Head Master, Meenal
A.C. Vidyalaya & ANR Vs. Sunita Laxman Kolhe & ANR.  INSC 1867 (5
JURISDICTION CIVIL APPEAL NO.421 OF 2007 Head Master, Meenal Arjun Chavan
Vidyalaya .....Appellants Ulhasnagar & Anr. Versus Sunita Laxman Kolhe
& Anr. ....Respondents ORDER The present appeal arises out of a brief order
passed by the High Court of Judicature at Bombay in Writ Petition No.6446 of
2006. By the said order, a writ petition filed by the appellant herein (Management
before the High Court) under Article 227 of the Constitution of India was
The facts of the case
are that the respondent herein was appointed as an Assistant Teacher in Smt.
Meenal Arjun Chavan Vidyalaya, Ulhasnagar on June 16, 1997. According to her,
she was continued in service up to December 28, 2001.
From that date
onwards, however, she was not allowed to discharge duty and also not allowed to
sign muster roll. Being aggrieved by the said action, she preferred Writ
Petition No.5840 of 2002 in the High Court of Bombay on which rule nisi was
issued. But finally by an order dated August 25, 2005, the writ petition was
disposed of as the High Court felt that appropriate statutory remedy is :2:
available to the
respondent under Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977 (hereinafter referred to as 'the Act').
In pursuance of the
said order, the respondent herein approached the Maharashtra School Tribunal at
Navi Mumbai by filing Appeal No.20 of 2005. The Tribunal after considering the
facts and circumstances as also the evidence led by both the parties, recorded
a finding of fact that the respondent herein was appointed by the Management
and that she had completed more than two years and her services were terminated
only in 2001 i.e. after about four years. In the light of the findings recorded
by the Tribunal, final order was passed by the Tribunal granting reinstatement.
Regarding back wages,
the Tribunal took the view that though the services of the respondent were
terminated in December, 2001. she did not avail of alternative and equally
efficacious remedy under the Act but had approached the High Court by invoking
writ petition under Article 226 of the Constitution of India and it was only
after the order passed by the High Court granting liberty to the respondent to
avail of the remedy that she had approached the Tribunal in 2005. Considering
the said aspect, the Tribunal granted back wages but not from the date of
termination of her services but from the date of approaching the Tribunal.
Being aggrieved by
the said order, the Management approached the High Court but the High Court
summarily dismissed the writ petition. The said order is challenged by the
Management in the present appeal. On January 08, 2007, the Court passed the
for the petitioner is directed to produce all the muster roll records and other
records pertaining to the appointment of the respondent herein including the
so called letter of appointment and he acquittance roll of the payment made,
within two weeks. Put up after two weeks."
On January 25, 2007,
leave was granted and interim stay was also granted. Today the matter has been
called out for final hearing.
We have heard the learned
counsel for the parties. The learned counsel for the appellant vehemently
contended that the respondent was never appointed on regular basis on a
permanent post by the appellant. The counsel submitted that the respondent
herself was aware of that fact and that is why a prayer was made by her to
issue an order of appointment. According to the counsel, the prayer went to
show that she was not appointed on a permanent post and appointment order was
not issued in her favour. It was also contended that no documentary evidence
was produced by the respondent which would show that there was a permanent :4:
vacancy in the school
and she was appointed on probation and by completion of two years, she became
permanent. It was, therefore, submitted that the Tribunal committed an error of
law in granting benefit to the respondent. It was also contended that the
respondent had forged the so called appointment order and on that ground also,
she was not entitled to an equitable relief of reinstatement. The High Court in
the light of all the contentions ought not to have disposed of the petition by
a 'cryptic order' and ought to have entered into all the questions raised by
Finally, it was
submitted that even if the Tribunal is held to be right in setting aside the
action of the Management, back wages ought not to have awarded.
It was submitted that
this Court in a series of decisions has held that grant of back wages depends
upon the facts and circumstances of each individual case and no back wages can
be ordered to be paid merely on the ground that the termination was illegal. It
was, therefore, submitted that the order passed by the Tribunal deserves to be
set aside. In any case, the matter must be remitted to the High Court so that
it may be decided in accordance with law by a reasoned judgment.
Learned counsel for
the respondent, on the other :5:
hand, submitted that
the order passed by the Tribunal does not call for interference by this Court
in exercise of power under Article 136 of the Constitution of India. It was
submitted that it was not the case of the Management that the respondent was
not working in the school. In fact, the case of the Management was that the
respondent had worked for some time on 'contract basis'. If it is so, it was for
the Management to put forward the relevant record showing that such appointment
was merely on 'contractual basis' and it did not create any right in favour of
an employee. But it was not done.
Our attention was
also invited to an application filed by the respondent herein before the
Tribunal demanding the relevant documents which would throw considerable light
on the status of the respondent. In paragraph 3 of the application, the
respondent had prayed to the Tribunal to direct the Management to produce the
1) Muster Roll from
1997 to 2002 of primary as well well secondary section.
2) Catalogue of 5th
Std. For the academic year 1998- 99.
3) Result sheet of
5th Std.For the academic year 1998- 99.
4) Result sheet and
catalogue of 9th Std.For the academic year 2000-01.
5) The Staff approval
of the school from the year 1998.
6) Catalogue of
1999-2000 for 9th Std."
An order was passed
by the Tribunal directing the Management to produce the documents. Admittedly,
no such documents were produced by the Management and the Tribunal decided the
case on the basis of the application made, order passed and by raising adverse
inference against the Management. Moreover, in spite of the order of this Court
as noted above, no documentary evidence for the period between 1997-2001 has
been produced by the Management.
It is true that the
High Court has not entered into the merits of the matter and without issuing
notice to the respondent herein, dismissed the petition by a brief order which
reads as under:
learned counsel for the petitioner.
No case is made out
to interfere with the impugned order.
The view taken by the
Tribunal is reasonable and possible view. Petition is therefore, dismissed in
limini with no order as to costs."
In our opinion, it
would have been appropriate had the High Court considered the facts of the case
and disposed of the matter. But on the facts and in the circumstances of the
case, in our opinion, this is not a case which calls for interference under
Article 136 of the Constitution of India.
So far as the
provisions of the Act are concerned, they lay down the procedure for
termination of services of a teacher. The Tribunal which is an authority under
the Act entered into the factual aspect and recorded certain findings. The
School Tribunal considered all the facts and recorded a finding of fact that
the respondent was appointed as a teacher in 1997 and was continued till 2001.
In view of the said
fact, in our opinion, it cannot be said that the Tribunal had committed an
error of jurisdiction which required to be corrected by the High Court in
exercise of power of superintendence under Article 226 of the Constitution of
In view of the said
fact, in our opinion, though the disposal of High Court may not be said to be
strictly proper, in the light of factual situation, we are of the view, that
the case does not require interference by this Court in its discretionary and
equitable jurisdiction under Article 136 of the Constitution of India.
Regarding back wages
also, in our opinion, the Tribunal was not wrong.
It has not lost sight
of relevant facts and has taken into account equitable consideration. The
respondent instead of approaching the Tribunal, approached the High Court
directly and the writ petition was
however, took about four years. Obviously, the Management could not be blamed
for such delay. The Tribunal considered the said fact and did not grant benefit
of payment of wages to the respondent teacher for the said four years.
As far as the
remaining period is concerned, in view of the fact that in the light of the
statutory provisions, the respondent teacher had become permanent employee of
the appellant institution, the grant of benefit cannot be held to be
unreasonable or otherwise illegal.
For the foregoing
reasons, the appeal deserves to be dismissed and it is dismissed accordingly
J. [C.K. THAKKER ]