Case Note & Summary
The petitioners, the Secretary and Headmaster of Niti Niketan Shikshan Sanstha and Niti Niketan Vidyalaya, challenged the judgment of the School Tribunal dated 10.10.2013 in Appeal No.26 of 2012. The Tribunal had allowed the appeal of the first respondent, Smt. Vaishali Ramdas Thote, a teacher, setting aside her termination order dated 1.8.2011 and directing her reinstatement with continuity of service. The petitioners argued that the respondent had abandoned her service, was habitually absent, and her performance was unsatisfactory. They contended that the employer cannot be compelled to retain such an employee. The petitioners also submitted that the respondent had become surplus and was listed for absorption elsewhere, and that backwages should not be paid as she had not worked. The court, after hearing the parties, found no perversity in the Tribunal's order. The court noted that the Tribunal had considered the evidence and concluded that the management failed to prove abandonment or willful absenteeism. The court held that the findings of fact by the Tribunal were not perverse and did not warrant interference. The petition was dismissed, and the rule was discharged.
Headnote
A) Service Law - Abandonment of Service - Burden of Proof - The employer must prove that the employee had voluntarily and willfully abandoned service; mere unauthorized absenteeism does not amount to abandonment unless coupled with intention to relinquish service. The School Tribunal found that the management failed to prove abandonment. (Paras 4-5)
B) Service Law - Probationer - Termination - A probationer's services can be terminated only in accordance with the terms of appointment and principles of natural justice; termination without inquiry for alleged unsatisfactory performance and absenteeism is illegal. (Paras 4-5)
C) Service Law - Reinstatement - Backwages - When an employee has not worked during the period of termination, backwages are not automatically granted; however, the School Tribunal's order of reinstatement with continuity of service was upheld as the termination was illegal. (Para 7)
Issue of Consideration
Whether the School Tribunal's order of reinstatement of the respondent-teacher was perverse and liable to be set aside.
Final Decision
The petition is dismissed. Rule is discharged. No order as to costs.
Law Points
- Abandonment of service must be proved by employer
- Unauthorized absenteeism requires evidence of willful abandonment
- Probationer's termination without inquiry is illegal
- School Tribunal's findings of fact are not to be interfered with unless perverse
Case Details
2015 LawText (BOM) (08) 11
WRIT PETITION NO. 9279 OF 2013
Shri Gunale V.D. for Petitioners, Shri Dhage Vivek for Respondent 1, Smt. Kshirsagar Y.M. AGP for Respondent 2
The Secretary, Niti Niketan Shikshan Sanstha, Jamb (Bk.) Tq. Mukhed, District Nanded; The Headmaster, Niti Niketan Vidyalaya, Jamb (Bk.), Tq. Mukhed, District Nanded
Smt. Vaishali Ramdas Thote, Age 31 years, Occ. Nil, R/o Jamb (Bk.) Tq. Mukhed, District Nanded; The Education Officer (S), Zilla Parishad, Nanded
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Nature of Litigation
Writ petition challenging the judgment of the School Tribunal which allowed the appeal of the respondent-teacher and set aside her termination order.
Remedy Sought
The petitioners (school management) sought to quash the School Tribunal's order of reinstatement of the respondent-teacher.
Filing Reason
The petitioners contended that the respondent had abandoned service, was habitually absent, and her performance was unsatisfactory, and that the Tribunal's order was perverse.
Previous Decisions
The School Tribunal in Appeal No.26 of 2012 allowed the respondent's appeal and set aside the termination order dated 1.8.2011, directing reinstatement with continuity of service.
Issues
Whether the School Tribunal's order of reinstatement was perverse and liable to be set aside.
Whether the respondent had abandoned her service or was habitually absent without authorization.
Submissions/Arguments
Petitioners argued that the respondent abandoned service, was habitually absent, and her performance was unsatisfactory, and that the employer cannot be compelled to keep such an employee.
Petitioners submitted that the respondent had become surplus and was listed for absorption, and that backwages should not be paid as she had not worked.
Petitioners relied on several judgments to support that the appointment was illegal and she had no right to reinstatement.
Ratio Decidendi
The School Tribunal's findings of fact regarding abandonment and absenteeism were not perverse; the management failed to prove willful abandonment. The Tribunal's order of reinstatement with continuity of service was upheld.
Judgment Excerpts
Heard.
Rule.
By consent, Rule is made returnable forthwith and the petition is taken up for final disposal.
Procedural History
The respondent-teacher was appointed as a probationer w.e.f. 1.8.2008 for three years. She was terminated on 1.8.2011. She filed Appeal No.26 of 2012 before the School Tribunal, which allowed the appeal on 10.10.2013, setting aside the termination and directing reinstatement with continuity of service. The petitioners filed the present writ petition challenging that order.
