Dismissed

Mr. Mahendra Sampat Kamble v. the Society of St. Peter School and Ors.

Bombay HC4 Sept 2012WP/5857/2012

Case brief

AI extract

What is this about?

In a writ petition challenging termination due to disability, the High Court of Bombay held that Section 47 of the Persons with Disabilities Act, 1995 applies only to State establishments. Finding the private unaided school not covered, the court dismissed the petition and directed the petitioner to file a suit in a Civil Court.

What did the court decide?

Petition dismissed with liberty to file a suit in a Civil Court; no opinion expressed on merits.

Mr. Mahendra Sampat Kamble Vs the Society of… — Pension and Retirement Benefits | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.5857 OF 2012

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… Mahendra S. Kamble ...Petitioner v/s. The Society of St.Peter School & 2 ors. ...Respondents

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Mr.S.S.Lanke for the petitioner. Mr.A.G.Damle with Mr.R.R.Kinnerkar for respondent No.1.

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CORAM: MOHIT S. SHAH, C.J. & N.M. JAMDAR, J. DATE : 4 September 2012.

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P.C.

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By this petition filed under Article 226 of the Constitution, the petitioner has challenged the order dated 30 June 2008 of respondent No.1school terminating the services of the petitioner.

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The petitioner was an employee of respondent No.1 school, which is a minority unaided institution. The petitioner contended that he was appointed as `Maintenance Helper' and because of disability in his eye sight, respondent No.1school terminated the petitioner's services from 30 June 2008. It is submitted that as the petitioner has acquired 40% visual disability during his service, respondent No.1school could not have terminated the services of the petitioner. The petitioner has invoked provisions of section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Section 47 reads as under:

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“47. Nondiscrimination in Government employment (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

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Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:

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Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

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(2) No promotion shall be denied to a person merely on the ground of his disability:

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Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

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Affidavitinreply has been filed on behalf of the respondentschool opposing the petition on various grounds including preliminary objection that the above Act of 1995 does not apply to a private unaided school.

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The learned counsel for the respondentschool has placed reliance on the decision dated 31 March 2010 in Civil Appeal No.1886 of 2007 of the Supreme Court in Dalco Engineering Pvt. Ltd. v/s. Shree Satish Prabhakar Padhye and anr.

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The learned counsel for the petitioner submits that it has been held by the School Tribunal that Maharashtra Employees of Private School Act, 1997 would not apply to unaided school, which is not recognised by the Director, the Divisional Board or the State Board, or by any officer authorised by him or by any of such Boards and since the respondentschool is affiliated to I.C.S.E (Indian Certificate of Secondary Education) the petitioner has no remedy before the School Tribunal under the M.E.P.S.Act. An application of the similarly situated person like the petitioner has already been dismissed by the School Tribunal on the ground that it does not have jurisdiction. The Labour Court has also dismissed the complaint of the petitioner on the ground of jurisdiction. It is, therefore, submitted that the petitioner is remediless, if this petition is not entertained.

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Having heard the learned counsel for parties, we find considerable substance in the submission made on behalf of the respondentschool that as held by the Supreme Court in Dalco Engineering Pvt.Ltd. (supra) provisions of 1995 Act are applicable to the institutions which are within the definition of `State' and since the respondentschool is not an aided school, it is difficult to accept the petitioner's contention that the respondentschool be treated as “establishment” within the meaning of section 2(k) of the Act,1995.

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The petitioner's remedy would, therefore, be to approach the Civil Court.

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In view of the above, we dispose of this petition with liberty to the petitioner to file suit in a Civil Court. We do not propose to express any opinion on the merits of the controversy between the parties.

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CHIEF JUSTICE

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(N.M. JAMDAR, J.)

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Mr. Mahendra Sampat Kamble v. the Society of St. Peter School and Ors.

Case brief

What is this about?

What did the court decide?

Mr. Mahendra Sampat Kamble v. the Society of St. Peter School and Ors.

Case brief

What is this about?

What did the court decide?

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