Learned Counsel for the v. A. Dhakne submits that
Legal Reasoning
wp-9118-2016.odtstand that the employee has abandoned employment. TheHonourable Apex Court concluded that abandonmentamounts to a charge of unauthorized absenteeism and hencea disciplinary enquiry is required in such matters.24.This Court in the matter of Sudhakar ChinduBhadane (supra) has concluded that Rule 16(3) mandates theManagement to issue a show cause notice of hearing to thepermanent employee, to consider whether he does not desireto report for duties. If the said employee declares that he doesnot desire to report for duties, the management would thenbe in a position to take a decision. It was, therefore, held bythis Court that a notice of hearing ought to have been givento the concerned employee and was under an obligation toprove that he was continuously absent for 3 years.”20.The above view is further reiterated by the Division Bench in thematter of Magasvargiya Shikshan Sanstha and another (Supra). In thatcase, the issue that fell for consideration is stated in paragraph No.4, whichreads thus :-“4. A vital issue emerges in this petition:-- "Whether under Rule 16(2) of the Maharashtra Employees ofPrivate Schools (Conditions of Service) Rules, 1981 ("MEPSRules" for short), issuance of a notice to thetemporary/probationer employee before arriving at a conclusionthat he/she has voluntarily abandoned employment would be anecessity?"Thereafter, it is answered in paragraph Nos.70, 71 and 85, which[11] wp-9118-2016.odtread as follows :-70. In the case of Sudhakar Chindhu Bhadane V/s NiphadTaluka Education Society and others, [2008 (1) Mh.L.J. 448 :2008 (1) CLR 281], this Court concluded that a mere statementwithout any supporting proof that the employee had abandonedservice voluntarily, cannot be accepted. The term "voluntaryabandonment of service" means that a permanent employee isabsent from duty without leave, continuously for a periodexceeding three years or more which would be the basis forpresuming voluntary abandonment. This Court, therefore, heldthat there must be some material before the employer to forman opinion that the employee has abandoned his service. Thisprinciple would be mutatis mutandis applicable even to a non-permanent employee.71. It is thus apparent that if Rule 16(2) is read in itsentirety, the deeming fiction with regard to abandonment ismade applicable to a non-permanent employee for an absenceof even a single day. Rule 16(3) pertains to a permanentemployee, wherein, his absence on a particular date and failureto file a leave application within seven days from the date ofabsence is to be treated as a breach of discipline. If a permanentemployee is absent from duties, without leave, continuously fora period exceeding three years, he is deemed to have voluntarilyabandoned his services, thereby meaning that the very length ofabsence could constitute enough material for an employer toform an opinion.85. I, therefore, find it necessary, in the interest of justice,equity and fair-play, that an employer, before presuming thatthe employee has abandoned employment under Rule 16(2),[12] wp-9118-2016.odtshall issue a notice to the employee calling upon him to explainas to why the employer should not form an opinion that theemployee has abandoned employment. Upon receiving theexplanation of the employee, the Management may thenproceed to pass an appropriate order. This would not onlyenable the Management to take a decision after following theprinciples of natural justice, at the same time, it would enablethe employee to disclose his decision whether to continue inemployment or set out an explanation for his absence. Thiswould render some protection to a non-permanent employeeunder Rule 16(2) and eliminate secrecy in the presumption ofabandonment by the employer.”21.Law laid down in the matters of Sant Kabir Shikshan Prasarak andanother (Supra) and Magasvargiya Shikshan Sanstha and another (Supra),was not followed by the management. The procedure laid down in Rule16(3) of the Rules was given a go bye. The respondent Management mayhave a liberty to exercise the option of issuing notice to the petitionercalling upon her to explain as to why the Management should not form anopinion that the employee has abandoned the services. Needless to statethat further statutory procedure will have to be followed depending uponthe response of the petitioner.22.Learned Counsel for the petitioner has rightly referred to thejudgment of Manojkumar S. Amare (Supra) to claim parity in payment ofsalary as per pay revision in terms of 5th and 6th pay recommendations. [13] wp-9118-2016.odt23.For the reasons assigned above, the petition succeeds. The petitioneris entitled to arrears of salary from 20.08.2013 adjusting the payment madeto her by the respondent Management. She is entitled to receive salary asper scale prescribed in Schedule ‘C’ of the MEPS Act from filing the petitionas well. Hence, we pass following order :-ORDERI)Writ Petition is allowed.II)Respondent Nos.3 and 4 shall pay arrears of salary to thepetitioner from 20.08.2013 till this date by adjusting the paymentmade by the Management to her, within a period of six weeks andshall continue to pay future salary, notwithstanding thereimbursement or otherwise from the Education Department. III)Respondent Nos.3 and 4 shall be at liberty to submit theproposal of the petitioner for grant of approval for her continuationon the regular scale within four weeks from today. The same shall bedecided by the respondent No.2 Education Officer within a period offour weeks thereafter.IV)Rule is made absolute in the above terms.V)There shall be no order as to costs. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEnajeeb..[14]
Arguments
wp-9118-2016.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9118 OF 2016Smt. Ragini d/o Jalindar AtkareAge: 28 years, Occu.: Service,R/o. Ganpati Galli, Ambad,Tq. Ambad, Dist. Jalna. .. PetitionerVersus1.The State of Maharashtra(Through its Secretary,School Education Department,Mantralaya, Mumbai-32)2.The Education Officer (Primary)Zilla Parishad, Jalna.3.Vaidyaraj Sitaram Ghule GraminVikas and Shikshan Sanstha,Chikalthana, Aurangabad.Through its President/Secretary,Vaidyaraj Primary School, Ambad,Tq. Ambad, Dist. Jalna.4.The Head Mistress,Vaidyraj Primary School, Ambad,Tq. Ambad, Dist. Jalna... Respondents…Mr. V. A. Dhakne, Advocate for the petitioner.Mr. K. N. Lokhande, AGP for respondent No.1 – State.Mr. A. S. Usmanpurkar, Advocate for respondent No.2.Mr. Vivek J. Dhage, Advocate for respondent Nos.3 and 4.… CORAM : MANGESH S. PATIL AND SHAILESH P BRAHME, JJ. RESERVED ON : 10 JULY 2024 PRONOUNCED ON : 20 JULY 2024[1] wp-9118-2016.odtJUDGMENT [Per Shailesh P. Brahme J.] :- Rule. Rule is made returnable forthwith. With the consent of theparties heard finally .2.Petitioner is soliciting direction to the respondent – Management tosubmit the proposal for permanent approval and the respondent No.2Education Officer to decide it within six weeks. She also seeks direction topay due salary since her initial appointment.3.Petitioner claims to have been appointed on unaided post in therespondent No.4 School by order dated 08.06.2013, on probation. Herappointment was granted approval vide order dated 06.12.2014 onprobation for a period from 28.06.2013 to 27.06.2015. It is the grievanceof the petitioner that though she was rendering services, the respondentManagement failed to forward proposal seeking permanent approval andalso failed to pay salary. It is further contended that Government startedproviding grants to the School. She was harassed by the office bearers ofthe Management and threatened to be terminated. She submittedrepresentation on 11.04.2016 requesting for unpaid salary and forwardingof proposal. 4.Learned Counsel for the petitioner Mr. V. A. Dhakne submits thatpetitioner was appointed after following due procedure of law and it wasalso approved for a period of two years on probation. She is deemed to[2] wp-9118-2016.odthave been confirmed and being permanent employee entitled to the servicebenefits. It is further submitted that she has not been paid salary by theManagement. Learned Counsel would submit that frivolous plea has beentaken by the Management that the petitioner abandoned the servicesbefore completion of period of probation. He would refer to the extracts ofmuster and the documents produced along with a rejoinder. It isvehemently submitted that there is a correspondence of the Headmistressdated 02.02.2017, 05.01.2017 and letter dated 31.09.2021 issued by theEducation Officer to show that the petitioner was rendering services. 5.Learned Counsel for the petitioner would further refer to theaffidavits of the co-employees, Proforma-A and the certificate signed byHeadmistress to show that she is still in the employment and has not beenpaid. He would rely on the judgments of Sant Kabir Shikshan PrasarakMandal and another Vs. Azhar Azizurraheman Khan and others, [2016DGLS (Bom.) 324, Magasvargiya Shikshan Sanstha and another Vs.Bhausaheb Sonaji Kakade and others, [2016 DGLS (Bom.) 1] andManojkumar S. Amare and others Vs. State of Maharashtra and others,[2020(1) Mh.L.J. 742].6. Per contra, learned Counsel Mr. Vivek Dhage would repel thesubmissions on the basis of affidavit-in-reply. He would submit thatpetitioner was appointed vide letter dated 20.06.2013, but left the services[3] wp-9118-2016.odtvoluntarily since after 26.02.2015, even before completing the probation.She was not possessing TET qualification. It is further submitted thatpetitioner made false complaints to the Education Officer on 16.11.2016,which indicates otherwise termination. Even letter by Education Officerdated 18.01.2017 also indicates cause of action to prefer appeal againstotherwise termination. It is further contended that as she abandoned theservices since 26.02.2015, she is not entitled to any service benefits.7.Learned Counsel would submit that there are disputed questions offacts. Petitioner has alternate remedy of preferring appeal againstotherwise termination. Hence, petition is not maintainable. It is furthersubmitted that attendance register of the students from June 2015 toJanuary 2016 at Exhibit-E are forged and liable to be referred tohandwriting experts.8.We have considered rival submissions of the parties. There is nodispute that the petitioner was appointed as a Shikshan Sevak vide orderdated 20.06.2013 for a period of two years. Her appointment wasapproved by Education Officer for a period of probation from 28.06.2013to 27.06.2015. She made representations on 11.04.2016 and 16.11.2016,claiming unpaid salary and forwarding of the proposal. Fulcrum ofcontroversy is as to whether the petitioner is in service of the respondent –Management so as to claim the service benefits.[4] wp-9118-2016.odt 9.To show that petitioner is rendering services, extracts of muster areproduced at Exhibit-E, which are disputed by the respondent –Management by filing affidavit-in-reply being forged. Along with the reply,petitioner’s representation dated 16.11.2016 is filed by the Management.Apparently, it can be inferred from it that the petitioner was prohibitedfrom rendering the duties from June 2016. She was not being allotted classand not being permitted to sign the muster. Normally, these avermentswould be indicative of otherwise termination, for which there is a remedyof preferring appeal under Section 9 of Maharashtra Employees of PrivateSchools (Conditions of Service) Regulation Act, 1977 (hereinafter referredto as the “MEPS Act”). This submission of Mr. Vivek Dhage, learnedAdvocate for the respondent Management, are attractive. However, minutescrutiny of the material on record would indicate a different scenario.10.To counter the plea of the Management, petitioner filed rejoinderwith certain documents on 26.02.2024. It is reiterated that petitioner is inservice, on the basis of correspondence filed on record with the rejoinder.Undisputedly, respondent No.2 Education Officer addressed a letter toHeadmistress of the respondent No.3 School on 18.01.2017 calling uponthe school authority to submit the explanation for grievance ventilated bythe petitioner vide application dated 16.11.2016. In response to the letterdated 18.01.2017, respondent No.4 Headmistress addressed a letter on[5] wp-9118-2016.odt02.02.2017 disputing the grievance of the petitioner and raising an issuethat petitioner was unable to submit TET certificate. It was furthercontended that her performance was unsatisfactory and she was notpunctual. It was also stated that petitioner be directed to submit certificateof TET so as to forward proposal for further continuation of the services.The guidance of the Education Officer was solicited as to whether theservices of the petitioner should be terminated or not. 11.This letter of the respondent No.4 Headmistress clearly indicates thatat-least up to 02.02.2017, the petitioner was in service and was notterminated. Had the petitioner abandoned the services from 26.02.2015, aspleaded in reply, respondent No.4 Headmistress would have clearly statedso and would have pointed out that the petitioner ceased to be anemployee after 26.02.2015.12.Before replying Education Officer on 02.02.2017, a notice was issuedby the respondent No.4 Headmistress to the petitioner on 05.01.2017calling upon her to submit the TET certificate, else her services would beterminated. This also indicates that petitioner was in service at the relevanttime. Petitioner has produced affidavits of co-employees namely, KishorBhausaheb Pival dated 30.06.2017, Bhagwan Vitthalrao Sansare dated30.06.2017, Kantilal Khemsingh Rathod dated 01.07.2017 stating that[6] wp-9118-2016.odtpetitioner was in service along with them and her performance wasexcellent. Besides that, there are affidavits of parents of the students toshow that she was rendering services. 13.Education Officer addressed a letter dated 30.09.2021 to therespondent No.4 – Headmistress in respect of the grievance made by thepetitioner and to comply the service conditions of the petitioner. No replywas given to this letter by the respondent School. This was anotheropportunity to the Management to inform Education Officer that thepetitioner was no more in service and her claim to the service benefit wasillegal. Petitioner further produced documents, in all probabilities forsecuring grants from the Government, in which petitioner’s name was alsomentioned along with other teachers. The documents corroborate thatpetitioner is in service and she has not abandoned the services as tried tobe contended in the affidavit-in-reply. 14.Respondent Nos.3 and 4 did not file any additional affidavit orsurrejoinder to the rejoinder filed by the petitioner, disputing thedocuments produced along with it. Only during course of arguments,learned Counsel Mr. Vivek Dhage would make submissions that thecorrespondence issued by Headmistress on 05.01.2017, 02.02.2017 and theaffidavits produced along with the rejoinder are disputed. This submission[7] wp-9118-2016.odtof the respondent – Management cannot be countenanced being anafterthought. 15.The letter written by Headmistress on 02.02.2017 was in response tothe letter of Education Officer issued on 18.01.2017 to her. At the cost ofrepetition, we find that the respondent – Management had opportunity toinform Education Officer as well as petitioner that she ceased to beemployee after 26.02.2015, but that has not been done. Rejoinder and thedocuments referred above would belie the stand being taken by therespondent Nos.3 and 4 in the reply that petitioner had abandoned theservices since 26.02.2015. 16.It is also tried to be submitted by learned Counsel that letters dated05.01.2017 and 02.01.2017 were issued by respondent No.4 Headmistresswithout there being any authority or approval from the Management.There is nothing on the record to show that any action has been taken bythe respondent No.3 Management against the Headmistress for issuinginconsistent letters or not apprising the Management about the same. It ispertinent to note that present petition was filed on 20.08.2016 and theletters dated 05.01.2017 and 05.02.2017 were issued by Headmistresspending the petition. We have no hesitation to hold that a false plea ofabandonment of service has been taken by respondent no.3/management.[8] wp-9118-2016.odtThe petitioner is in service of the respondent Nos.3 and 4. 17.Petitioner’s appointment is approved by Education Officer vide letterdated 06.12.2014 from 28.06.2013 to 27.06.2015. Thereafter byimplication of Section 5(2) of the MEPS Act, she is deemed to have beenconfirmed. It is informed by the parties that the school was admissible tothe grants from 01.07.2016. Respondent Nos.3 and 4 were underobligation to forward proposal seeking further approval for continuation ofthe petitioner on regular scale. The respondent no.3 and 4 did not forwardproposal. In that case, entire liability of payment of salary would be ofManagement. The respondent Nos.3 and 4 would be at liberty to forwardproposal seeking approval for continuation of the petitioner to theEducation Department.18.The respondent – Management has stated in reply that an amount ofRs.5,000/- per month was paid to the petitioner from 28.06.2013 till25.02.2015. The appointment of the petitioner was not as a ShikshanSevak, but as an Assistant Teacher. As the school was not getting grants atthe relevant time and as such scheme of Shikshan Sevak was notapplicable, the petitioner was entitled to the salary of a primary teacherprescribed by Schedule ‘C’ of the MEPS Act. The amount paid by therespondent – Management from 28.06.2013 to 25.02.2015 would beadjustable. Petitioner is entitled to receive difference of salary from[9] wp-9118-2016.odt20.08.2013, that is for preceding three years of filing of petition, from theManagement. The liability of the payment of salary would not bedependent upon any future claim of the Management for reimbursementfrom the Education Department. 19.Our attention is invited by learned Counsel for the petitioner that incase of abandonment of services, the procedure contemplated by Rule 16(3) of the Maharashtra Employees of Private Schools (Conditions ofService) Rules, 1981 (hereinafter referred to as the “Rules”) would beapplicable. The respondent – Management did not call upon the petitionerby issuing notice for initiation of any disciplinary action as per Rule 16(3)of the Rules. Learned Counsel for the petitioner refers to the judgment oflearned Single Judge in the matter of Sant Kabir Shikshan Prasarak Mandaland another (Supra). That matter was emanating from the decisionrendered by School Tribunal against Management. It was plea of theManagement that from 2005, employee concerned had abandoned theduties. The plea was not accepted by the Tribunal and by learned Judge ofHigh Court. Following is the relevant portion :-“21.The Honourable Supreme Court in the matter of(Novartis India Ltd. Vs. State of West Bengal and others, [AIR2008 SC (Suppl) 836] : (2009)3 SCC 124, while dealing witha case of permanent employee, having not reported at theplace of transfer, concluded that the same would amount toan unauthorized absenteeism. The Management had taken a[10]