The Secretary Shivaji Education Society And ANR v. Sitaram Narayan Kandhare And ANR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD 2 WRIT PETITION NO.5943 OF 2009 1.

The Secretary, Shivaji Education Soceity, C/o Head Master, Shivaji Vidyalaya, Sonkhed, Tq. Kandhar, District : Nanded.

2.

The Head Master, Shivaji Vidyalaya, Sonkhed, Tq. Kandhar, District : Nanded ....

Petitioners (Orig.Respondent Nos.1 & 2)

VERSUS

1.

Sitaram s/o Narayan Kandhare, Age : 58 years, Occu.: Nil, R/o.: Kartha (New), Tq. and District : Nanded ... Orig. Appellant 2.

The Education ofcer (Secondary), Zilla Parishad, Nanded ... Respondents ...

Advocate for Petitioners : Mr. M. V. Ghatge Advocate for Respondent No.1 : Mr. G. G. Suryawanshi AGP for Respondent No.2- State : Mr. N. T. Bhagat ...

CORAM : RAVINDRA V. GHUGE, J.

DATED : 14th OCTOBER, 2019.

ORAL JUDGMENT :

1.

The petitioner-management is aggrieved by the order

dated 16.06.2009, by which the School Tribunal has allowed the application for condonation of delay of 9 years, 8 months and 5 days caused in fling the appeal under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short "the M.E.P.S. Act") for challenging the alleged illegal termination of respondent no.2/ original appellant dated 31.12.1998.

2.

The learned advocate for the petitioners/ management has strenuously criticized the impugned order and draws my attention to the seven grounds formulated in the memo of the petition. He submits that there is no explanation put forth by the appellant as to why such a huge delay should be condoned. He is aggrieved seriously in view of the fact that the School Tribunal condoned this long delay by not even imposing costs upon the appellant. The delay is caused by the appellant and in the event, he eventually succeeds before the School Tribunal, he might be held to be entitled for the back wages even for the period of delay of 9 years and 8 months. If this is permitted, it would amount to allowing a litigant to take advantage of its own wrong and unnecessarily penalize the management with monetary

burden.

3.

Learned advocate Mr. Ghatge further submits that the appeal has been preferred by the appellant at the age of 58 years and that was the age of superannuation of the appellant as per Rule 17 of the M.E.P.S. Rules 1981. No purpose would be served in entertaining the appeal when he is aware that he had approached the School Tribunal at the fag end of his career i.e. at the time of attaining the age of superannuation.

4.

The learned advocate for the appellant submits that the order of termination would be wiped out if he succeeds and he would get retiral and pensionary benefts with notional continuity in service, though he would waive all the back wages.

5.

The learned advocate for respondent no.2/ appellant submits, on specifc instructions taken by him pursuant to the detailed hearing on 11.10.2019, that the appellant is willing to waive the entire back wages for the period of 9 years and 8 months. He submits that the appellant is making this statement notwithstanding the fact that he had

approached a wrong forum by preferring Miscellaneous Application No. 27 of 2001 before the Labour Court on 18.08.2001. After he realized that the Labour Court would not have jurisdiction, he withdrew the said complaint and approached the School Tribunal.

6.

I fnd that the case of the appellant would be covered by Section 14 of the Limitation Act. So also, after he withdrew his complaint from the Labour Court in November 2006, his wife was said to have fallen ill and she had spent some time in treatment. Nevertheless, since the appellant is waiving the entire back wages for the period of 9 years and 8 months, I fnd that this is a fair ofer made. 7.

The Honourable Apex Court in a recent order delivered in identical set of facts in the matter of Rajashree Shahu Shikshan Prasarak Mandal through its Secretary and another Vs. Anand Vitthal Shinde and others in Civil Appeal No. 6474 of 2019 [SLP (Civil) No. 31351 of 2017) has upheld the view taken by this Court that the employee should be deprived of the back wages for the period of delay.

8.

In view of the above, this petition is partly allowed. Clause-3 of the impugned order of the School Tribunal dated 16.06.2009 stands set aside and shall be replaced by the following clause :- "The appellant shall be deprived of the back wages for the period of 9 years and 8 months caused in fling the appeal before the School Tribunal, if he eventually succeeds in the appeal. Needless to state, he would be entitled for notional continuity of service".

9.

Rule is made partly absolute in the above terms. (RAVINDRA V. GHUGE, J.) vsm/-