Bombay High Court
Bharat Education Society'S Junior ... vs Shri Balaraman Vembulu on 4 September, 2000
Equivalent citations: 2001(1)BOMCR367, [2001(88)FLR226]
Author: D.Y. Chandrachud
Bench: D.Y. Chandrachud
JUDGMENT D.Y. Chandrachud, J.
1. The respondent was employed as an Assistant Teacher in a Junior College which is conducted by the petitioners. The respondent had worked as an Assistant Teacher between April, 1989 and May, 1991. His services were terminated in May, 1991. On 15-7-1991, an appeal filed by the respondent came to be allowed by the School Tribunal which directed that the respondent be reinstated in service with continuity of service and full back wages. After the respondent was reinstated in compliance with the order passed by the School Tribunal, his status was altered from that of a full time employee to a teacher who would be engaged only on a clock-hour basis. The management of the petitioners had adopted the position that due to a reduction in the number of classes being conducted in the Junior College the respondent was placed as an employee on a clock-hour basis.
2. On 6-9-1991 and on 22-9-1991, the Deputy Director of Education directed the management to refrain from unilaterally closing down the classes in the Junior College and that permission ought to have been taken of the Deputy Director before closing down the classes. Despite the letters of the Deputy Director of Education, the respondent was continued as a teacher on a clock-hour basis. The grievance of the respondent was agitated in an appeal (Appeal No. 27 of 1991) filed before the School Tribunal which came to be allowed by the impugned order which is annexed at Exhibit N to the writ petition. The learned Counsel for the parties state that the certified copy of the order does not bear any date. By the impugned order, the Tribunal set aside the decision of the petitioners to treat the services of the respondent on a clock-hour basis with effect from September, 1991. The petitioners were directed to treat the respondent as a teacher on a full-time basis from September, 1991 and to pay to him the difference in emoluments. A direction has been issued to the State Government that the difference in back wages which is to be paid to the respondent should be deducted from the grant due and payable to the petitioners and be paid to the respondent directly.
3. In considering the correctness of the view which has been taken by the School Tribunal, regard must be had to the provisions of Rule 26 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, which have been framed in pursuance of the provisions of section 16 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Sub-rule (1), (2) and (9) of Rule 26 are material and are, therefore, extracted below:
"26. Retrenchment on account of abolition of posts:
(1) A permanent employee may be retrenched from service by the Management after giving him 3 months notice, on any of the following grounds namely :
(i) reduction of establishment owing to reduction in the number of classes or divisions;
(ii) fall in the number of pupils resulting in reduction of establishments;
(iii) change in the curriculum affecting the number of certain category of employees;
(iv) closure of course of studies;
(v) any other bona fide reason of similar nature.
(2) The retrenchment from service under sub-rule (1) shall be subject to the following conditions namely:
(i) The principle of seniority shall ordinarily be observed :
(ii) prior approval of the Education Officer in the case of primary and Secondary Schools or, of the Deputy Director in the case of Higher Secondary Schools and Junior Colleges of Education shall be obtained by the Management in each case of retrenchment including such cases in which the principle of seniority is proposed to be departed from and a senior member of the staff is proposed to be retrenched when a junior member should have been retrenched, stating the special reasons therefor;
(iii) The employees from aided schools, whose services are proposed to be retrenched shall be absorbed by the Education Officer in the case of Primary and Secondary Schools or by the Deputy Director in the case of Higher Secondary Schools and Junior Colleges of Education. The order of absorption of such employees shall be issued by registered post acknowledgment due letter and till they are absorbed the Management shall not be permitted to effect retrenchment on account of any reasons mentioned in sub-rule (1).
(3) In case, the fall in the number of pupils, classes or divisions affects the scale of the employee or his status, the facility of absorption admissible as per provisions of Clause (iii) of sub-rule (2) shall not be admissible to him and he shall have to work on the lower scale or lower post or part-time post, as the case may be. In the event of such an employee showing unwillingness to work on such a post, the authorities mentioned in Clause (iii) of sub-rule (2) shall permit the Management to retrench him after giving him three months notice or, as the case may be, after completion of the notice period if already given.
Sub-rule (1) of Rule 26 contemplates the reasons on the basis of which the services of a permanent employee may be retrenched. One of the reasons in Clause (i) of sub-rule (1) is that there is a reduction of the establishment owing to a reduction in the number of classes or divisions. A fall in the number of pupils resulting in the reduction of the establishment is also regarded as a ground for retrenching the services of a permanent employee in Clause (ii) of sub-rule (1). Sub-rule (2) of Rule 26 specifies the conditions which have to be observed before the services of a permanent employee can be retrenched. In retrenching a permanent employee, the principle of seniority has to be ordinarily observed. Apart from this, prior approval of the authorities specified in Clause (iii) of sub-rule (2) has to be taken. An additional requirement in the case of aided schools is laid down by the Clause (iii) of sub-rule (2) of Rule 26. This requirement is that the employee sought to be retrenched shall be absorbed in another educational institution. Until an order of absorption is issued and the employee is absorbed, the management of the institution wherein he is serving, shall not be permitted to effect retrenchment on account of the reasons which are specified in sub-rule (1).
3. Sub-rule (9) of Rule 26 is an exception to the application of the facility of absorption specified in Clause (iii) of sub-rule (2) of Rule 26. Sub-rule (9) postulates that in case the scale of the employee or his status is affected by the fall in the number of pupils, classes or divisions, the facility of absorption shall not be admissible to him. In such a case, the employee shall have to work on a lower scale, a lower post or on a part-time post, as the case may be. If the employee shows his unwillingness to work for such a post, then the authorities are empowered to permit the management to retrench the employee from service after giving a notice of three months or upon completion of the notice period, if the notice is already given.
4. A consideration of Rule 26 thus, shows 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. In the case of all schools, the principles on the basis of which the retrenchment is to be effected, are specified. The prior approval of the competent authorities of the Education Department is a mandatory condition. In the case of aided schools, the employee whose services are sought to be dispensed with is to be absorbed in an alternative establishment. In the exceptional case specified in sub-rule (9) where the facility of absorption is not admissible, the employee has to be given an opportunity of working on a lower scale or post or on a part-time post.
5. In the present case, it is abundantly clear that the procedure which is postulated by Rule 26 was evidently not followed. The Director of Education had drawn the attention of the management to this position and had consequently advised it against the unilateral decision to close down divisions or classes. The respondent was a permanent full-time employee. The decision of the petitioners to alter his status from that of a full-time employee into an employee engaged on a clock-hour basis without following the procedure prescribed by Rule 26 was therefore, illegal and no fault can be found with the order of the school Tribunal in that regard.
6. The learned Counsel appearing on behalf of the petitioners, confined his submissions to the direction of the Tribunal to the effect that the respondent be paid the difference in emoluments between what was paid to him as an employee on clock-hour basis and what was admissible to an employee engaged on a full-time basis. The learned Counsel appearing on behalf of the petitioners submitted that the respondent had been engaged in certain other educational institutions during the said period and consequently, the wages which had been earned by him ought to be set off in computing the difference in emoluments. On the other hand, it was submitted by the learned Counsel appearing on behalf of the respondent that the management of the first petitioner had duly permitted the respondent to engage in part-time employment in certain other institutions and this was permissible under the applicable conditions of service. The fact that the respondent was permitted by the management of the first petitioner to take alternative employment on a part-time basis and this was permissible has not been disputed on behalf of the petitioners.
7. That being the position, it would, in my view, not be appropriate to direct that the wages which have been earned by the respondent by engaging in part-time work which, in any event, he would have been entitled to render even if he was employed on a full-time basis, be deducted in computing the difference of emoluments. However, the wages which have been earned by the respondent by working on a full-time basis in any other institution during the relevant period shall be deducted in determining the difference in emoluments to be paid to the respondent.
8. I do however, find substance in the grievance of the petitioner in so far as the direction issued by the Tribunal to the State Government is concerned. The State Government was not a party to the proceedings before the Tribunal. The Tribunal was not justified in issuing such a direction. Consequently, in so far as the direction to the State Government is concerned, it shall stand set aside and be substituted by a direction to the petitioners to pay the difference in emoluments to the respondent.
9. The learned Counsel appearing on behalf of the petitioners states that the direction of the Tribunal would be duly complied with, but a reasonable amount of time be granted to the petitioners to do so. In the circumstances, in so far as the payment of the difference in emoluments is concerned, this shall be made by the petitioners to the respondent within a period of four months from today. Subject to the aforesaid modification, I do not find any reason to interfere with the order of the School Tribunal. The petition, is accordingly, rejected.