Bombay High Court
B. L. Patil Tantra Niketan, (B. L.Patil ... vs The State Of Maharashtra Through Office ... on 14 August, 2024
2024:BHC-AS:32656
902-WP-5933-2019.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
rrpillai CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5933 OF 2019
1. Khalapur Taluka Shikshan Prasarak
Mandal through its Chairman/Secretary
Prashant S Mane having its office at
C/o. Janata Vidyalaya,Khopoli,
Taluka : Khalapur,
District : Raigad, Maharashtra
2. B. L. Tantra Niketan
(B. L. Patil Polytechnic) Khopoli
(Formerly known as Khopoli)
Polytechnic, Khopoli through its Principal
Prashant S. Mane having its office at
..... Petitioners
Taluka : Khalapur, District : Raigad
(Org. Respondent
Maharashtra - 410 203 Nos. 1 and 2
Versus
1. The State of Maharashtra
Through Office of Government Pleader
Civil Appellate Jurisdiction, Bombay High
Court, Mumbai
2. Director of Technical Education, having its (Original
office at: 49, Kherwadi,Aliyavar Jung Respondent No.3)
Road, Bandra (East), Mumbai-400 041
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3. Sujata Balasaheb Ghorpade
Aged 53 years, Occu : Service
An Adult Indian Inhabitant
residing at Suprabhat Sadan
Vrundavannagar, Khopoli
(Org.Appellant)
Taluka : Khopoli, District : Raigad
WITH
CIVIL APPLICATION NO. 1622 OF 2019
IN
WRIT PETITION NO. 5933 OF 2019
B. L. Tantra Niketan
(B. L. Patil Polytechnic) Khopoli
(Formerly known as Khopoli)
Polytechnic, Khopoli through its Principal
Prashant S. Mane ..... Applicant
Versus
1. The State of Maharashtra
Through Office of Government Pleader
Civil Appellate Jurisdiction, Bombay High
Court, Mumbai
2. Director of Technical Education, having its
Digitally
signed by
RAJESHWARI
office at: 49, Kherwadi,Aliyavar Jung
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date:
2024.08.14
Road, Bandra (East), Mumbai-400 041
19:07:55
+0530
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3. Sujata Balasaheb Ghorpade
Aged 53 years, Occu : Service
An Adult Indian Inhabitant
residing at Suprabhat Sadan
Vrundavannagar, Khopoli
..... Respondents
Taluka : Khopoli, District : Raigad
Mr. P. B. Shah a/w. Mr. K. P. Shah and Mr. Gunjan Shah for the
Petitioners.
Mr. A.I. Patel, Additional GP a/w. Ms. P. J. Gavhane, AGP for the State
- Respondent Nos. 1 and 2.
Mr. Narendra V. Bandiwadekar, Senior Advocate a/w. Mr. Vinayak R.
Kumbhar, Mr. Rajendra B. Khaire, Mr. Aniket S. Phapale i/b. Ms.
Ashwini N. Bandiwadekar for Respondent No. 3.
CORAM : GAURI GODSE J
RESERVED ON : 9th MAY 2024
PRONOUNCED ON : 14th AUGUST 2024
JUDGMENT:
1. Rule. Rule made returnable forthwith.
2. Learned AGP waives notice for respondents nos. 1 and 2, and Mr Bandiwadekar waives notice for respondent no. 3. In view of the order dated 24th April 2024 taken up for final disposal. 3/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 :::
902-WP-5933-2019.docx FACTS IN BRIEF:
3. This petition arises out of a common Judgment and Order passed by the School Tribunal allowing the separate appeals filed by four teachers of petitioner no. 2-school. Though the separate appeals were decided by a common Judgment and Order, in view of the submissions made on behalf of the petitioners, all four Writ Petitions are heard and decided separately.
4. The present petition arises out of Appeal No. 40 of 2016 filed by respondent no. 3 ("respondent"). Petitioner no. 2 is a polytechnic institution run by petitioner no. 1 - management. Petitioner no. 2 is a recognized and permanent unaided institution. Respondent was appointed as a regular lecturer with effect from 14th August 1986 by order dated 14th August 1986.
5. According to the respondent, she was appointed as a regular lecturer on a full-time basis with effect from 14th August 1986. Admittedly, the respondent continued on the same post and on the same pay scale from 14th August 1986. Respondent was also granted annual increments. The learned counsel for the respondent submitted 4/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx that the respondent's service book is, for the first time, produced in this Court. However, there is no dispute raised on maintaining her service book. Learned counsel for the petitioners submitted that the service book entries are only till 2012. A perusal of the list of documents dated 13th July 2014 annexed to the affidavit-in-reply clearly indicates that the respondent's service book was produced before the Tribunal.
6. By order dated 11th March 2016, the respondent's service was terminated by giving three months notice. The termination notice stated that the number of students had decreased over the last two to three years, and the management was not able to make payments. Hence, in view of the financial crisis, the respondent was given notice stating that her service would come to an end on the expiry of three months. The said order/letter intimated to the respondent that she would be granted EPF and gratuity as per the applicable rules.
7. Being aggrieved by the said order/letter, the respondent filed an appeal under Section 9 of The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 ("MEPS Act") before the School Tribunal challenging the order of termination and seeking reinstatement with full back wages. In the said appeal, the 5/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx respondent filed an application for interim relief, praying for a stay of the execution and implementation of the order dated 11th March 2016 passed by the petitioners. By order dated 2 nd July 2016, the School Tribunal stayed the implementation of the order/letter dated 11th March 2016 and directed the petitioners to continue the respondent in service during the pendency of the appeal. The said order was accepted by the petitioners.
8. Petitioner no. 1 - Management issued a letter dated 11 th July 2016 intimating the respondent that they are in the process of challenging the interim order dated 2nd July 2016 before this Court; hence, the notice period as per the termination notice dated 11 th April 2016 was extended for a further period of two months. However, the petitioners neither challenged the interim order passed by the School Tribunal nor complied with the directions.
9. The petitioners filed a written statement in the appeal and contended about opening a new polytechnic institution on the non- grant-in-aid pattern of the Government as per the Government Resolution dated 21st May 1983. The petitioners relied upon the said Government Resolution to contend that in view of Clause 11 of the 6/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx said Government Resolution, the Director of Technical Education would not interfere in the administrative and financial affairs of the management and thus taking into account implementation of the respective pay scales of their employees, the petitioners had taken a decision to terminate service of the respondent.
10. The petitioners relied upon the financial documents prepared by the Chartered Accountant and the bank details to contend that the petitioners were facing a financial crisis and, hence, had taken the decision to terminate the service of the respondent. The petitioners also contended that the respondent was appointed by the Principal of petitioner no. 2, though there was no resolution authorizing him to do so. Thus, the petitioners claim that the respondent was a temporary employee and not entitled to the benefit of a permanent employee. Hence, it was contended that the petitioners were entitled to terminate the temporary service of the respondent.
11. The Tribunal framed points for consideration on whether the respondent proved that she was illegally terminated by the petitioners and whether she was entitled to the relief as claimed. The Tribunal, after considering the rival contentions of the parties, allowed the 7/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx appeal and disbelieved the case of the petitioners that they were entitled to terminate the service on the ground as pleaded by them. The Tribunal held that the contents of the letter of termination mandated the procedure of retrenchment. However, the petitioners failed to follow the procedure laid down under Rule 26 of The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 ("MEPS Rules"), permitting the management to retrench the employees. The School Tribunal disbelieved the case of the petitioners that the respondent was appointed on a temporary basis and that the petitioners were entitled to terminate the service without following due procedure under the MEPS Rules. Thus, the School Tribunal allowed the respondent's appeal, and the order/letter of termination dated 11th April 2016 was declared illegal and thus was quashed and set aside. The petitioners were directed to reinstate the respondent with full back wages with consequential benefits. Hence, this petition by the management and the institution. SUBMISSIONS ON BEHALF OF THE PETITIONERS:
12. Learned counsel for the petitioners submitted that the Tribunal failed to take into consideration the nature of the appointment letter of 8/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx the respondent. He submitted that the procedure for appointment on a regular basis was not followed; hence, the respondent was not entitled to claim permanency. He submitted that the respondent was appointed on an ad-hoc basis for a fixed period. Hence, she was not entitled to permanency. Learned counsel for the petitioners further submitted that the respondent being a temporary employee, the petitioners were not required to follow any procedure as prescribed under the MEPS Act and MEPS Rules. He submitted that though the petitioners were not under an obligation to justify the letter of termination, the petitioners had intimated to the respondent that due to financial crisis the management had taken a decision to terminate the services. Learned counsel for the petitioners further submitted that all the necessary documents to support the contentions regarding the financial crisis faced by the petitioners were produced before the School Tribunal. He submitted that the School Tribunal did not properly appreciate the supporting documents produced by the petitioners.
13. Learned counsel for the petitioners further submitted that a perusal of the respondent's appointment order would show that it was a temporary appointment issued by the Principal, who was not 9/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx authorized to make any permanent appointments. Learned counsel for the petitioners further submitted that the School Tribunal failed to take into consideration the nature of the appointment of the respondent and, without recording any finding on whether the respondent was appointed on a permanent basis, allowed the appeal by holding that the termination was illegal. The School Tribunal decided four separate appeals filed by four teachers who were appointed on different dates by issuing different appointment orders. Hence, it was necessary for the School Tribunal to independently decide all four appeals by examining the nature of the appointment of all four teachers. He thus submitted that the School Tribunal committed a serious error in holding that the termination orders were illegal without examining the nature of the appointment of the respondent and the other three teachers who were appointed on different dates by different appointment orders.
14. Learned counsel for the petitioners referred to the observations in the impugned judgment with regard to the petitioners' submissions on the reduction in the number of students and the financial difficulties faced by the management. He submitted that the management had also received closure permission from the Director of the Maharashtra 10/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx State Board of Technical Education. He submitted that considering the reduction in the number of students and the financial crisis faced by the management, the respondent was offered alternate employment in another institution of the petitioner no.1. However, the respondent turned out to be a rebellious and ungrateful employee who failed to take into consideration the difficulties faced by the management. Learned counsel for the petitioners thus submitted that the School Tribunal erroneously referred to the rules applicable for the retrenchment of employees and set aside the order of termination.
15. Learned counsel for the petitioners also opposed the grant of back wages to the respondent. He submitted that the respondent failed to raise any pleading regarding whether she was unemployed during the period of termination. Hence, the respondent was not entitled to seek back wages. Learned counsel for the petitioners relied upon the Civil Application filed in this petition seeking leave to produce a copy of Resolution No. 2049 dated 25th February 2016 and the minutes of the meeting dated 25th February 2016, along with a letter dated 1 st March 2016. Learned counsel for the petitioners submitted that the letter dated 1st March 2016, and the minutes of the meeting indicate that the 11/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx Principal was not authorized to issue appointment orders; however, due to oversight, the documents were not produced before the School Tribunal. He thus submitted that the documents which are sought to be produced by way of Civil Application would show that the appointment order of the respondent was not on a permanent basis by following the necessary procedure prescribed under the MEPS Act and MEPS Rules framed thereunder.
SUBMISSIONS ON BEHALF OF THE RESPONDENT:
16. Learned senior counsel for the respondent submitted that the question of the nature of the appointment of the respondent was not the subject matter of the appeal before the School Tribunal. Learned counsel submitted that a perusal of the termination order/letter dated 11th April 2016 is issued by considering the respondent as a permanent employee. He submitted that since the respondent's services were terminated by accepting her as a permanent employee, the issue of deciding the nature of the appointment never arose before the School Tribunal. The petitioners did not terminate the respondent's service on the ground that she was a temporary employee. Hence, there was no substance in the argument raised on behalf of the petitioners that the 12/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx School Tribunal was required to decide the nature of the appointment of the respondent. He submitted that the contents of the termination order/letter clearly indicate that it is issued by giving three months notice and also indicating that the respondent would be entitled to EPF and gratuity as permissible in law. The said letter does not refer to the respondent as a temporary employee.
17. Learned senior counsel for the respondent submitted that the contents of the termination order/letter show that it was a notice under Rule 26 of the MEPS Rules that permits management to retrench employees. He submitted that Rule 28 of the MEPS Rules provides for the termination of temporary employees by issuing one month's notice. Hence, even if the respondent was to be treated as a temporary employee, there was no reason for the management to issue three months notice of termination. Once the management issued notice on the grounds of a reduction in the number of students and the financial condition of the management, the entire procedure prescribed under Rule 26 of the MEPS Rules was required to be followed. It is a well- established principle of law that without providing approval and without following due procedure under Rule 26, the management is not 13/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx entitled to retrench employees. The nature of the termination order/letter itself indicates that the respondent was a permanent employee. Hence, the School Tribunal was not required to examine the nature of the appointment of the respondent. In the absence of procedure being followed by the management for terminating the services of the respondent, the School Tribunal rightly allowed the appeal directing reinstatement with full back wages.
18. To support the directions issued for payment of full back wages, learned senior counsel for the respondent submitted that immediately on the filing of the appeal, the School Tribunal, by way of interim order, stayed the implementation of the termination order/letter. The School Tribunal also issued mandatory directions to continue the respondent in service. Though the management informed the respondent that the management intended to challenge the interim order, hence extended the period of termination by a further period of two months; however, even after the expiry of the period of two months, the petitioners failed to challenge the interim order passed by the School Tribunal. Hence, the respondent, who was deemed to have continued in service in view of the interim protection, was not required to submit any pleading as to 14/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx whether she was gainfully employed or not during the tenure of termination. In view of the interim order, the respondent was deemed to be continued in service. Hence, on setting aside the order of termination, the respondent is entitled to full back wages and continuity of service.
19. In support of the submissions for seeking back wages, learned senior counsel for the respondent relied upon the decision of the Hon'ble Supreme Court in the case of Deepali Gundu Surwase Vs Kranti Junior Adhyapak Mahavidyalaya (D.Ed) and Others 1. He submitted that once an order of reinstatement is granted, an employee is entitled to the same status as on the date of the termination of service. Hence, no fault can be found in the directions issued by the School Tribunal for the grant of back wages.
20. Learned senior counsel for the respondent opposed the prayers made in the Civil Application No. 1622 of 2019. He submitted that the documents sought to be produced by way of Civil Application are to support the contention of the management that the Principal was not authorised to issue the appointment order. However, the Civil 1 (2013) 10 SCC 324 15/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx Application is also affirmed by the Principal and not by the management. Thus, according to the learned counsel for the respondent, the contents of the Civil Application were contrary to the contentions raised in the Writ Petition.
21. The learned senior counsel for the respondent submitted that the additional documents referred to a letter dated 23 rd March 2016 received in the meeting held on 25 th February 2016. The minutes of the meeting record that the vote of thanks in the said meeting was given by the Chairman; however, the list of members present during the said meeting, as recorded in the minutes, does not record the presence of the Chairman. He thus submitted that the documents sought to be produced by way of Civil Application are got up documents, and the same would make no difference on the merits of the case.
22. Learned senior counsel for the respondent submitted that as held by the Hon'ble Supreme Court in the case of Deepali Gundu Surwase, once the termination order was set aside, the respondent would be entitled to back wages. Even otherwise, the termination order/letter was not only stayed by the School Tribunal by way of the 16/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx interim order, but mandatory directions were also issued to the petitioners to continue the respondent in service. Hence, according to the learned senior counsel for the respondent in view of the interim order passed by the School Tribunal, the respondent is deemed to have continued in the employment. Hence, she is entitled to full back wages as directed by the School Tribunal.
SUBMISSIONS IN REJOINDER ON BEHALF OF THE PETITIONERS:
23. On the submissions made by the learned senior counsel for the respondent under Rule 26 of MEPS Rules, the learned counsel for the petitioners submitted that the management sought to take permission by submitting all the necessary documents. He relied upon the closure permissions by the Director of Maharashtra State Board of Technical Education addressed to the management, and the letter dated 5 th May 2015 issued by the Government of Maharashtra addressed to the management. Learned counsel for the petitioners thus submitted that the documents produced by the management before the School Tribunal indicated that all the necessary permissions for closure were sought to be obtained by the management. Hence, in view of sub-rule 17/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx (9) of Rule 26, the management was entitled to terminate the service of the respondent. In support of his submissions, learned counsel for the petitioners relied upon the relevant pleading in the written statement filed before the School Tribunal that the respondent was offered to work on a lower pay scale; however, she refused the offer of the management. It is also sought to be contended that the resolution passed by the management would also support the contention regarding the alternate offer made to the respondent.
24. Learned counsel for the petitioners relied upon paragraph 11 of the written statement and contended that 42 employees of petitioner no. 1 had resigned from the services in view of the closure decision taken by the management. However, the respondent failed to cooperate with the management and filed an appeal with a malafide intention. Learned counsel for the petitioners thus submitted that the respondent was not entitled to seek any relief by relying upon Rule 26 of the MEPS Rules by contending that the notice was for retrenchment and not for termination of service.
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902-WP-5933-2019.docx ANALYSIS:
25. Though there is a dispute on the nature of the appointment of the respondent, it is admitted that the respondent was appointed on 14th August 1986 to the post of lecturer of chemistry. The order of appointment produced on record clearly shows that the same was not for a limited tenure. The terms and conditions of the appointment order indicate that the terms are in accordance with the schedule of MEPS Rules provided for issuing appointment orders on a regular basis on the permanent post. Thus, in view of the appointment order dated 14th August 1986, the respondent had continued in service for a period of 30 years till the date of the termination notice. The termination notice does not indicate that the respondent's service was terminated, as she was appointed on a temporary basis. The contents of the termination letter are in conformity with the requirement for intimation of retrenchment as contemplated under Rule 26. The order/letter of termination dated 11th March 2016 provides for a termination period of three months. The letter also indicates that the respondent would be entitled to EPF and gratuity. After the termination order was challenged before the School Tribunal, an interim order was passed on 19/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx 2nd July 2016 granting a stay to the implementation of the notice/order dated 11th March 2016 and mandatory directions were issued against the petitioners to continue the respondent in service during the pendency of the appeal. In reference to the said interim order, petitioner no. 1 issued a letter dated 11 th July 2016 to the respondent intimating an extension of the notice period by a further two months. Though the said letter stated that the management intended to challenge the interim order passed by the School Tribunal, admittedly, no steps were taken to challenge the interim order. Thus, the effect of the termination order/letter was stayed during the pendency of the appeal before the School Tribunal. The petitioners failed to challenge the said order and also failed to comply with the mandatory directions for continuing the respondent in service during the pendency of the appeal. Hence, learned counsel for the respondent is right in submitting that in view of the interim order passed by the School Tribunal, the respondent was deemed to have continued in service.
26. I do not find any substance in the arguments of the learned counsel for the petitioners that the School Tribunal failed to examine the nature of the appointment of the respondent. The order/letter of 20/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx termination does not treat the respondent as a temporary employee. In fact, the contents of the order/letter indicate that the respondent was always treated as a permanent employee, and hence, the notice was issued as contemplated under Rule 26. The contents of the notice show compliance with the initial notice required to be issued for the retrenchment of an employee. The management sought to support the termination by filing a written statement with all the necessary particulars required for following the procedure for retrenchment. Thus, the pleading of the petitioners indicates that the management did intend to follow the procedure for retrenchment; however, after issuing the initial notice, the management failed to take appropriate steps for the retrenchment of the respondent and sought to contend that the said letter was a letter of termination. The respondent, thus, correctly filed an appeal to challenge the termination letter dated 11th March 2016. It appears that the management decided to follow the procedure prescribed under Rule 26 for the retrenchment of an employee and thus issued the letter as contemplated under the Rules but later discontinued her service without following the mandatory procedure.
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27. In view of the rival contentions of the parties, the School Tribunal framed points for consideration regarding the illegal termination of the respondent. Thus, the letter dated 11th March 2016 was construed by the management not as a letter of retrenchment but as a letter of termination. Contents of the letter of termination clearly show that the respondent was a permanent employee of petitioner no.2-institution. The documents produced on record with regard to the service book also showed that the respondent was working as a permanent employee and given all the benefits, including increments and leave benefits of a permanent employee. Hence, I do not see any substance in the submissions made on behalf of the petitioners that the School Tribunal was required to determine the nature of the appointment of the respondent.
28. The petitioners' pleadings and the documents produced on record were to support the contention of the petitioners that the management, being in a weak financial position, was required to close down the classes and, hence, was unable to continue the service of the respondent. The arguments on behalf of the petitioners before the School Tribunal was that the provision of Rule 26 of the MEPS Rules 22/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx was not applicable, as the institution was an unaided institution. However, it was also argued on behalf of the petitioners that as per the provisions under Rule 26, only permanent employees might be retrenched from the service after giving three months notice on the grounds stated under the said Rules. The School Tribunal thus examined the arguments made on behalf of the petitioners that the Rule for retrenchment was not applicable to the institution. The School Tribunal held that the petitioners failed to produce any authentic document to show a reduction in the number of students. The Tribunal thus examined the contentions of the petitioners on merits on the grounds raised in support of the termination letter.
29. With regard to the petitioners' argument that the respondent was a temporary employee, the School Tribunal held that the said contention could not be appreciated for want of necessary pleadings. It was argued on behalf of the management that the respondent was a temporary employee, but the same remained to be mentioned in the appointment order. In view of the said argument on behalf of the petitioners, the School Tribunal held that the petitioners were not entitled to take shelter of the incapacity of payment of salary by 23/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx terminating the service of the respondent, who was a permanent employee. The School Tribunal thus examined the submissions made on behalf of the management to support the decision of termination and held that the management was not entitled to terminate the services of the respondent.
30. I find substance in the argument made on behalf of the respondent that if the respondent, for the sake of argument, is to be treated as a temporary employee, the management was under an obligation to issue notice of one month for terminating services of temporary employee as provided under Rule 28 of the MEPS Rules and if the respondent is accepted as a permanent employee, the management is not entitled to terminate the services on the ground of abolition of posts, without following the procedure provided under Rule 26 of the MEPS Rules. If the contents of the termination letter and the pleading of the petitioners are examined, the same amounts to a procedure being initiated for termination of services on account of the abolition of posts for which the procedure under Rule 26 is required to be followed. The contents of the letter of termination and the pleadings of the petitioners indicate that the respondent was always 24/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx treated as a permanent employee, and hence, notice as contemplated under Section 26 of the MEPS Rules was initiated. However, without completing the procedure as prescribed under Rule 26, the petitioners terminated the service of the respondent without following the prescribed procedure for termination. The learned senior counsel for the respondent correctly relied upon the decision of this court in the case of Bharat Education Society's Junior College of Commerce and Economics and Others vs. Shri Balaram Vembulu 2. In the said decision this court held that even if there is a reduction in the establishment due to a fall in the number of pupils, classes or divisions, the decision to retrench an employee cannot rest in the unilateral discretion of the management of a school. This court, thus held that prior approval of the competent authorities and following the procedure postulated by Rule 26 is mandatory. Thus, no fault can be found in the reasons recorded by the School Tribunal for declaring the notice of termination to be illegal and thus setting aside the same.
31. So far as the ground of objection on the directions for full back wages and consequential benefits are concerned, learned senior 2 2000 (1) Bom C. R. 367 25/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx counsel for the respondent is right in submitting that the implementation of the order of termination was stayed by way of the interim order and the School Tribunal directed the petitioners to continue the service of the respondent. Hence, the respondent was deemed to be in the employment with the petitioners. In the said circumstances, the respondent would be entitled to back wages. The aforesaid findings clearly show that the respondent was in service as a permanent employee for more than thirty years on the date of termination and that she was illegally terminated in gross violation of the statutory provisions and in breach of principles of natural justice. Nothing is produced on record to indicate that the respondent was gainfully employed.
32. The law with regard to the grant of back wages as settled by the Hon'ble Supreme Court in the decision of Deepali Gundu Surwase squarely applies to the present case. The legal principles settled by the Hon'ble Supreme Court in the decision of Deepali Gundu Surwase read as under;
" 21. The word "reinstatement" has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol. 2, 26/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx 3rd Edn., the word "reinstate" means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word "reinstatement" means the action of reinstating; re- establishment. As per Law Lexicon, 2nd Edn., the word "reinstate" means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word "reinstatement" means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam-Webster Dictionary, the word "reinstate" means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black's Law Dictionary, 6th Edn., "reinstatement" means:
"To reinstall, to re-establish, to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed."
22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order 27/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
"38. The propositions which can be culled out from the aforementioned judgments are:28/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 :::
902-WP-5933-2019.docx 38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.29/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 :::
902-WP-5933-2019.docx 38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to 30/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à- vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] .
38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal [(2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] that on 31/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] , [Surendra Kumar Verma v. Central Govt. Industrial Tribunal- cum-Labour Court, (1980) 4 SCC 443 : 1981 SCC (L&S) 16] referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
emphasis applied
33. The documents annexed to the Civil Application No. 1622 of 2019 are relied upon by the management to support the contention that the Principal was not authorised to issue the appointment order. Thus, the documents are sought to be relied upon to contend that the respondent was not appointed lawfully as provided under the MEPS Act and Rules framed thereunder and, thus, not entitled to permanency. The letter of termination was not issued by the management on the ground that the respondent was a temporary employee. The School Tribunal has thus dealt with the challenge to the termination letter that was issued by treating the respondent as a permanent employee. The pleadings and evidence on record show 32/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx that the respondent was working as a permanent employee and steps were accordingly taken by the management to terminate her services. Hence, the documents relied upon by way of the Civil Application are irrelevant at this stage in view of the controversy in the matter. Even otherwise, the contents of the application do not justify the non- production of the said documents during the hearing of the appeal before the Tribunal.
34. Learned counsel for the petitioners has placed reliance on the decisions of the Hon'ble Supreme Court in the cases of Hari Nandan Prasad and Another Vs Employer I/R to Management of FCI and Another3, Surinder Prasad Tiwari Vs U.P. Rajya Krishi Utpadan and Others4, State of Rajasthan and Others Vs Daya Lal and Others 5 and National Gandhi Museum Vs Sudhir Sharma 6. The said decisions were relied upon by the learned counsel for the petitioners to support the contention that the respondent was not a permanent employee of the petitioners. All the aforesaid decisions are on the illegal termination being violative of Section 25F of the Industrial Disputes Act, 1947, 3 (2014) 7 SCC 10 4 (2006) 7 SCC 684 5 (2011) 2 SCC 429 6 (2021) 12 SCC 439 33/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx regularisation of service in public employment, parity in payment of salary, and entitlement for regularisation on the ground of continuing in service in view of interim orders. Hence, the principles laid down in the said decisions are irrelevant so far as the controversy in the present petition is concerned. The present petition deals with the validity of the order of termination and the appeal filed under Section 9 of the MEPS Act. Hence, none of the decisions relied upon by the learned counsel for the petitioners are of any assistance to the arguments raised on behalf of the petitioners.
35. Learned counsel for the petitioners also relied upon the decision of this court in the case of Shreemati Nathibai Damodar Thakarsey Women's University Vs Ms Smita Govind Takale and Another 7. The issue under consideration in the said decision was about the appointment of the teacher as Shikshan Sevak and the appointment of a teacher on a temporary basis. In the present case, the issue is not with regard to the nature of the appointment of the respondent, as the petitioners had issued a termination letter by treating the respondent as a permanent employee. Hence, reliance on the said decision is 7 Writ Petition No. 10737 of 2019 and Writ Petition No.10645 of 2019 dated 7th May 2024. 34/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 :::
902-WP-5933-2019.docx also misplaced so far as the facts of the present case are concerned.
36. This petition is filed invoking powers under Articles 226 and 227 of the Constitution of India. The scope of interference under Articles 226 and 227 is a well-established principle of law. The legal principles with regard to the same are summarised by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty and Another Vs Rajendra Shankar Patil8. The Hon'ble Supreme Court has summarised the scope of interference under Article 227 of the Constitution of India. The relevant extracts from paragraph 49 are as under:
"49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(e) According to the ratio in Waryam Singh [AIR 1954 SC 215], followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is 8 (2010) 8 SCC 329 35/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 ::: 902-WP-5933-2019.docx vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
emphasis applied
37. In the present case, I do not find any illegality, infirmity, or manifest error in the impugned order. Facts of the case shows that the respondent is a victim of breach of principles of natural justice and gross violation of applicable laws. Hence, this is not a fit case to exercise the powers under Articles 226 or 227 of the Constitution of India.
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902-WP-5933-2019.docx
38. Hence, for the reasons recorded above, the petition is dismissed.
39. For the reasons recorded above, Civil Application No. 1622 of 2019 is also dismissed.
[GAURI GODSE, J.] 37/37 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 15/08/2024 11:10:35 :::