counsel, with J.P.Sen and Akshay Patil, Advocates, i/by Federal & Rashmikant for the Appellants. Shri Milind More, AGP for the Respondent No.2. Shri Ajit Karwande, Advocate for the Respondent No.3. Shri Kiran Bapat, Advocate, i/by Kartikeya & Associates for the Respondent No.4. -- WITH WITH WITH APPEAL NO.721 OF 2007 APPEAL NO.721 OF 2007 APPEAL NO.721 OF 2007 IN IN IN WRIT PETITION NO.1498 OF 2007 WRIT PETITION NO.1498 OF 2007 WRIT PETITION NO.1498 OF 2007 1. Hindi Vidya Bhavan, ) a Public Charitable Trust, ) Registered under the provisions ) of the Bombay Public Trusts Act,) - 7 - 1950, As well as under the ) Societies Registration Act,1860 ) and situate at 79, Marine Drive,) Mumbai - 400 020. ) 2. Mrs.C.R.Pathak, ) Principal, Hindi Vidya Bhavan ) School, now known as HVB Academy,) situate at 79, Marine Drive, ) Mumbai - 400 020. ) 3. Mr.V.O.Somani, ) Hon.Secretary, Hindi Vidya Bhavan, ) now known as HVB Academy, ) situate at 79, Marine Drive, ) Mumbai - 400 020. ).. Appellants Versus 1. Presiding Officer, ) School Tribunal, Mumbai Region, ) Mumbai. ) 2. Education Inspector, ) Brihanmumbai, South Zone, ) Municipal School Building, ) Topiwala Lane, Grant Road (E), ) Mumbai - 400 007. ) 3. Pawaskar Manohar Vithoba, ) Gen.Chawl, Shankarwadi, ) Near Apna Ghar Society, ) Jogeshwari (East), ) Mumbai - 400 060. ) 4. Mithila Azad Security Force, ) Singh House, Pasupati Dube ) Compound, Durga Mandir Road X, ) Gaondevi Road, Kajupada Poiser, ) Kandivli (East), Mumbai 400 101.).. Respondents -- Shri Rafiq Dada, Senior Counsel, with J.P.Sen and Akshay Patil, Advocates, i/by Federal & Rashmikant for the Appellants. - 8 - Shri Milind More, AGP for the Respondent No.2. Shri Ajit Karwande, Advocate for the Respondent No.3. Shri Kiran Bapat, Advocate, i/by Kartikeya & Associates for the Respondent No.4. -- WITH WITH WITH APPEAL NO.722 OF 2007 APPEAL NO.722 OF 2007 APPEAL NO.722 OF 2007 IN IN IN WRIT PETITION NO.1499 OF 2007 WRIT PETITION NO.1499 OF 2007 WRIT PETITION NO.1499 OF 2007 1. Hindi Vidya Bhavan, ) a Public Charitable Trust, ) Registered under the provisions ) of the Bombay Public Trusts Act,) 1950, As well as under the ) Societies Registration Act,1860 ) and situate at 79, Marine Drive,) Mumbai - 400 020. ) 2. Mrs.C.R.Pathak, ) Principal, Hindi Vidya Bhavan ) School, now known as HVB Academy,) situate at 79, Marine Drive, ) Mumbai - 400 020. ) 3. Mr.V.O.Somani, ) Hon.Secretary, Hindi Vidya Bhavan, ) now known as HVB Academy, ) situate at 79, Marine Drive, ) Mumbai - 400 020. ).. Appellants Versus 1. Presiding Officer, ) School Tribunal, Mumbai Region, ) Mumbai. ) 2. Education Inspector, ) - 9 - Brihanmumbai, South Zone, ) Municipal School Building, ) Topiwala Lane, Grant Road (E), ) Mumbai - 400 007. ) 3. Maya Dattaraya Naik, ) Dr.Baba Saheb Ambedkar Nagar, ) Room No.21, Sadh T.L.Wanwadi ) Marg, Cuffe Parade, Colaba, ) Mumbai. ) 4. Mithila Azad Security Force, ) Singh House, Pasupati Dube ) Compound, Durga Mandir Road X, ) Gaondevi Road, Kajupada Poiser, ) Kandivli (East), Mumbai 400 101.).. Respondents -- Shri Rafiq Dada, Senior Counsel, with J.P.Sen and Akshay Patil, Advocates, i/by Federal & Rashmikant for the Appellants. Shri Milind More, AGP for the Respondent No.2. Shri Ajit Karwande, Advocate for the Respondent No.3. Shri Kiran Bapat, Advocate, i/by Kartikeya & Associates for the Respondent No.4. -- WITH WITH WITH APPEAL NO.723 OF 2007 APPEAL NO.723 OF 2007 APPEAL NO.723 OF 2007 IN IN IN WRIT PETITION NO.1500 OF 2007 WRIT PETITION NO.1500 OF 2007 WRIT PETITION NO.1500 OF 2007 1. Hindi Vidya Bhavan, ) a Public Charitable Trust, ) Registered under the provisions ) of the Bombay Public Trusts Act,) 1950, As well as under the ) Societies Registration Act,1860 ) and situate at 79, Marine Drive,) Mumbai - 400 020. ) 2. Mrs.C.R.Pathak, ) Principal, Hindi Vidya Bhavan, ) - 10 - now known as HVB Academy, ) situate at 79, Marine Drive, ) Mumbai - 400 020. ) 3. Mr.V.O.Somani, ) Hon.Secretary, Hindi Vidya Bhavan, ) now known as HVB Academy, ) situate at 79, Marine Drive, ) Mumbai - 400 020. ).. Appellants Versus 1. Presiding Officer, ) School Tribunal, Mumbai Region, ) Mumbai. ) 2. Education Inspector, ) Brihanmumbai, South Zone, ) Municipal School Building, ) Topiwala Lane, Grant Road (E), ) Mumbai - 400 007. ) 3. Gurao Anil Madhukar, ) Room no.104, Ganesh Niketan ) Ganatatrao Marg, Lower Parel, ) Mumbai 400 013. ) 4. Mithila Azad Security Force, ) Singh House, Pasupati Dube ) Compound, Durga Mandir Road X, ) Gaondevi Road, Kajupada Poiser, ) Kandivli (East), Mumbai 400 101.).. Respondents -- Shri Rafiq Dada, Senior Counsel, with J.P.Sen and Akshay Patil, Advocates, i/by Federal & Rashmikant for the Appellants. Shri Milind More, AGP for the Respondent No.2. Shri Ajit Karwande, Advocate for the Respondent No.3. Shri Kiran Bapat, Advocate, i/by Kartikeya & Associates for the Respondent No.4. -- - 11 - CORAM : SRI R.M.S.KHANDEPARKAR & SRI P.B.MAJMUDAR, JJ DATED : 11TH JUNE, 2008 ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) 1. Heard. Admit. By consent, heard forthwith. In all these appeals, S/Shri More, AGP for the Respondent No.2, Shri Karwande, Advocate for the Respondent No.3, Shri Bapat, Advocate for the Respondent No.4 waive service and the respondent no.1 is a formal party to the proceedings. 2. Since the common question of law and facts arise in all these appeals, they were heard together and are being disposed of by this common judgment. 3. All these appeals arise from a common judgment passed by the learned Single Judge on 28th September, 2007 in Writ Petition Nos.1494 of 2007, 1495 of 2007, 1496 of 2007, 1497 of 2007, 1498 of 2007, 1499 of 2007 and 1500 of 2007 which were filed by the appellants. By the impugned judgment, the petitions were partly allowed in relation to the claim of backwages while rejecting all other contentions raised in the matter. The petitioners were granted relief in the nature of - 12 - reduction in their liability to pay backwages to the extent of 50% from the date of filing of the appeals before the School Tribunal. 4. The School Tribunal by the order dated 2nd September, 2004 had held that the School Tribunal has jurisdiction to entertain and try the appeals filed by the respondents claiming to be the employees of the appellants and further by the judgment dated 30th April, 2007 allowed the appeals and held that the terminations orders issued against the respondents nos.3 were bad in law, and therefore, were set aside and further the appellants were directed to reinstate the said respondents in the posts in which they were employed on the date of termination of their services along with payment of full backwages. 5. The appellant No.1 is a public charitable trust and runs a school by the name "Hindi Vidya Bhavan", whereas the appellant Nos.2 and 3 are the Principal and the Secretary of the said school. The respondent No.1 is a School Tribunal. The respondent No.2 is the Education Inspector and the respondent no.3 in all these petitions are the persons who had been engaged for various works in the appellant school, and the respondent no.4 is the agency through - 13 - which the said respondents were engaged by the appellants. It is the contention of the appellants that the respondent no.3 were engaged on contract basis whereas it is the contention on behalf of the said respondents that they are the permanent employees of the appellant-school. The services of the said respondents were sought to be terminated by issuing respective orders referred to in the judgment passed by the School Tribunal. The action on the part of the appellants in terminating their services was sought to be challenged by filing the appeals before the School Tribunal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, for short "the said Act". 6. Before the School Tribunal, the appellants raised various objections including the one regarding the lack of jurisdiction to the Tribunal to entertain the appeals in the absence of employer-employee relationship between the parties within the meaning of the said expressions under the said Act and even to decide the issue of existence or absence of such relationship while contending that the jurisdiction of the School Tribunal depends upon undisputed or pre-established employer-employee relationship between the parties. The said contention was sought to be - 14 - rejected by the order dated 2nd September, 2004 and the Tribunal held that it had jurisdiction to entertain the appeals. The matter proceeded further and by the judgment dated 30th April, 2007 the Tribunal while setting aside the orders of termination of the services of the said respondents directed the reinstatement with full backwages as stated above. The appellants challenged the said orders before learned Single Judge of this Court by way of writ petitions. The said petitions came to be dismissed by the impugned orders, except for modification of the direction as regards the payment of backwages. Hence these appeals. 7. The impugned orders are sought to be assailed on the ground that the School Tribunal under the said Act lacks jurisdiction to entertain the appeal unless the appeal is filed by an employee within the meaning of the said expression under the said Act. Drawing our attention to the definition of the term "employee" under the said Act and the provision of Section 9 thereof, the learned Senior Counsel further submitted that the concerned respondents were not the employees of the appellant-School inasmuch as that they were not appointed by following the necessary procedure in terms of Section 5 of the said Act nor they were - 15 - appointed in any permanent vacancy in the said school. In view thereof, according to the appellants, the respective respondents cannot claim to be the employees under the said Act, and therefore, they could not have filed the appeals under the said provisions of law before the School Tribunal constituted under the said Act. Once the person approaching the School Tribunal lacks status of an employee under the said Act, it would be beyond jurisdiction of the School Tribunal to deal with the issue as to whether such a person can be held to be an employee and being entitled to prefer an appeal under Section 9 of the said Act, and in that regard, attention was sought to be drawn to the provisions of the Maharashtra Recognition of trade Unions & Prevention of Unfair Labour Practices Act, 1971, for short the "MRTU & PULP ACT", as also to the decision of the Apex Court in Cipla Ltd. v. Maharashtra Cipla Ltd. v. Maharashtra Cipla Ltd. v. Maharashtra General Kamgar Union & Ors., General Kamgar Union & Ors., General Kamgar Union & Ors., reported in (2001)3 SCC 101. The impugned orders are also sought to be challenged on the other grounds viz. that the Tribunal and the learned Single Judge failed to consider that the materials on record which apparently disclose that the appointments of the concerned respondents were purely on contract basis and not in consonance with Section 5 in a permanent vacancy and, - 16 - therefore, they have no right to continue to be in the employment of the appellant. Thirdly that the learned Single Judge as well as the Tribunal failed to consider that there was no material on record to disclose that there was any permanent vacancy available at the time the concerned respondents were engaged on contract basis or any time during the period they continued to be in the employment on contract basis, and therefore, there could not have been any claim for permanency on behalf of the said respondents, and fourthly that there was no case made out for grant of any backwages in the absence of necessary pleadings and the proof that the concerned respondents were not gainfully employed elsewhere during the relevant period. 8. The contention is sought to be refuted on behalf of the respondents while submitting that the School Tribunal will have an ample jurisdiction to decide the issue as to whether there exists employer-employee relationship between the parties before the School Tribunal proceeds with the matter. 9. Section 9 of the said Act undoubtedly provides that if an employee in a private school is either dismissed or removed from the services or whose - 17 - employment is otherwise terminated, can file an appeal against such order of termination of services to the School Tribunal. The provision specifically refers to the term "employee" who can prefer an appeal under Section 9 of the said Act. Section 2(7) of the said Act defines the expression "employee" to mean any member of the teaching and non-teaching staff of a recognised school. It is, therefore, apparent on the face of the said provision of law that a person who can approach the School Tribunal with a grievance regarding termination of services by the management of a school has necessarily to be an employee in a school. 10. The point which arises for consideration is that whether the School Tribunal, in an appeal under Section 9 of the said Act, can decide the issue as to whether the appellant is an employee within the meaning of the said expression under the said Act ? It is the contention on behalf of the appellants that the School Tribunal being constituted under the said Act to deal with specific issues as contemplated under the said Act and in relation to the dispute sought to be raised by those who are the employees within the meaning of the said expression under the said Act, existence of the jurisdictional fact which would - 18 - reveal employer-employee relationship between the parties is absolutely necessary in order to enable the School Tribunal to entertain the appeal under the said Act. Undoubtedly, the jurisdictional fact in that regard would be that the person approaching the Tribunal has necessarily to be an employee within the meaning of the said expression under the said Act. But whenever such a point arises before the Tribunal, can it be said that the School Tribunal constituted under the said Act will have no jurisdiction to deal with the said issue ? Can it be said that the jurisdiction of the School Tribunal under Section 9 of the said Act does not include power to decide the issue regarding the existence or absence of such relationship between the parties to the appeal ? 11. Prior to enactment of the said Act, the service conditions of employees working in private schools were determined by executive orders issued by the State Government from time to time. To provide adequate security and stability to their services, as also to lay down their duties and the code of conduct as also to provide about disciplinary matters of school employees as also to have a quasi-judicial machinery in the form of a Tribunal for making justice speedily available to such employees as also to render - 19 - them accountable and to ensure their contribution for improvement in the standard of education, that the said Act was enacted. The preamble of the said Act declares that :- "WHEREAS, it is expedient to regulate the recruitment and conditions of service of employees in certain private schools in the State, with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular, and the institution and the society in general, effectively and efficiently; AND WHEREAS, it is further expedient in the public interest to lay down the duties and functions of such employees with a view to ensuring that they become accountable to the Management and contribute their mite for improving the standard of education; AND WHEREAS, it is also necessary to make certain supplemental, incidental and consequential provisions; it is hereby enacted in the Twenty-eight year of the - 20 - Republic of India as follows:" Thus, the said Act has been enacted essentially to regulate the service conditions of the employees of private schools to which the said Act applies. The power to regulate the implies power to check and to have effective control over the subject sought to be regulated. 12. Section 3 of the said Act specifically provides that the provisions of the said Act would apply to all private schools in State of Maharashtra whether receiving any grant in-aid from the State Government or not. Undoubtedly, the minority schools are exempted from the applicability of the provisions of the said Act. The term "private school" has been defined under Section 2(20) of the said Act to mean a recognised school established or administered by a Management other than the Government or a local authority. The term "recognised" has been defined under Section 2(21) to mean recognised by the Director, the Divisional Board or the State Board, or by any officer authorised by him or by any of such Boards. The term "school" is defined under Section 2(24) to mean a primary school, secondary school, higher secondary school, junior college of education - 21 - or any other institution by whatever name called including, technical, vocational or art institution of part of any such school, college or institution, which imparts general, technical, vocational art or, as the case may be, special education or training in any faculty or discipline or subject below the degree level. The expression "management" in relation to the school is defined under Section 2(12) to mean in the case of a school administered by the State Government, the Department; in the case of a school administered by local authority