Letters Patent Appeal Stamp No.36340 of 2002,Writ Petition No.3817 of 2002

17th June, 2003

Petitioner Counsel: Mr. A. G. KOTHARI
Respondent Counsel: Mr. N. V. BANDIWADEKAR,Mr. DILIP BODAKE

Cases Cited:
State of Maharashtra Vs. Ramdas Shrinivas Nayak, AIR 1982 SC 1249 [Para 10]
Hindustan Education Society Vs. Sk. Kaleem Sk. Gulam Nabi, (1997)5 SCC 152 [Para 13]
Bhartiya Gramin Punarrachana Sanstha Vs. Vijay Kumar, (2002)6 SCC 707 [Para 13]
K. A. Barot Vs. State of Gujrat, (1992)1 CLR 343 (SC) [Para 14]

JUDGMENT

C. K. THAKKER, C.J.:- This appeal is filed against the order passed by the learned Single Judge dismissing Writ Petition No.3817 of 2002 on 2nd August, 2002. The learned Single Judge by the said order, confirmed the order passed by the Presiding Officer, School Tribunal, New Mumbai in Appeal No.12 of 2000.

2. The service of the respondent-teacher was terminated and the said action was challenged by the teacher by filing an appeal before the School Tribunal. The Tribunal held that the order passed against the teacher was illegal on more than one ground. It was observed that as per the order of appointment dated 10th June, 1999, the Management was required to give notice of two months before terminating services of the petitioner. Since only one month's notice was given, the action was illegal. It was also observed that as the service of the petitioner was not terminated by "Management" as defined under Section 2(12) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, the action was liable to be set aside.

3. Being aggrieved by the said order, the Management approached this Court. The learned Single Judge confirmed the order passed by the Tribunal. That order is challenged in the present Letters Patent Appeal.

4. The learned counsel for the appellants contended that the order passed by the Appellant was legal, valid and in consonance with Rule 28(1) of the Maharashtra Employees of Private Schools Rules, 1981. Sub-Rule (1) of Rule 28 reads as under :

"28(1) The services of a temporary employee other than on probation may be terminated by the Management at any time without assigning any reason after giving one calender month's notice or by paying one month's salary (pay and allowances, if any) in lieu of notice.

In the case of an employee entitled to vacation, the notice shall not be given during the vacation or so as to cover any part of the vacation or within one month after vacation." (Emphasis supplied)

5. The counsel contended that when the statutory provision enjoins the Management to issue notice of one months, and when such notice was given, the action cannot be said to be bad in law and Tribunal and the learned Single Judge committed error of law and of jurisdiction in granting relief to the respondent-teacher. The Tribunal as well as learned Single Judge observed that provision of Rule 28(1) is enabling in nature. If the Management by a specific agreement, agrees to give two months notice, the teacher can insist upon such notice. When such notice was not given, it was open to him to contend that the action was not legal and lawful.

6. There is yet another reason. In the instant case, the conditions of appointment are also clear. Two conditions are relevant and they are condition nos.6 and 7. They read as under :

"6) This appointment is for a period of one year and you shall agree to serve us at least for this period.

7) After the above period of one year, termination of this appointment may be done by either party giving two months' notice to the other, in writing."

7. Thus, condition no.6 states that for a period of at least one year, it was obligatory on the teacher to serve the Management and it was not open to him to leave service. Condition no.7 starts with expression "After a period of one year", meaning thereby that even after a period of one year would be over, such termination can be effected by notice from either side but it should be two months' notice. If in the light of above conditions and in the facts and circumstances, a view was taken by the Tribunal confirmed by the learned Single Judge that notice of two months was necessary, it cannot be said that illegality was committed.

8. The Tribunal also observed in the order that the order of termination was passed by the Head Master and not by the Management. The Head Master cannot be said to be a "Management" within the meaning of said expression used in the Act. That contention does not appear to have been pressed before the learned Single Judge as the order does not reflect the said argument at all. No doubt, the learned counsel for the appellant contended that the point had been pressed before the learned Single Judge and the said contention is once again taken in the Memorandum of Appeal.

9. In our opinion, when there is no reference in the order passed by the learned Single Judge, it is not open to this Court to hold that such a contention was advanced before the learned Single Judge and yet not dealt with.

10. In this connection, a reference may profitably be made to a decision of the Supreme Court in State of Maharashtra Vs. Ramdas Shrinivas Nayak and others, AIR 1982 SC 1249. In that case, on the basis of a concession said to have been made by the learned counsel appearing for the Chief Minister, an order was passed by this Court. The matter was then taken to the Supreme Court by the State. Before the Supreme Court, it was contended that no such concession was made before the High Court of Bombay on the basis of which, the order was passed. The Supreme Court however, negatived the contention and observed that when on the basis of concession, an order was passed by the High Court, it was not open to the Court to enquire into as to whether such statement was made or not. The Court also observed that in such cases, appropriate course for the party is to approach the same Court and that also within a reasonable time so as to set the record straight.

11. The Court, after referring to the leading cases on the point, stated;

"When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri. A. K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri. Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation" (Per Lord Atkinson in Somasundaran Vs. Subramanian, AIR 1926 PC 136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statement at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the Judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in a court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan Vs. Chandrabati, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment."

The Court concluded ;

"So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else".

12. In the instant case, when there is no reference in the order passed by the learned Single Judge as to one of the grounds which weighed with the Tribunal that order was not passed by the competent authority, and on that ground, the appeal was allowed, it cannot be held that there was an error of law or of jurisdiction. Nor that the said argument was put forward and yet was not considered or dealt with by the learned Single Judge.

13. The learned counsel for the appellants drew our attention to three decisions of the Supreme Court. Hindustan Education Society and Another Vs. Sk. Kaleem Sk. Gulam Nabi and others, (1997)5 SCC 152 and Bhartiya Gramin Punarrachana Sanstha Vs. Vijay Kumar and others (2002)6 SCC 707, would not carry the case of the appellant anywhere. In those cases, it has been held by the Supreme Court that a person who is on probation or posted on temporary basis does not get a right to hold the post and his services can be terminated. The said position is well founded and is not disputed by the learned counsel for the respondent-teacher. But the ratio laid down therein does not apply to the present case.

14. In K. A. Barot Vs. State of Gujrat (1992)1 CLR 343 (SC), it was held by the Supreme Court that if services of a temporary employee were terminated without issuing one month's notice as required by law, the termination would be bad in law but the employee would be at the most, be entitled to one month's salary in lieu of notice.

15. But K. A. Barot has no application here as the action is without authority of law. It was held by the Tribunal which has not been disturbed by the learned Single Judge of this Court that no action could have been taken by the Head Master as he was not an authority competent to pass the order. Since the order was not in accordance with law, it was set aside. In the circumstances, the teacher was entitled to all consequential benefits.

16. In our opinion, the learned counsel for the respondent is also right in submitting that the appellant has totally ignored the order passed by the Tribunal. It may be stated that the order was passed by the Tribunal directing the appellant to reinstate the respondent-teacher with all consequential benefits. The said order was not implemented. That order was passed on 7th April, 2001. The appellant instituted a writ petition in this Court. It is not even his case that interim relief was granted by the learned Single Judge. The fact, however, remains that the order was not obeyed or implemented. The petition was dismissed by the learned Single Judge on 2nd August, 2002 and even then the teacher was not reinstated. This Letters Patent Appeal was then filed. Even in this Appeal, no interim relief was granted. Thus, though the order was passed before two years, it is never implemented by the Management. We are exercising powers under Articles 226/227 of the Constitution though it was contended by the learned counsel for the respondent that it is only under Article 227 of the Constitution and hence Letters Patent Appeal does not lie. The jurisdiction we are exercising is legal as well as equitable jurisdiction. When the order passed by the Tribunal and confirmed by the learned Single Judge has not been implemented by the appellant, it is an additional ground not to interfere with the orders in the Letters Patent Appeal.

17. For the reasons mentioned hereinabove, in our opinion, the Letters Patent Appeal deserves to be dismissed and it is accordingly dismissed. No order as to costs.

At this stage, the learned counsel for the appellant prays for grant of leave to appeal to the Supreme Court. In our opinion, the case does not involve substantial question of law which in our opinion, needs to be decided by the Supreme Court. Hence, certificate is refused.

Parties be given copies of the order duly authenticated by Sheristedar/Personal Secretary of this Court.

Letters Patent Appeal dismissed.