Smt Chandni Singh vs Shri Vijay Pratap Singh, D.I.O.S. Mau And 2 Others

Opposite Party :- Shri Vijay Pratap Singh, D.I.O.S. Mau And 2 Others

Counsel for Applicant :- A.K.Srivastava,Vishwa Mohan

Counsel for Opposite Party :- Pankaj Srivastava,P.D.Tripathi,Pranesh Dutt Tripathi,Ratnesh Kumar Pandey,Vinod Kumar Sharma

Hon'ble Rohit Ranjan Agarwal,J.

The writ Court, on 04.07.2017 in Special Appeal No.362 of 2017, had passed the following order:-

"Heard learned counsel for the parties.

This intra court appeal is directed against the judgment and order of the learned Single Judge dated 18th May, 2017, whereunder the learned Single Judge, after noticing that the petitioner was engaged in a private institution had approached the High Court against an order of termination, held that the writ petition would not be maintainable.

The issue with regard to the maintainability of a writ petition against a private institution has been settled by the Apex Court in the case of Committee of Management, Delhi Public School and Another Vs. M.K. Gandhi and Others,(Civil Appeal No. 339 of 2007 decided on 16.08.2007). The Supreme Court has held that no writ is maintainable against a private school as it is not a 'State' within the meaning of Article 12 of the Constitution of India. The proper remedy available is to file a civil suit.

In view of the law laid down by the Apex Court, we hardly find any illegality in the order of the learned Single Judge.

Counsel for the petitioner, however, contended that in view of the fact that the petitioner had applied for maternity leave and the employer has decided to terminate her employment, the same is in teeth of Section 12 of The Maternity Benefit Act, 1961 (hereinafter referred to as 'Act, 1961'), the writ petition would be maintainable.

We have examined the submission so made. It is no doubt true that section 12 of the Act, 1961 provides that if a woman absents herself from work in accordance with the provisions of this Act because of her being pregnant, no notice for discharge or dismissal can be issued. The payment to which a woman is entitled towards maternity benefits etc. under the Act, 1961 need to be examined by the Inspector as per Section 17 and a direction being issued to the employer to make the payment on being satisfied with the claim of the lady concerned. Under Section 21 penalty is provided against employer for contravention of the provisions of the Act.

The issue as to whether the provisions of the Act, 1961 would be applicable to a private institution need not be gone into by us at this stage, inasmuch as even if it is presumed that the provisions of the said Act are attracted to a private institution and if the petitioner alleges contravention of the provisions of the Act, 1961, she can take recourse to the provisions of the said Act itself. So far as reinstatement of her services in the institution is concerned, she may file a civil suit.

We cannot issue a mandamus to a private institution to re-engage the petitioner.

Special appeal is dismissed.

In the facts of the case we, however, provide that if application is made before the Inspector under Section 17 of the Act, 1961 within two weeks from today along with certified copy of this order, no objection with regard to the delay, if any, in filing of the application shall be entertained. Issues of maintainability are also left open to be decided by the authority."

Pursuant to the order passed by the Special Appellate Court, the opposite party had decided the objection of the applicant on 06.04.2018, which has been brought on record along with rejoinder affidavit as Annexure -2.

As the order of the Special Appellate Court has been complied with, nothing remains to be adjudicated in the contempt proceedings.

Contempt application is misconceived and stands dismissed.

Order Date :- 24.7.2023

SK Goswami