2007 Supreme(Bom) 1406

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(D. B. Bhosale, J.)
HINDI VIDYA BHAVAN, MUMBAI and others Petitioners.
vs.
PRESIDING OFFICER, SCHOOL TRIBUNAL, MUMBAI and others Respondents.
W.P. Nos. 1494 to 1500 of 2007
Decided on : 28-9-2007

Headnote:Maharashtra Employees of Private Schools (Conditions of Service)-Regulation Act, 1977 - Sections 9 and 5-Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, Rule 9-Temporary/Casual employees through security agency-Question arises as to relation of employee and school-Employment not approved by Education Department-Employer-Employee relation not established-Earlier proceedings withdrawn and filed appeal before School Tribunal-Ordered reinstatement with backwages-Petition against-Held that order of School Tribunal was right-School Tribunal held employees were employees of petitioner school-Contention, that relation of employer-employee was not established and further that their employment was not approved by Education Department-Earlier proceedings under MRTU and PULP Act were withdrawn by respondent employees and appeals before School Tribunal filed-School Tribunal allowed appeal and ordered reinstatement with backwages-Petition against.-The Full Bench has observed in several issues including the issues as to whether it is mandatory for every private recognised school to obtain the approval of the Education Department of the State for the appointment of every employee including a teacher employed at such school. It also considered that does the School Tribunal under Section 9 of the Act have jurisdiction to adjudicate upon a dispute falling within the purview of that provision on such dispute being raised by an employee whose appointment is not approved by the Education Department of the State and whether an appeal under Section 9 of the Act by an employee whose appointment has not been approved by the Education Department of the State is maintainable. All these questions were answered by the Full Bench holding that neither the Act nor the rules framed thereunder mandate the grant of approval by the Education Officer is a condition precedent to a valid order of appointment. The requirement of approval which relates to the disbursal of grant-in-aid is a matter between the management and the State and want of approval will not invalidate an order of appointment. The petitioners claim that the respondent-employees, were not members of their staff and that they were the employees of Mithila. The petitioners also have relied upon the documents produced on record to contend that the respondent-employees were not employed by the school. However, the fact remains that they were working continuously in the school for more than two years and were rendering services to the pupils of the school which were required to be provided under the provisions of the act, the rules and the Secondary Schools Code. Their services were required since the approved/sanctioned staff was not adequate.

       Upon mere perusal of Section 1 of the Contract Labour Act it is clear that it applies to every establishment in which 20 or more workmen are employed or were employed on any day of the preceding 12 months as contract labour and every contractor who employs or who employed on any day of the preceding 12 months 20 or more workmen. It further provides that the appropriate Government may, after giving not less than two months notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment or contractor employing such number of workmen less than 20 as may be specified in the notification. The provisions in this Act are not at all attracted insofar as the petitioner-school is concerned inasmuch as neither it is a case of the petitioners that 20 or more workmen were employed by them on contract basis or there was a notification issued by the appropriate Government applying the provisions of this Act to the school since the number of workmen were less than 20. It is also relevant to notice that neither the school was registered as contemplated by Section 7 nor the contractor had obtained a valid licence under Section 12 of the Contract Labour Act. Section 9 puts a bar on the principal employer from employing contract labour in the absence of a registration under Section 7. In any case if the work for which contract labour is employed is incidental to and closely connected with the main activity of the industry and is of a perennial and permanent nature, it is well settled, the abolition of contract labour would be justified. Taking over all view of the matter, in my opinion, merely because, there is no notification issued under Section 10, does not necessarily mean that the petitioner-school could have validly engaged Mithila and through Mithila service of the respondent-employees. As noticed earlier that the recruitment and conditions of the service of the employees in private schools are governed by the act and the rules and they must be adhere to while appointing members of the staff. The management cannot take advantage of its own wrong to contend that no procedure was followed or an appointment letter was issued and on that ground terminate a member of the staff, who was appointed on permanent post and was holding the required qualification.

       Maharashtra Employees of Private Schools (Conditions of Service)-Regulation Act, 1977 - Sections 9 and 5(2)-Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, Section 28-Peons employed in a school for additional work through a contractor for more than two years terminated under MRTU and PULP Act withdrawn-Later appeal filed before School Tribunal-Question arises as to jurisdiction of Tribunal-Held that there is no reason as to why Tribunal cannot decide this matter.-The Act regulates the recruitment and conditions of the services of the employees in private schools in the State and it was enacted with a view to provide such employees with security and stability of service to enable them to discharge their duties towards pupils and guardians in particular and the institution and society in general effectively and efficiently. The provisions of the Act confer substantive rights on the employees to seek protection of their services. The principles laid down by the Supreme Court in dealing with the provisions of the MRTU and PULP Act are of no avail to the petitioners, in the present case, under the Act and the Rules. I do not see any reasons as to why the Tribunal cannot decide the issue of jurisdiction, if raised, by the employer, as in the present case. There is no prohibition in dealing with the issue of relationship between the employer and employee by the School Tribunal. The School Tribunal once having convinced that a person filing an appeal under Section 9(1) of the Act, duly qualified to be appointed on the vacancy, whether teaching or non-teaching, had worked in the school as its employee for more than two years on a permanent vacancy it can deal with all the questions, objections and issues raised by the employer in the appeal and there is no need to relegate the parties to any other forum to decide such questions or issues.