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2012 Supreme(Bom) 592
2012(3) ALL MR 149
In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE B.P. DHARMADHIKARI & THE HONOURABLE MR. JUSTICE A.B. CHAUDHARI
Gramin Vikas Shikshan Va Krida Prasarak & Another
Versus
Ku. Yamu Narayanrao Bire & Others
LETTERS PATENT APPEAL No. 533 OF 2010 IN WRIT PETITION No. 5072 OF 2008 WITH LETTERS PATENT APPEAL No. 581 OF 2010 IN WRIT PETITION No. 4217 OF 2007
Decided on: 19-03-2012
For the Applicants:R.B. Pendharkar, Senior Advocate with G. Belsare, Advocate. For the Respondents:R1, S.P. Dharmadhikari, Senior Advocate R2 & R3, P.A. Kadu & Khubalkar, Advocates.
Headnote:MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITION OF SERVICE) REGULATION ACT, 1978 - Section 5 - Status of deemed confirmed employee. - Respondent-1, appointed against a clear vacant post twice on probation, acquired status of deemed confirmed employee.
Section 192 of the Bombay Municipal Corporation Act read with Schedule H, provides for levy of octroi. The taxable event is the entry of an aircraft within the municipal limits of the city of Brihan Mumbai for sale, use or consumption therein.
The entry (of the aircrafts), must thus be shown to be for sale, use or consumption within the municipal limits of Mumbai. The levy under Section 192 is a levy of the tax contemplated by Entry 52, List 11, of Seventh Schedule of the Constitution of India. It is obvious that mere entry of goods is not enough to attract the octroi, the entry must be for the purpose of consumption, use or sale within the local area.
Where the aircraft enters and lands in Mumbai after taking off from a place outside Mumbai and then takes off to fly to another destination outside Mumbai, the aircraft cannot be said to have entered for ’use’ in Mumbai.
Thus, octroi would not be leviable on the entry of such aircrafts into the municipal limits if such entry is for the purpose of flying in and out of the municipal limits for passenger transport. In order to attract octroi, it is essential that the article should have been imported for sale, use or consumption within the municipal limits. If the article is imported within the city limits not for use therein but temporarily as in transit, it must be necessarily inferred that the article has not entered for use within the municipal limits.
The petitioners aircrafts have been imported into the municipal limits of Mumbai not for the purpose of being permanently located or flown within the city of Mumbai but have been imported while in transit to other destination according to the schedule, are not liable for the levy of octroi. The Demand Notices issued to both the petitioners, raising demand for octroi are quashed and set aside.
MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITION OF SERVICE) REGULATION ACT, 1978 - Section 9 - Dismissal of appeal by Tribunal. School Tribunal, before dismissing appeal as time barred, ought to extend an opportunity to explain delay to party.
MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITION OF SERVICE) REGULATION ACT, 1978 - Section 9(2) - Limitation for appeal before School Tribunal. Section 9(2) of Act, permits filing of appeal before School Tribunal within 30 days from date of receipt of order of dismissal or otherwise termination of service.
Section 9(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act permits filing of appeal within 30 days from the date of receipt of order of dismissal or otherwise termination of service. Here respondent No. 1 has urged otherwise termination on 20.6.1997. She has 4 contended in her memo of appeal, presented to School Tribunal on 17.7.1997, that junior college reopened on 20.6.1997 and when she went to join, she was asked not to report, as her services were not required. Nothing was given to her in writing, in spite of demand. The fact that employee had reported for work on 20.6.1997 is not in dispute. It is obvious that the appeal has been filed within a period of less than one month from the otherwise termination on 20.6.1997 and limitation.
MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITION OF SERVICE) REGULATION ACT, 1978 - Section 10 - Powers and procedure of School Tribunal. School Tribunal has all general powers and procedure which are vested in appellate Court under CPC.
MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITION OF SERVICE) REGULATION ACT, 1978 - Section 11(2)(f) - MEPS (Conditions of Service) Rules, 1981, Rule 26 - Retrenchment of a permanent employee. Since a permanent employee cannot be retrenched under Rule 26 hence directions of School Tribunal to respondent-3 issued under Section 26(2)(iii) in appeal under Section 9 is not without jurisdiction and also not in conflict with provisions of Section 11(2)(f) of Act.
MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) RULES, 1981 - Rules 25-A and 26 - Scope of. Rule 25-A of Rules, 1981, contemplates a termination of services of employees on account of closure of school, whereas Rule 26 deals with question of retrenchment on account of abolition of post.
B.P. Dharmadhikari, J.
The employer – Educational Institution and its Headmaster have challenged the common judgment dated 24.08.2010 delivered by the learned Single Judge of this Court in Writ Petition Nos. 4217/2007 and 5012/2008. Writ Petition No. 4217/2007 was filed by the employee – respondent no.1 in both these appeals, assailing the judgment and order dated 30.03.2007 delivered by the Presiding Officer, School Tribunal, Amravati in Appeal No.102/1997 denying her the relief of reinstatement and back wages, though a direction to absorb her service with continuity, was issued to respondent Deputy Director of Education. The employer has challenged the very same judgment of School Tribunal holding the employee entitled to absorption in other Science College on the post of Junior College Lecturer. The learned Single Judge has in the impugned judgment maintained the finding of the School Tribunal that discontinuation of employee on 20.06.1997 was illegal and in violation of the mandatory provisions of Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as 'the M.E.P.S. Rules' for short). The refusal by the School Tribunal to grant reinstatement and full back ages has been quashed and set aside and the appellant – Management has been directed to reinstate her w.e.f. 26.06.1997 and grant her continuity and to pay back wages from that date till delivery of the judgment by the School Tribunal i.e. till 30.03.2007. Management has been permitted to get that amount reimbursed from the office of the Deputy Director of Education. A direction has been issued to forward her salary bill from 01.04.1997 till date of judgment by the learned Single Judge, to the office of the Deputy Director and to continue to do so till her absorption with other employer. The Deputy Director has been asked to release the amount payable to the employee and to include her name in the list of surplus staff and to take steps to absorb her. The learned Single Judge has specified time limit for taking steps, however, those time limits are not very relevant.
2. The facts are not much in dispute. The appellant no.1 Society runs a High School and a Junior College since the year 1986 and respondent no.1 was appointed as Junior College Lecturer in Biology to teach 11th and 12th standards, on 28.06.1993 on probation and subject to approval by the Deputy Director of Education. The Deputy Director of Education granted approval only for one year as there was backlog. Respondent no.1 – lecturer was again appointed in the year 1994-95 and again there was approval only for a period of one year. In the year 1995-96, she was appointed on probation for a period of two years but the Deputy Director granted approval for only one year. The Deputy Director of Education inspected the establishment on 02.01.1997 and because of less strength of students, by order dated 20.01.1997 withdrew the Science faculty in junior college. Students then taking education in 11th standard Science, were transferred to another Junior College and students in 12th standard were permitted to continue till the end of academic session. The entire Science faculty was thus closed down.
3. Order withdrawing these classes was challenged by the management by filing an appeal before the Director of Education, and Director of Education on 26.06.1997 found it not necessary to consider the same. It is in this background that the respondent no.1 approached the School Tribunal with grievance that when she reported for work as usual on 20.06.1997 in the academic session 1997-98, Principal informed here that her services were not required and prevented her from signing the muster roll. Treating this as termination, she filed an appeal under Section 9 of the Maharashtra Employees of Private schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as 'the M.E.P.S. Act' for short), before the School Tribunal at Amravati on 1
