Bombay High Court
Smt. Asha Anil Patil vs Shri Madan Rajaram Bagwe & Others on 2 December, 1997
Equivalent citations: 1998(3)BOMCR657
Author: F.I. Rebello
Bench: F.I. Rebello
ORDER F.I. Rebello, J.
1. The petitioner by this petition impugns the orders/letter dated 17th April 1995 whereby the petitioner claim for salary has been rejected.
2. A brief narration of facts may be necessary to dispose off this petition.
The petitioner was appointed as Assistant Teacher in the School run by respondent No. 2 on 14th September, 1974. The petitioner was thereafter appointed as Head Mistress on 1st July 1977. Some allegations came to be made against the petitioner pursuant to which the petitioner filed a writ petition before this Court. The Court refused stay. The respondent No. 2 held an enquiry in respect of the charges against the petitioner. The Enquiry Officer found the petitioner guilty. On 26th July 1986 the petitioner was dismissed from service based on the said enquiry report. An appeal was filed by the petitioner. The Additional Municipal Commissioner further remanded !he appeal for enquiry to the Education Officer on 10th October, 1988. The Education Officer exonerated the petitioner of all the charges and directed reinstatement with full back wages. Respondent No. 2 preferred an appeal which was rejected.
On 28th September, 1989 another order of dismissal came to be passed in respect of other charges. Petitioner challenged the same by a writ petition which was dismissed by directing the petitioner to resort to the remedy available under Rule 20 of the Grant-in-Aid Code. On appeal being filed, the order of dismissal was quashed and the petitioner was directed to be reinstated as Head Mistress with full back wages. The said order came to be challenged by respondent No. 2 by writ petition. Stay was refused. The petitioner was thereafter asked to join as Assistant Teacher and not as Head Mistress. In the meantime respondent No. 2 had also preferred an appeal which was allowed. The petitioner preferred a petition against the said order.
The various petitions came up for hearing. In Writ Petition No. 3206 of 1989 filed by respondent No. 2 and another, the petition was disposed off in terms of the Minutes of Order dated 17th August, 1993. The said Minutes of Order were not signed on behalf ot respondent Nos. 3 and 4. The relevant clauses of the Minutes of the Order are as under :---
"2. Respondent No. 4 do pay to the petitioner Rs. 1,03.783.77 in full settlement of all her claims including salary and allowances, as shown in the statement hereto annexed.
3. In addition to the aforesaid amount of Rs. 1,03,783.77 the petitioner shall be entitled to the amount of Rs. 40,000/- deposited in Court by respondent No. 4 pursuant to the order dated 21 st September, 1990 on Notice of Motion No. 2174 of 1990 in this writ petition and withdrawn by the petitioner and the sureties and securities given in respect thereof are hereby discharged and the Prothonotary and Senior Master do release the petitioner from these sureties and securities and do return the same to her forthwith.
4. The petitioner shall also be entitled to the amount of Rs. 14,255.40 Ps. standing to the credit of Savings Bank Account No. 6284 in Ahmednagar Co-operative Bank Limited. Kalachowki, in which contributions to Provident Fund in respect of the petitioner have been deposited upto June, 1986.
5. Except as aforesaid, the petitioner has no claims against the respondents or any of them, financially or otherwise.
6. The respondent No. 4 shall be at liberty to apply to respondent No. 2 for Grants in respect of payments made and agreed to be made by respondent No. 4 to the petitioner and such applications be disposed off by respondent No. 2 in accordance with the Grant-in-Aid Code within three months of submissions thereof.
7. The petitioner shall be entitled to apply to respondent No. 4 for the balance of the full amount of her salary and dues amounting to a further sum of Rs. 1,43,783.77 ps. if she can persuade the 2nd respondent Corporation to pay to the 4th respondent grant equal to the above amount of Rs. 1,43,783.77 ps. without in any manner deducting of setting off the amount of such additional payment against any other additional part of Grant-in-Aid to respondent No. 4."
On the same day the other petitions which were pending also came to be disposed off. However, what is relevant from the said order is para 5 which reads as under:---
"5. Mr. Murthy appearing on behalf of the Corporation, however, submits that under Clause 7 of the Minutes of the Consent Order, it is stated that the employee shall persuade the Corporation to pay to the Institution the grant equal to the additional amount of Rs. 1,43.783.77 ps. He submits that the employee cannot directly approach the Corporation. He further submits that Clause 7 of the Minutes of the Consent Order is inconsis tent with Clause 2 as the amount mentioned therein is in full and final settlement of all the claims including salary and allowances. It may be clarified that the employee will forward her application for release of the additional amount of Rs. 1,43,783.77 ps. through the Institution. The society will give full cooperation in that regard to respondent No. 3 employee. Secondly, there is no inconsistency between Clause 2 and Clause 7, Clause 2 of the Minutes of the Consent Order indicates payment of Rs. 1,03,783.77 ps. which the employee accepts subject to her rights to claim the additional amount of permissible under the Grant in Aid Code. It is understood that the Corporation will decide the matter only in accordance with the law and will decide the application accord-
ingly. It may be clarified that the minutes of the Consent order have been filed in Writ Petition No. 2835 of 1989. The said minutes will also apply to Writ Petition No. 3206 of 1989". .
It seems lhat no order was passed in the matter of payment of the balance amount of Rs. 1,43,783.77 ps. and a Contempt petition came to be filed which was rejected by this Court on 7th June, 1996. While disposing off the Contempt petition this Court observed as under:
"If petition has any right to the sum of Rs. 1,43,783.77 Ps. then the petitioner must adopt other appropriate proceedings to enforce that right."
3. The petitioner's application which was before the respondent No. 3 came to be disposed off by order dated 17th April 1995. The respondent No. 3 held that neither the petitioner nor the respondent No. 2 society are entitled for any payment of arrears of salaries and dues under the Grant-in-Aid Code and hence their claim was rejected. While disposing off the said application, respondent No. 3 was also pleased to observe as under :
"In the instant case had the payment of arrears been made by the Abhyudaya Education Society, no difficulty would have arisen and the payment being by way of disbursement of Salary, the Society would have legitimately preferred claim for Grant-in-Aid.' Respondent No. 3 thereafter was pleased to observe that in the instant case as a settlement had been arrived at between the parties. And on account of the order of the Court in view of the settlement the petitioner was not entitled to claim the balance arrears from respondent No. 4. It was also observed that the grant has to be claimed for a particular year in terms of Rule 44 of the Grant-in-Aid Code. It is also pointed out that if the grant is not claimed the same lapses and that Grant-in-Aid Code does not envisage the payment of arrears or payment of grant for any previous year. It is further observed that if the Grant-in-Aid Code does not provide for payment of arrears, the Corporation cannot pay the arrears of salary. It is on this account that the petitioner's claim for arrears of salary has been rejected. The same contentions have been reiterated in the affidavit in reply filed on behalf of the respondent herein.
4. It is clear from the facts set out above that in so far as the first dismissal is concerned, the same was set aside and the petitioner was directed to be reinstated in service with full back wages. In so far as second order of dismissal is concerned, was again set aside and the petitioner was directed to be reinstated as Head Mistress with back wages on 22nd December, 1989. The Management had preferred an appeal against the order of the Education Officer which came to be allowed by order dated 10th July 1990. In the Writ Petition No. 2835 of 1989 the petitioner was allowed to resign from service. This Court clarified while disposing off the various writ petitions that the petitioner is deemed to be in service till 31st July 1993 on which date she has resigned and her resignation accepted by the Management. The Minutes of order are made part of the Oral Order. Respondent No. 2 agreed to pay the petitioner an amount of Rs. 1,43,783.77 Ps. in full settlement of all her claims against the respondent No. 2 including salary and allowance. Liberty was given to the petitioner to apply to respondent No. 4 for the balance of the full amount of salary and dues. The same was explained in the Oral Order dated 17th August, 1993 in Writ Petition No. 3286 of 1989 and other petitions. The learned Judge had therein observed that it is understood that the Corporation will decide the matter only in accordance with the law and wiil decide the application accordingly. What however is clear, is, that the petitioner's claim for full back wages had not been rejected in toto. From the Minutes of Order all that can be said is that in so far as respondent No. 2 was concerned, their liability was fixed and in respect of the balance amount the matter was left to respondent No. 4 to decide it according to law.
5. The question that has to be considered is whether the petitioner is entitled for the balance amount of wages. There were two orders of dismissal one which was set aside and the petitioner was directed to be reinstated with full back wages as far back as 10th October, 1988. Appeal preferred against that was rejected and in respect of the other petitions was admitted.
Grant-in-Aid Code of the respondent No. 4 provides for payment of Grant-in-Aid to schools which are recognised under the Grant-in-Aid Code. Grant-in-Aid is not a bounty. In fact the right to education upto the age of 14 years has now been recognised as fundamental right consequent to the judgment of the Apex Court in the case of Unni Krishnan J. P. v. State of A.P., . Even otherwise once the Management complies with the requirement of the Grant-in-Aid Code the respondents are bound to pay the same. Their refusal to pay would be arbitrary if the Management complies with the requirements of the Grant-in-Aid Code. As we have seen from the impugned order, the reason for denial is that the Management must first pay the amount to the teacher and then seek reimbursement and such reimbursement must be for the year involved otherwise the grant lapses.
Rule 44 is a Rule pertaining to procedure. It sets out that the Department will intimate to the Manager of the School the amount of grant sanctioned whereupon the Manager will then forward a bill of the amount to the Department. The amount then due is to be paid before 31st March of the year in which the grant is due. If the grant is not paid, it is liable to be lapse if not claimed within two months. Counsel informs that there are some amendments now by which the salaries are directly deposited in the Bank. The impugned order sets out that there is no provision for payment of arrears. The Authority which decided the representation has set out that if the amount had been claimed by respondent No. 2 there would have been no difficulty in making the payment as it would have been payment by way of disbursement of salary. In the affidavit in reply in para 7 the same position is reiterated. It is further set out that Clause 7 of the Minutes of the Order makes it clear that there is no compulsion on the respondents to pay to the petitioner alleged arrears of salary.
6. In sum and substance the major contention is that the amount is not payable as it has lapsed. A query was posed to the Counsel for respondent Nos. 3 and 4 as to what would be the situation in the event an order of dismissal which was confirmed by the Authorities under the Grant-in-Aid Code is set aside by this Court say after a lapse of 10 years. Can the Corporation then contend that no grants would be payable as the period has lapsed or is this Court prohibited from issuing a writ or a direction to that effect. Counsel on behalf of the respondents has been unable to answer this and rightly so because it cannot be the contention of the respondent Nos. 3 and 4 that though the Order of dismissal is set aside and the Management has complied with the provisions of Grant-in-Aid Code, the respondents are not bound to pay the grant merely because the period has lapsed. As pointed out the Grant-in-Aid Code was sanctioned by the Government in terms of section 62-C(3) of the Bombay Municipal Corporation Act. At any rate Rule 44 is the rule pertains to procedure. In the situation at hand and similar other situations where the rule has broken down and there are no other legal provisions taking away the right of the person aggrieved, this Court can always issue suitable directions. If the rule cannot be given effect to on account of the situation as set out earlier would it disentitle the Management to receive the grant or for that matter the teacher to receive the salary which is due and payable. Ultimately, what is due and payable is the salary grant. Therefore respondent Nos. 3 and 4 cannot plead helplessness in the matter of making payment under the Grant-in-Aid Code if otherwise the grant was payable. As pointed out earlier the only reason given in the impugned order is that time had expired and the grant had lapsed. In these circumstances, the petitioner, whose services were terminated by respondent No. 2, was denied reinstate ment and instead was allowed to resign from service cannot be denied salary because no claim was made by the Management within the time prescribed by Rule 44.
7. It is true as pointed out that respondent Nos. 3 and 4 were not parties to the minutes of the order, but they were parties to the oral order dated 17th August, 1993 in Writ Petition No. 3286 of 1989 where the minutes of the order are made part of the order. I have reproduced para 5 of the oral order. The learned Single Judge has clearly explained the minutes of order and has observed that Clause 2 of the minutes of the concerned order indicates payment of Rs. 1,43,783.77 ps. which the employee accepts subject to her rights to claim the additional amount permissible under the Grant-in-Aid Code. In other words what this Court held is that by signing the minutes of order the petitioner had never given up her right for the balance amount as can be understood from the observation of the learned Single Judge in para 5 of the said judgment. The Corporation was directed to decide the matter according to law. The only reason in refusing relief was that the period had lapsed and there was no provision in the Grant-in-Aid Code for making payment after the grant had lapsed. As already held this reason cannot be supported as procedure cannot be used to defeat legitimate rights, in the instant case salary which was payable to the petitioner. If the rule was not capable of being duly given effect to on account of the fact that the'order directing reinstatement has been passed later on, Rule 44 would obviously not apply. In such cases as already pointed out the rule has broken down and the respondent No. 4 suo moto can take a decision or this Court can give appropriate directions or relief.
8. In these circumstances, the impugned order dated 17th April 1995 is set aside. Respondent No. 4 is directed to pay to the petitioner the amount of Rs. 1,43,783.77 ps. It is made clear that considering what has been set out above, there is no question of granting any interest in respect of the said amount. Rule made absolute accordingly. In the circumstances of the case, there shall be no order as to costs.
9. Petition allowed.