Bombay High Court
Progressive Education Society And Ors. vs Nitin Krishnarao Nimabalkar And Ors. on 28 June, 2006
Equivalent citations: 2006(6)BOMCR165, 2006(4)MHLJ747
Author: R.M. S. Khandeparkar
Bench: R.M.S. Khandeparkar, S.R. Dongaonkar
JUDGMENT R.M. S. Khandeparkar, J.
1. Heard. Admit. By consent, heard forthwith. This appeal arises from the Judgment delivered by the learned single Judge on 22-3-2006 in Writ Petition No. 317 of 1996. The same is sought to be challenged on three counts : firstly, that the learned single Judge failed to consider the fact that one month's salary in lieu of one month's notice was offered to the respondent (No. 1) by Money Order after issuing the order of termination. Secondly, the learned single Judge failed to take note that the Tribunal did not afford the opportunity of being heard in the matter to the appellants/petitioners before the disposal of the appeal, and thirdly, the entire backwages have been ordered to be paid, ignoring the law on the point of grant of relief in that regard. Reliance is sought to be placed in the decision of the Apex Court in the matter of Uattar Pardesh State Brassware Corpn. Ltd. and Anr. v. Udai Narain Pandey .
2. Perusal of the impugned order discloses clear finding having been arrived at by the learned single Judge to the effect that the requirement of giving advance notice of one month or of paying one month's salary in lieu thereof is mandatory and its non-compliance will vitiate the order of termination and in the facts and circumstances of the case in hand, there was neither advance notice of one month nor there was payment of salary in lieu thereof along with the order of termination. Secondly, the parties had chosen to file written notes of arguments before the School Tribunal and, therefore, there was no question of further oral hearing in the circumstances. Thirdly, the appellants had failed to show the very basis or the materials on which they claim to have taken the action Under Section 5(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, hereinafter referred to as "the said Act". Fourthly, that the decision to terminate the respondent was taken by the authority who was not authorised to take such decision. Fifthly, the decision to terminate the services was for non-existent reasons. And, therefore, it is apparent that the exercise of powers Under Section 5(3) of the said Act was not bona fide. All the above findings are clearly borne out from the records.
3. The Section 5(3) of the said Act clearly provides that if in the opinion of the Management, the work or behaviour of any probationer during the period of his probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month's notice or salary of one month in lieu of notice.
4. In the case in hand, the notice of termination of services was issued to the respondent on 12-1-1991 and he was asked to hand-over the charge on the very day while informing him about the termination of his services. The notice neither disclosed nor made any reference to the payment of one month's salary in lieu of the notice for one month. Added to that the notice read thus :
You were appointed on the post of Clerk vide School Outward No. 831 dtd 10-1-1989 and you were resumed your duties on 14-1-1989. The Hon'ble Education Officer Primary, Zilla Parishad, Wardha vide its order No. Pry/An/Vs/590, dtd. 14-4-1989 had granted approval to the aforesaid appointment for two years probation from the date of joining. As there is unsatisfactory report submitted by the Head Master in respect of your working and behaviour during the aforesaid period and after considering upon the said report and other information and after taking decision by the School Committee, you are hereby informed that you should presume that your services came to an end at the end of 12-1-1991 onwards and you should hand-over complete charge to the Head Master.
5. Obviously in spite of clear requirement Under Section 5(3) of the said Act that the notice is required to be given one month in advance of the date of termination or at least salary of one month in lieu of such notice is to be paid to the probationer whose services are terminated in exercise of powers under the said Section, and in spite of the fact that the respondent was a probationer, neither one month's advance notice was issued nor the salary of one month in lieu of such notice was paid or tendered along with the order of termination to the respondent. The contention that such amount was offered by way of Money Order subsequent to the issuance of the order of termination, cannot amount to compliance of the mandatory requirement Under Section 5(3) of the said Act. Subsequent offer of payment does not amount to payment of salary of one month in lieu of such notice and this issue is well-settled by catena of decisions of this Court.
6. As regards the grievance regarding failure to give opportunity of being heard orally, the clear finding quoted above that the parties had chosen to submit written notes itself disclose that the parties had waived their right to address orally. Considering the same, the contention of the appellants that they were not offered the opportunity of being heard is totally devoid of substance and is an afterthought and, therefore, has been rightly rejected by the learned single Judge.
7. As regards the grievance relating to direction to pay the entire back wages, the finding that the appellants had failed to produce any evidence to establish the basis or the materials on which they had exercised the powers Under Section 5(3) of the said Act, to terminate the services of the respondent, coupled with the finding that the same discloses the reasons being non-existent for termination of the services and that, therefore, the exercise of power Under Section 5(3) of the said Act was not bona fide is also clearly borne out from the records. Indeed, failure on the part of the Management to justify the action Under Section 5(3) of the said Act, when such an action is challenged by way of an appeal before the Tribunal, would disclose that the decision to terminate the services lacked bona fide. The Management had neither established such reasons either before the Tribunal or before the learned single Judge nor even in the memo of the present appeal. There is no material to justify the action Under Section 5(3) of the said Act.
8. The Apex Court in Udai Narain Pandey's case (supra) had clearly held that:
No precise formula can be laid down as to under what circumstances payment of entire backwages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the Uttar Pradesh Industrial Disputes Act.
9. The decision of the Apex Court, therefore, clearly lays down that the order regarding the payment of backwages would depend on the facts and circumstances of each case and it should not be ordered mechanically without application of mind. In a case where the termination of services in exercise of powers Under Section 5(3) of the said Act is challenged before the competent authority, it would be the obligation of the Management to justify the action taken by it in that regard. Failure on the part of the Management in that regard would obviously disclose lack of bona fide in terminating the services of the probationer. It would evidently disclose that the employee was forbidden from performing and attending to his duties not on account of any mistake on the part of the employee but on account of unreasonable and arbitrary action on the part of the Management. In such circumstances, when the employee is forbidden from performing his duties for no fault on his part and entirely on account of arbitrary action on the part of the Management, certainly the employee would be entitled for the entire backwages.
10. It was sought to be contended that in the case in hand the order passed by the Tribunal was stayed during the pendency of the writ petition. Merely because by way of an interim order, the Tribunal's order was stayed during the pendency and hearing of the petition, that does not create any right in favour of the Management to contend that they would deny the backwages to the employee when the employee was not allowed to perform his duties not on account of any fault on his part but on account of unsustainable decision by the Management. It was also sought to be contended that the learned single Judge did not consider the issue as to whether the respondent was gainfully employed during the relevant period. Undisputedly, this issue was not raised either before the Tribunal or before the learned single Judge. It is too late for the appellants to raise such an issue in the Letters Patent Appeal.
11. For the reasons stated above, therefore, there is no case for interference in the impugned order passed by the learned single Judge and therefore the appeal fails and is rejected.