Shivshankar Sevabhavi Sanstha Jamathi Bk Through Its Secretary And Another v. Balaji Pralhad Jadhao And Another
Case Details
2025:BHC-AUG:12679 18-WP-5960-2022.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5960 OF 2022 WITH CIVIL APPLICATION NO. 15149 OF 2022 IN WP/5960/2022 WITH CIVIL APPLICATION NO. 4195 OF 2023 IN WP/5960/2022 Shivshankar Sevabhavi Sanstha Jamathi Bk Through Its Secretary And Another VERSUS Balaji Pralhad Jadhao And Another ... Mr. V. J. Dhage, Advocate for the Petitioners Mr. K. P. Rodge, Advocate for Respondent No. 1 Mr. S. N. Kendre, AGP for Respondent No. 2 *** CORAM : R. M. JOSHI, J DATE : APRIL 28, 2025 PER COURT : 1. At the outset, learned Counsel for Petitioner seeks amendment to the Petitions and documents annexed therewith to screen the name of minor/alleged victim wherever is appearing. 2. Leave granted. Amendment be carried out forthwith. 3. This Petition takes exception to the order dated 12.04.2022 passed by the School Tribunal, Latur in Appeal No. 32/2019 whereby the Respondent is directed to be reinstated in service with continuity Umesh PAGE 1 OF 9 18-WP-5960-2022.odt and full back wages with other consequential benefits since 14.07.2017. 4. The facts which led to the filing of this Petition can be narrated in brief as under: Petitioner is the Educational Institution duly registered under the Maharashtra Public Trusts Act. Respondent No. 1 came to be appointed on 05.12.2009 after following due procedure of law. Education Officer extended the approval to his appointment on 30.04.2012 against clear and vacant post on probation for a period of two years. In the year 2015-16, Petitioner No. 2 – School has received 20% grant from Government. 5. It is the case of the Petitioners that there was allegation against Respondent in respect of his behavior towards girl students and complaints were received to that effect. It is further claimed that show cause notice was issued to the Respondent No. 1 on 09.08.2017, which came to be replied by him by post. A further notice was issue on 23.11.2017. Petitioner alleges that Respondent No. 1 remained absent unauthorizedly but falsely claimed to have been terminated from service orally. Accordingly, he filed Umesh PAGE 2 OF 9 18-WP-5960-2022.odt Appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 before School Tribunal claiming that his services are terminated from 14.07.2017. Petitioner appeared before the School Tribunal by filing written statement and specifically claimed that services of the Respondent No. 1 are not terminated. The other facts including issuance of notice etc are placed on record before the Tribunal. Learned Tribunal after hearing both sides passed impugned order holding that there is otherwise termination of the Respondent No. 1 and he was directed to be reinstated in service with full back wages and continuity with consequential benefits. 6. Learned Counsel for Petitioners submits that Respondent No. 1 has adopted novel method of claiming oral termination to avoid any action against him. According to him, the Tribunal has committed error in not taking into consideration the correspondence exchanged between Petitioner and Respondent No. 1, which indicates that this is not case of otherwise termination. He drew attention of the Court to the Appeal memo filed before the Tribunal wherein according Umesh PAGE 3 OF 9 18-WP-5960-2022.odt to him it is specifically claimed that his services were terminated on 14.07.2017. He further drew attention of the Court to the correspondence on record which according to him indicates that till 13.10.2017 correspondence was exchanged between them and this fact indicates that there was no termination of services with effect from 14.07.2017. Attention of the Court is also drawn to the prayer clause in the Appeal memo before Tribunal wherein termination dated 14.07.2017 is sought to be set aside. It is his submission that considering the pleadings and the documentary evidence on record, Tribunal ought not to have held that there is oral termination and directed reinstatement with back wages. To support his submissions, he placed reliance on following judgments: Pepsu Road Transport Corporation vs. Rawel Singh, 2008 AIR SCW 2099, Satish Motors Ltd., Aurangabad vs. Syed Ashrafali Syed Maqsadali, 2017(1) Mh.L.J. 194 & Bharatiya Seva Acharya Education Society, Nagpur and Another vs. School Tribunal, Nagpur and others, 2014(2) Mh.L.J. 879. Without prejudice to his contention, it is his submission that grant of reinstatement by the Tribunal would not take away right of the Management to take Umesh PAGE 4 OF 9 18-WP-5960-2022.odt disciplinary action against Respondent No. 1. 7.
Legal Reasoning
Per contra, learned Counsel for Respondent No. 1 supported the impugned order by contending that the pleadings as a whole need to be considered and the pleading clearly indicate that services of the Respondent No. 1 were terminated on 14.07.2017 and in spite of communicating the same, since he was not reinstated, ultimately cause of action for filing of the Appeal accrued on 13.10.2017. It is his submission that if the Respondent No. 1 was remaining absent, still it was incumbent on the part of the Management to initiate enquiry against him and that in no circumstance oral termination is permissible. It is his submission that the Tribunal has taken into consideration the evidence on record and also the statement made by Respondent No. 1 on oath about he being not gainfully employed and, therefore, the order of reinstatement with back wages cannot be interfered with. 8. There is no dispute about the fact that the Respondent No. 1 was engaged in the services of the Petitioner/School by following due process of law and Umesh PAGE 5 OF 9 18-WP-5960-2022.odt his appointment had received approval from the Education Officer. Since there is a word against word, Respondent No. 1 claims oral termination and Petitioner refutes the same, the Court is required to taken into consideration overall attending circumstances in order to accept or reject the rival contentions. Here in this case the Respondent No. 1 has claimed termination of his services with effect from 14.07.2017 orally. Whereas the Petitioner claimed that Respondent No. 1 has absented himself from duty and that there is no termination. In this regard, it would be relevant to take into consideration the correspondence exchanged between the parties. The show cause notice dated 09.08.2017 issued to Respondent No. 1 indicates that allegation was made against him of not attending the duties. Similarly, grievance is made therein about complaint being made by Respondent No. 1 against the School to the Authorities. However, admittedly show cause notice dated 09.08.2017 was duly replied by Respondent No. 1. This reply was however not accepted by the Petitioner/Management. Another show cause notice, therefore, was issued on 23.11.2017 making similar allegations and also stating therein that if Umesh PAGE 6 OF 9 18-WP-5960-2022.odt notice is not satisfactorly replied, he should be terminated from services. Thus, even at that stage Management had contemplated termination of his services for non reply to the show cause notice. 9. There is other documentary evidence on record which indicates that there were complaints against Respondent No.1. However, no enquiry has been conducted against him and hence, this Court is unable to consider the veracity of said complaints for want of proof thereof, at this stage. Though there is communication appearing on record from Management seeking permission from Education Officer for suspension of the Respondent No. 1, in fact no suspension order has been issued against him. The communications placed on record indicate that all throughout it was a specific contention of Respondent No. 1 that he would not have been allowed to join duties. Needless to say that it is not open for the Management to terminate the services of the employee except by following due process of law. Here in this case there were allegations against Respondent No. 1 on the basis of complaints received from the girl students so also absenteeism etc, an Umesh PAGE 7 OF 9 18-WP-5960-2022.odt enquiry was must before termination. There is no enquiry conducted nor even order of suspension came to be issued against him. 10. Learned Tribunal has taken into consideration the entire evidence on record and has held that there is oral termination of services of Respondent No.1. On the basis of the material on record the view taken by the Tribunal is plausible one. In exercise of writ jurisdiction, it is not open for this Court to take different view and substitute the same to the one taken by Tribunal. 11. In so far as the order of grant of back wages is concerned, the Respondent No. 1 has filed affidavit before the Tribunal specifically contending that he has not been gainfully employed during the relevant period. Once such statement is made, the burden shifts upon the Employer/Management to prove that the employee is gainfully employed during this period. There is absolutely no evidence on record led by the Management to show gainful employment of Respondent No. 1. In such circumstance, no fault can be found with the order of Tribunal granting back wages to Respondent No.1. Umesh PAGE 8 OF 9 18-WP-5960-2022.odt 12. Since the findings recorded by the Tribunal are based on evidence on record so also are consistent with the position of law, this Court finds no perversity therein in order to cause interference. In the result, Petition stands dismissed. Pending civil
Decision
application(s) stands disposed of. (R. M. JOSHI, J.) Umesh PAGE 9 OF 9