Mandar Limaye

Order - Status 9: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Chitra Vasant More Petitioner Vs. Bhavika Vidya Prasarak Respondents Mandal and Ors. Mr. Mandar Limaye, for the petitioner. Mr. Dilip Bodke, for the respondent Nos. 1 to 3. CORAM : Dr. D. Y. CHANDRACHUD, J. DATED : 21st, November 2008. P.C. . The learned counsel appearing on behalf of the 1st, 2nd and 3rd respondent seeks an adjournment to file a reply. The reply shall be filed on or before 5th December, 2008. Matter be placed for final disposal on 12th December, 2008. Sd/- [ Dr. D.Y. ChANDRACHUD, J.]

Order - Status 16: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.4197 OF 2008 Mrs.Chitra Vasant More : Petitioner V/s. Bhavika Vidya Prasarak Mandal & Ors. : Respondents ... Mr.Mandar Limaye for the petitioner. Mr.Dilip Bodke for respondent nos.1 to 3. ... CORAM : S.A. BOBDE, J. DATE : JANUARY 12, 2009. P.C . Rule, returnable forthwith. Mr.Bodke waives service for the respondent nos.1 to 3. Heard by consent. The petitioner teacher has challenged the judgement and order dated 4.2.2008 passed by the Presiding Officer, Addl. School Tribunal, New Mumbai, in appeal no.48 of 2007. The Tribunal has dismissed the appeal preferred by the petitioner against her dismissal from service. The petitioner was dismissed in pursuance of an inquiry in which it was found that she along with others was guilty of misconduct i.e. distribution of a letter containing serious grievances against the management and going on a relay hunger strike in front of the office of the Zilla Parishad. In appeal filed by the petitioner, the learned Tribunal relied on two letters dated 8.6.2006 and 31.7.2006 in which the petitioner has explained the circumstances in which she along with others participated in the hunger strike. In fact, in relation to participation in the hunger strike, the petitioner denied their actual participation on the ground that on 15.5.2006 i.e. the day of the strike, she was due to get married and she was busy in the performance of the marriage. There is no dispute about the proposed marriage, but the Tribunal has observed on the basis of oral arguments of Mr.Modgi that the marriage was postponed. The learned Tribunal came to the conclusion that the petitioner has admitted the participation in the strike in the above letters. The finding of the Tribunal in regard to circulation of the pamphlet containing defamatory matter is not clear. It may be noted that there is no admission in this regard by the petitioner at all since the petitioner has written in her letter that on that date, certain teachers who had been removed from service distributed letters. Obviously, the petitioner was not one of them because she had not been removed from service on that date. There is also no dispute that the petitioner's name does not appear as one of the signatories of the pamphlet. Mr.Mandar Limaye, the learned counsel for the petitioner, submitted that the order of the School Tribunal is vitiated since it is held that it is not necessary to hold any inquiry. The learned counsel submitted that even if there are letters apparently containing an admission where there is a denial of actual participation by the delinquent, there must be a finding of fact and an inquiry cannot be dispensed with. He further pointed out that in the present case, the conduct of the teachers cannot be described as misconduct because they went on a hunger strike in the Zilla Parishad office and not in the school premises and, therefore, there was no cessation of work. The learned counsel for the petitioner relied on a judgement of this Court in Nandkumar Mahadeo Dengane & Ors. v. Bhavika Vidya Prasarak Mandal & Ors. (2008 (4) Bom.C.R. 319). Having perused the judgement in the aforesaid case, it is clear that this Court was deciding an identical view taken by the Tribunal arising out of the same incident. This Court held that the acts with which the teachers such as the petitioner were charged with do not constitute misconduct. This Court further held that there is a violation of rule 36 of the MEPS Rules. This Court, -: 4 :- therefore, set aside the order of the Tribunal. Mr.Bodke, the learned counsel for the respondent nos.1 to 3, submitted that it cannot be said that there is no misconduct since the petitioner could be said to be guilty of misconduct described by the residuary clauses which read as follows:- "(i) breach of the terms and conditions of service laid down by or under these rules; (ii) violation of the code of conduct; and (iii) any other act of similar nature." However, the learned counsel is not in a position to point out the basic definition from which similarity can be worked out. I find that the challenge is substantially covered by the judgement of this Court in Nandkumar's case (supra) and the petition is liable to be allowed and is, accordingly, allowed. Mr.Limaye points out that the petitioner has not been reinstated in service till now. He further pointed out that other teachers in whose favour this Court passed an order have also not been reinstated in service. Having regard to the circumstances of the case, I consider it appropriate to direct the respondents to reinstate the petitioner within a period of one month from today along with consequential benefits. Rule is made absolute in the aforesaid terms. S.A. BOBDE, J.