IN THE SUPREME COURT OF INDIA                                                      

              CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.421 OF 2007

      Head Master, Meenal Arjun Chavan Vidyalaya  .....Appellants Ulhasnagar & Anr.        

Versus

Sunita Laxman Kolhe & Anr.    ....Respondents

                                O R D E R

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 summarily dismissed.

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

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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.

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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 following order:

“Learned counsel 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  

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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 the Management.

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  

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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 following documents:

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.”

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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:

“Heard the 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.

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 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

India.  

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

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dismissed.  It, 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  with costs.

          ................. J.                    [C.K. THAKKER ]   

                                   .................J.                                                          

[AFTAB ALAM]         NEW DELHI,       NOVEMBER 05, 2008.