Orissa High Court
Manoranjan Patnaik & Ors vs National Thermal Power .... Opposite ... on 4 April, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.20767 of 2015
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Manoranjan Patnaik & Ors. .... Petitioners
-versus-
National Thermal Power .... Opposite Parties
Corporation Limited & Ors.
For Petitioners : Mr. B.P. Das, Advocate
For Opp. Parties : Mr. B.S. Tripathy 1, Advocate
(Opp. Party Nos. 1 & 2)
Mr. G. Mishra, Sr. Advocate
along with
Mr. H.S. Deo, Advocate
(Opp. Party Nos. 3 & 4)
Mr. D.K. Panda, Advocate
(Opp. Party No. 5)
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 10.01.2024 and Date of Judgment: 04.04.2024
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Biraja Prasanna Satapathy, J.
23 nos. of Petitioners initially filed the present writ petition inter alia with the following prayer:-
// 2 // "It is therefore, prayed that this Hon'ble Court may graciously be pleased to admit the writ petition, issue notice to the Opposite Parties and issue "Rule NISI" in the nature of a writ of mandamus/certiorari or any other writ(s) calling upon the Opposite Parties to show cause as to why the Petitioners shall not be allowed to continue in their respective posts till their superannuation, irrespective of the chance in the management of the Opposite Party No. 4-School.
And may further be pleased to direct the Opposite Party No. 1 & 2 to disburse the salary of the Petitioners in accordance to the guidelines of CBSE in this respect, in the interest of justice, And pass any other order/orders, direction/directions, writ/writs as this Hon'ble Court deem fit and proper;
And for which act of kindness, the Petitioner shall as in duty bound ever pray."
2. Be it noted that during pendency of the matter, 19 of the Petitioners having withdrawn from the case at different point of time, the present writ petition is confined to only 4 nos. of Petitioners.
3. It is the case of the Petitioners, in brief that on 08.07.1989 National Thermal Power Corporation Ltd.-Opp. Party No. 1 (in short NTPC) through its Talcher Super Thermal Power Project Unit - Opp. Party No. 2 (in short TSTPPU) entered into an agreement with the Association of Handmaids of Mary - Opp. Party No. 3 (in short the Society) to run and manage the English Medium School at Deepsikha Township, Kanhia, Talcher for a period of 10 years.
3.1. The agreement so executed on 08.07.1989 was further renewed for another period of 20 years vide agreement executed on 10.11.1999 Page 2 of 43 // 3 // under Annexure-1. The agreement was so executed in between Opp.
Party Nos. 1 & 3 enabling Opp. Party No. 3, which is a Society registered under the Societies Registration Act, 1860 to run and manage the English Medium School at the project site of TSTPPU at Deepsikha Township in Kanhia, Talcher. Relevant extract of the agreement morefully described in Para 2(i), 4 to 10 and 12 to 19 are reproduced hereunder:-
"2(i) A School Managing Committee shall be constituted taking into consideration the requirement of CBSE Board regulations and duly representing the NTPC and Association as follows:-
(a) The Project Head shall be the Chairman of the Committee.
(b) One of the nominees of the Association shall be the Vice Chairperson and shall act as Chairperson in the absence of the Project Head.
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4. NTPC will provide school building consisting of class rooms, rooms for other purposes required to be provided in the school like Music room, craft room, indoor games, common room, auditorium, hall, play ground and any other areas that the Managing committee may deem fit for providing for quality education with light, electricity, toilets and drinking water facilities for the students and staff of the school upto Class-XIT.
5. NTPC will provide furniture, audio visual, play materials and other teaching aids as deemed necessary by the management of NTPC for the upkeep of the standard of the school NTPC at its discretion may inspect these items through its authorised representative whenever it is fix felt necessary. These materials will be in the custody of the school only as long as they run the school. Afterwards they shall return the above materials to the authorised representative of NTPC in whatever condition on termination of the contract NTPC shall also provide repair, maintenance of the school building, furniture, Page 3 of 43 // 4 // equipments, security, sanitation, and cleanliness, horticulture etc. to manage the school.
6. For the time being NTPC will provide 3 nos. of Type III quarters, till the construction of the convent with the requisite facilities and amenities as may be required nearer to the school premises.
Electricity and water shall be provided by NTPC free of cost.
7. Suitable residential accommodation with water and electricity facilities will also be provided to teaching (other than sisters) and non-teaching staff in township area of NTIC Rent and electricity will be charged at the rater an applicable to employees of NTPC.
8. The Sisters and the staff (both teaching and non-teaching) and their dependents shall be provided free medical facilities only at the NTPC Health Center at site. However, NTPC will not reimburse cost of medicines bought or chartes for medical/surgical treatment obtained outside Recreation and transport facilities will be provided as available at site as per rules applicable to NTPC Employees.
9. NTPC will provide a place of worship to the Catholic Doicese of Sambalpur in the permanent township which will be as closely situated as possible to the permanent school building NTPC will provide conveyance for the sisters to go to Talcher to attend Mass on Sundays and two days a week and on special occasions or alternately, the same shall be given to a priest to come and offer Holy Mass at Project site especially on Sundays. Free transport facility shall also be provided to the school as and when required in connection with the school activities as well as for the sisters to come to the head quarters occasionally.
10. The school is open to all, irrespective of caste, creed and social back around. In the matter of admission, school will give first priority to the children of the employees of NTPC and the next priority will be given to all the agencies working for NTPC at site and to others, subject to availability of seats on merits basis.
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12. The school will charge fees as decided by the School Managing Committee with the consent of the HTPC from time to time Further the Principal St. Mary's School in consultation with the NTPC/Managing Committee may extend fees concession to poor/ deserving students. Any revision from time to time will be decided by the Managing Committee with the consent of NTPC.
Page 4 of 43// 5 //
13. NTPC will compensate to the extent of shortfall in the realization of fees, However, the modalities of payment of grants and the quantum there of for the running of the school shall be decided by the Management of NTPC from time to time as per the recommendation of School Managing Committee.
14. NTPC will provide accommodation and furniture for library and give appropriate grant every year for year for building up and developing library in which case the school management will not charge library fees from the students. The need for and amount of subsidy will be reviewed based on the requirement of the library by the Managing Committee from time to time.
15. That NTPC will provide Science demonstration laboratory and full fledged Physics, Biology, Chemistry Laboratory and computers with peripherals as per the requirement of CBSE syllabus and also provide suitable grant per annum for these laboratories in which case the school management will not collect the laboratory fees from students. This subsidy will be reviewed from time to time. as and when need arises by the Managing Committee Caution money deposit shall be charged from Class-IX upward which is refundable.
16. That RTTC will provide suitable facilities/equipments for development of games/sports and other extracurricular activities and provide suitable orant per annus in which case the students will not be charted the games fee. The subsidy will be reviewed from time to time as and when need arises by the Managing Committee,
17. (i) The school shall submit claims in the form prescribed by NTPC, In respect of funds required every quarter in advance and such claims shall indicate among other particulars the total budget expenditure for the year, the cumulative actual expenditure upto previous month after adjusting the unspent amount out of the advance drawn during the previous quarter. The School shall as far as practicable spend within the budgeted expenditure NTPC shall pay within 7 days from the date of receipt of the claim from the school, the amount requisitioned by the school.
17. (ii)Annual audit of the school accounts and relevant records shall be done by the Auditor appointed by school Managing Committee provided by NTPC and a copy of the auditor's report shall be submitted by the principal to F & A and P & A department of the NTPC at the end zaak of each academic session.
Page 5 of 43// 6 //
18. Salary for the teaching and non-teaching staff will be paid according to the scale prescribed by the Govt. of India as per the CBSE pattern.
19. The school shall open a Bank Account All fees and fines collected from the students of the school and all grant received from NTPC shall be deposited in this account and the current and running expenses shall be met with from this account Principal and the Treasurer of the school shall be empowered to operate the Bank Account for smooth running of the school.
Annual audit of the school accounts, books, journals etc. shall be done by the representative to be provided by NTPC and Annual report of the school shall be submitted by principal to F & A and P & A Department of NTPC at the end of each academic session."
3.2. As further provided in Para 22 of the agreement, any of the Parties if wants to withdraw the obligation, it may do so by giving one year notice in writing either side with due regard to the interest of the other Party.
3.3. It is contended that in terms of the agreement so executed in between Opp. Party Nos. 1 & 3 under Annexure-1 and basing on the advertisement issued by Opp. Party Nos. 1 & 4 vide Annexure-2 series, Petitioners herein were appointed as teaching and non-teaching staffs of the school.
3.4. It is contended that while so continuing in terms of the order of appointment issued by the School, Petitioners in the year 2015 when came to know from reliable sources that Opp. Party No. 1 has terminated the agreement so executed with Opp. Party No. 3 under Page 6 of 43 // 7 // Annexure-1, Petitioners apprehending their termination approached this Court with the prayer as made in the writ petition. This Court while issuing notice of the matter vide order dtd.23.11.2015 passed an interim order to maintain status quo with regard to the posts held by the Petitioners. The said interim order was allowed to continue and it was made absolute vide order dtd.04.10.2016.
3.5. It is contended that during pendency of the writ petition when with change of management, Regional Directorate, DAV Institutions, Odisha Zone-I issued a notice on 29.02.2016 inviting applications to fill up various teaching posts in the school in question, basing on the application made by the Petitioners, DAV Institutions, Regional Directorate, Odisha Zone-I was impleaded as Opp. Party No. 5 vide order dtd.10.03.2016 so passed in Misc. Case No. 3891 of 2016. This Court while considering the prayer of the Petitioners to stay the selection process so initiated by Opp. Party No. 5, on dtd.29.02.2016, passed another order on 10.03.2016 by holding that selection in terms of notice dtd.29.02.2016 shall be subject to result of the writ petition.
It is not out of place mentioned here that in the MOU signed by Opp. Party Nos. 1 & 2 with Opp. Party No. 5, Clause 3.3 of the MOU reads as follows:-
Page 7 of 43// 8 // "3.3 That prior to taking over the management of St Mary's School, Deepshikha, Kaniha sponsored by the NTPC Kaniha by DAVCMC, the payment of all dues i.e. Provident Fund, Gratuity, Salary disbursement including arrears if any, etc., for the period of the earlier services of the existing staff of St Mary's School, Deepshikha, Kaniha will be borne by the Association of Handmaids of Mary or the Enterprise and will not be the liability of the DAVCMC, New Delhi in anyway." (Emphasis added).
3.6. However, it is contended that because of change of the Management from St Mary to DAV Board, Petitioners were not allowed to continue in the school w.e.f. the Academic Session 2016-17 on the face of the interim order passed by this Court on 23.11.2015.
Petitioners were put to such nature of harassment because of the illegal action of Opp. Party No. 1 in terminating the agreement with Opp.
Party No. 3 without protecting the interest of the Petitioners. Since in view of the agreement executed in between the Opp. Party Nos. 1 & 3 under Annexure-1, Opp. Party No. 1 is the Principal employer and since because of the illegal action of Opp. Party No. 1 in terminating the agreement, Petitioners could not continue beyond the Academic Session 2015-16, Petitioners are eligible and entitled to get the benefit as prayed for in the writ petition.
3.7. It is contended that by the time Opp. Party No. 5 came into picture w.e.f. the Academic Session 2016-17, all the Petitioners had also Page 8 of 43 // 9 // rendered more than 10 years of service and accordingly eligible to get the benefits as prayed for.
4. Mr. B.S. Tripathy, learned counsel appearing for Opp. Party Nos. 1 & 2 on the other hand made his submission basing on the stand taken in the preliminary counter affidavit as well as further affidavit filed by Opp. Party Nos. 1 & 2 on 02.03.2016 and 10.03.2016 respectively. Mr. Tripathy vehemently contended that Petitioners are not employees of NTPC and there is no existence of any master-servant relationship between the Petitioners vis-a-vis Opp. Party Nos. 1 & 2. Petitioners are teaching and non-teaching staff and employees of St. Mary's School, Deepsikha, Kanhia - Opp. Party No. 4, functioning under Opp. Party No. 3- Society. All the Petitioners are appointed by Opp. Party No. 4, which is a school run by O.P. No.3. It is accordingly contended that writ petition against Opp. Party Nos. 1 & 2 is not at all maintainable.
4.1. It is also contended that in terms of the agreement executed initially on 29.11.1989 and subsequent agreement executed on 10.11.1999 under Annexure-1, Opp. Party No. 3 though was permitted to run an English Medium School in its township at Deepsikha in Kaniha, but Petitioners having being appointed by the Management of St. Mary at different point of time, Opp. Party Nos. 1 & 2 are not liable Page 9 of 43 // 10 // in any manner whatsoever, with regard to the claim made by the Petitioners in the present writ petition.
4.2. It is contended that after termination of the agreement in terms of the notice issued by Opp. Party No. 1 on 10.07.2015 vide Annexure-
A/1, O.P. No.1 requested the Regional Director of DAV Institutions, Odisha Zone-I to submit its formal offer for running of the school under the management of DAV society. Subsequently, vide letter dtd.12.06.2015 under Annexure-B/1, Opp. Party No. 3 was requested to hand over the school building and all its assets before beginning of the Academic Session 2016-17. Thereafter, Opp. Party No. 1 entered into a fresh agreement with the management of DAV on 20.01.2016 vide Annexure-C/1. After execution of such fresh agreement with Opp.
Party No. 5, not only Opp. Party No. 4 issued intimations to the Petitioners regarding closure of the school run by Opp. Party No. 3 vide notice dtd.18.02.2016, but also a circular was issued by Opp. Party No. 1 on 22.02.20216 under Annexure-E/1, informing all concerned regarding taking over of the management of the school by the DAV Management.
4.3. It is also contended that after being issued with the notice of withdrawal on 10.07.2015 vide Annexure-A/1, Opp. Party No. 3 vide letter dtd.12.07.2015 under Annexure-J/1, clearly intimated that the Page 10 of 43 // 11 // school has no problem to settle the outstanding dues of the teachers and staffs engaged by St. Mary's School. But the problem is only with regard to settlement of the gratuity. After issuing the letter dtd.12.07.2015 under Annexure-J/1, Opp. Party No. 3 raised a demand of Rs. 1,56,89,588/- from Opp. Party No. 1 vide letter dtd.16.08.2015 under Annexure-K/1. The said demand was issued to Opp. Party No. 1 for settlement of the outstanding dues of the Petitioners and other employees of the school because of the change of management. It is also contended that after receipt of the demand from Opp. Party No. 3, Opp. Party No. 1 vide letter dtd.16.02.2017 under Annexure-L/1 requested Opp. Party No. 4 to keep ready various documents for verification with regard to the claim made by Opp. Party No. 3.
4.4. It is contended by learned counsel appearing for Opp. Party Nos. 1 & 2 that in terms of the agreement and the demand made by Opp. Party No. 3 in its letter dtd.06.08.2015 under Annexure-K/1, the matter was settled with due payment of the amount in question in favour of Opp.
Party No. 3 for settlement of the dues of the Petitioners and other teaching and non-teaching staff, who were earlier continuing in the school run at Deepsikha Township under the aegis of St Mary. It is accordingly contended that Opp. Party Nos.1 & 2 has got no further liability with regard to the claim made by the Petitioners in the present Page 11 of 43 // 12 // writ petition and the demand raised by O.P. No.3 vide Annexure-K/1 has been satisfied.
5. Mr. G. Mishra, learned Sr. Counsel along with Mr. H.S. Deo, learned counsel appearing for Opp. Party Nos. 3 & 4 contended that in terms of the agreement executed in between the Opp. Party Nos. 1 & 3, Opp.
Party No. 3 run its school at Deepsikha Township and appointed Petitioners in the school run by Opp. Party No. 4. It is contended that in terms of the provisions contained under Para 22 of the agreement dt.10.11.1999 under Annexure-1, Opp. Party No. 1 when issued the notice expressing its intention to terminate the agreement and Opp.
Party No. 5 took over the Management of the school on 10.03.2016, the services of the present Petitioner's came to an end in terms of the stipulation contained in the order of appointment issued in favour of the Petitioners.
5.1. It is contended that as provided under Clause 14(a) of the agreement executed by opp. Party No. 3 with its employees, the services of all the employees appointed at St. Mary's School, Deepsikha will come to an end on termination or expiry of the contract between NTPC and the Association of the Handmaids of Mary, leading to the closure of St. Mary's School, Deepsikha either in toto or part thereof. It is contended that since Opp. Party No. 1 terminated the Page 12 of 43 // 13 // agreement with Opp. Party No. 3 and the DAV Management took over the school w.e.f.10.03.2016, all the Petitioners were issued with notices by Opp. Party Nos. 3 & 4 on different dates prior to 10.03.2016 indicating therein that employment of the Petitioners comes to an end with the closure of St Mary's School.
5.2. It is however contended that in order to settle the legitimate dues of the Petitioners though vide letter dtd.06.08.2015 under Annexure-K/1 to the affidavit filed by Opp. Party Nos. 1 & 2, the Management of Opp. Party No. 3 raised a demand of Rs. 1,56,59,588/-, but Opp. Party No. 1 has not yet settled the payment in terms of the provisions contained under Clause 15 & 18 of the agreement dtd.10.11.1999 under Annexure-1. Because of that Opp. Party No. 3 is not in a position to settle the claim of the Petitioners.
6. Mr. D.K. Panda, learned counsel appearing for Opp. Party No. 5 on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No. 5. It is contended that in terms of the agreement executed with the Opp. Party No.1, Opp. Party No. 4 while so running the School under the aegis of Handmaids of Marry, basing on the letter issued by the Opp. Party No. 1 on 12.06.2015, DAV Management took over the school w.e.f. the Academic Session 2016-17. After taking over the school in question Page 13 of 43 // 14 // basing on the notification issued by the DAV Management on 29.02.2016 though a no. of teaching and non-teaching staff working under Opp. Party No. 4 participated in the selection process and some of them were also appointed by the Management of DAV, but Petitioners never participated in the selection process and accordingly they were not appointed after change of the Management of the school in question. It is accordingly contended that O.P. No.5 has nothing to do with the claim of the petitioners.
7. Considering the submissions made by the learned counsel appearing for the Parties and the demand made by Opp. Party No. 3 in its letter dtd.06.08.2015 under Annexure-K/1 to the affidavit of Opp. Party No. 1, this Court passed the following order on 08.12.2023 and 13.12.2023 to the following effect:-
"08.12.2023
2. In course of hearing learned counsel for the Petitioners contended that Petitioners claim be confined with regard to payments as due and admissible to them including gratuity and provident fund.
3. Mr. Das, learned counsel appearing for the Petitioner brought to the notice of the Court further affidavit filed by the authorities of NTPC on 10.03.2016.
Basing on the stand taken in the affidavit dt.10.03.2016, it is contended that Handmaids of Mary made a request to the authorities of N.T.P.C to release shortfall amount vide letter dtd.06.08.2015 under Annexure-K/1 to the affidavit. Subsequently vide letter dtd.16.02.2016, authorities of NTPC requested the Page 14 of 43 // 15 // Principal St. Mary School, N.T.P.C, Kahina to provide certain further documents to consider the request so made by Handmaids of Mary.
4. In course of hearing, Mr. Tripathy, learned counsel appearing for the N.T.P.C contended that the request as made by Handmaids Mary on 06.08.2015 has been complied by NTPC with release of the shortfall amount. Since in the record, nothing is found as to whether basing on the request made by Handmaids of Mary, shortfall amount has been released as contended, learned counsel for the NTPC and Mr. Gautam Mishra, Sr. Advocate appearing for the St. Mary School are directed to obtain instruction as to whether the amount of shortfall has been released by NTPC and so received by St. Mary School/Handmaids Mary.
5. As requested by both the counsels, list this matter on 13.12.2023 under the heading."
Xxx xxx xxx "13.12.2023
2. Pursuant to the order passed by this Court, Mr. B.S. Tripathy, learned counsel appearing for the NTPC produced copy of letter dtd.01.03.2017 so issued by the Corporation to the President, Handmaids of Marry and another letter issued by Handmaids of Mary on 30.01.2017. Basing on the two letters, learned counsel for the Corporation contended that the short-fall amount as raised by the Handmaids of Mary has been paid. But this Court found nothing from the communication dtd.01.03.2017 regarding compliance of the demand so raised by Handmaids of Mary in its letter dtd.06.08.2015.
3. Mr. Tripathy, learned counsel appearing for the NTPC prays for some time to file a comprehensive affidavit showing compliance of the demand made by the Handmaids of Mary vide letter dtd.06.08.2015 on the next date.
4. Mr. G. Mishra, learned Sr. Counsel appearing for the Handmaids Mary made a submission that if the Petitioner Nos.2 & 4 will agree, Page 15 of 43 // 16 // then the gratuity amount as due and admissible to them, can be paid by way of Demand Draft in Court.
5. Mr. Tripathy, learned counsel for the NTPC is directed to file an affidavit as contended before 20.12.2023.
6. Mr. Mishra, learned Sr. Counsel is also directed to come prepared with the Demand Draft in favour of the Petitioner Nos.2 & 4 with regard to their entitlement towards gratuity.
List this matter on 20.12.2023.
7.1. Pursuant to the order passed by this Court on 13.12.2023, a further affidavit was filed by Opp. Party Nos. 1 & 2 on 19.12.2023. Copy of the said affidavit be kept in record. Basing on the stand taken in the affidavit, Mr. B.S. Tripathy, learned counsel appearing for Opp. Party Nos. 1 & 2 contended that after termination of the agreement with Opp.
Party No. 3, Opp. Party No. 2 handed over the possession of the school to O.P. No.5 on 31.03.2016. With regard to liability of Opp. Party No. 1, as provided under Clause 13 of the agreement, Opp. Party No. 1 is liable to compensate to the extent of short fall in the realization of fees.
It is contended that in terms of such provisions contained under Clause 13 of the agreement, Opp. Party No. 1 has remitted an amount of Rs.3, 44,350/- on 31.03.2016 towards short fall of the tuition fee and Rs.1, 75,000/- towards administrative charges till March, 2016 on 18.04.2016. Thereafter, when Opp. Party No. 3 raised a further demand of Rs.25,00,000/- towards administrative charges vide letter dtd.30.01.2017 under Annexure-R/1, Opp. Party No. 1 submitted its Page 16 of 43 // 17 // reply on 01.03.2017 vide Annexure-S/1. In the said letter dtd.01.03.2017 it was clearly intimated to Opp. Party No. 3 that the demand towards administrative charges up to March, 2016 has since been cleared with payment of Rs.1,75,000/- on 18.04.2016 and Opp.
Party No. 1 has no further liability towards administrative charges. It is contended that after being communicated with the letter dtd.01.03.2017 under Annexure-S/1, no further letter has been made by Opp. Party No. 3 raising any further demand.
7.2. Mr. Tripathy lastly contended that since Petitioners are employees of Association of Handmaids of Mary, Opp. Party Nos. 1 & 2 are not liable to make payment towards any claim of the Petitioners. In support of his aforesaid submissions, learned counsel appearing for Opp. Party Nos. 1 & 2 relied on the following decisions of the Hon'ble Apex Court:
1. Md. Abdul Kadir & Anr. Vs. Director General of Police, Assam & Ors., (2009) 6 SCC 611
2. National Aluminium Co. Ltd. & Ors. Vs. Ananta Kishore Rout & Ors. (2014) 6 SCC 756 7.3. Hon'ble Apex Court in the case of Md. Abdul Kadir in Para 15 has held as follows:-
"15. On completion of the project or discontinuance of the scheme, those who were engaged with reference to or in connection with such Page 17 of 43 // 18 // project or scheme cannot claim any right to continue in service, nor seek regularisation in some other project or service. [See Bhagwan Dass v. State of Haryana [(1987) 4 SCC 634 : 1988 SCC (L&S) 24 : (1987) 5 ATC 136] , Delhi Development Horticulture Employees' Union v. Delhi Admn. [(1992) 4 SCC 99 : 1992 SCC (L&S) 805 : (1992) 21 ATC 386] , Hindustan Steel Works Construction Ltd. v. Employees' Union [(1995) 3 SCC 474 : 1995 SCC (L&S) 702 : (1995) 29 ATC 592] , U.P. Land Development Corpn. v. Amar Singh [(2003) 5 SCC 388 : 2003 SCC (L&S) 690] , Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra [(2005) 5 SCC 122 :
2005 SCC (L&S) 628] , State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , Indian Council of Medical Research v. K. Rajyalakshmi [(2007) 2 SCC 332 : (2007) 1 SCC (L&S) 627] and Lal Mohammad v. Indian Railway Construction Co. Ltd. [(2007) 2 SCC 513 : (2007) 1 SCC (L&S) 725] ] In view of this settled position, the appellants will not be entitled to regularisation."
7.4. Hon'ble Apex Court in the case of National Aluminium Co. Ltd.
in Para 4, 6, 13, 24 & 28 to 32 has held as follows:-
"4. In the year 1984, NALCO established two schools in the townships set up by it for its employees working in its manufacturing units at NALCO Nagar, Angul and at Damandjodi, with a view to provide educational facility mainly to the children of its employees from primary to +2 level though the children from neighbouring area are also given admissions. It also provided necessary infrastructure, such as land, building, furniture, library, laboratory equipment and other assets. The said schools admittedly are unaided private schools.
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6. These agreements were terminable at the instance of the parties by giving six months' prior notice in writing to the other party. In the event of termination the agreements, the services of the staff employed by the school were liable to be terminated in accordance with the terms of their appointment in these schools.
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Page 18 of 43
// 19 //
13. From these facts narrated above, one can easily find out as to what are the respective cases of both the parties. The employees of both schools filed the writ petitions to lay the claim that they are the employees of NALCO on the ground that real control and supervision of the schools, including the staff is that of NALCO which has the final say in all vital matters. It was their argument that though the appointments are made by the Managing Committees of the schools, it is on the recommendation of the Selection Committee of which the authorities of NALCO are the members. Further, since inception of the school, an officer in the rank of General Manager of NALCO has been functioning as the President of the Managing Committee, and an officer in the rank of Chief Manager/DGM (Personnel Administration), and the DGM (Finance) are the other two members. That apart, the building furniture/fittings and all necessary paraphernalia for running of the schools is provided by and is the responsibility of NALCO. Even the finances are provided by NALCO, the financial budget is approved by the Board of Director of NALCO. NALCO even fixes the tuition fee. No transaction of the schools can be made without the approval of DGM (Finance), NALCO which includes the expenditure with regard to the salary component, provident fund, medical reimbursement, leave travel concession, festival advance, increments, etc. Teaching and non-teaching staff of the schools are allotted with residential quarters by NALCO. It was thus argued that NALCO plays a decisive role in the matter of appointment of the employees as well as in the management of the schools.
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24. Merely because the schools are set up by NALCO or they have agreed to take care of the financial deficits for the running of the schools, according to us, are not the conclusive factors. Such aspects have been considered by this Court in various cases. In RBI [RBI v. Workmen, (1996) 3 SCC 267 : 1996 SCC (L&S) 691] , question was as to whether workers of the canteens which were Page 19 of 43 // 20 // established and even financed by RBI, were the workers of RBI. Various canteens were set up by RBI which were being run through a cooperative society. They were established in the Bank's premises for the benefit of its employees. The Bank was reimbursing the charges incurred in getting various statutory licences. Even prior permission of RBI was required to increase the strength of the employees. Holding that these canteen workers were not the employees of RBI, the Court observed: (SCC p. 272, para 10) "10. The Bank does not supervise or control the working of the canteens or the supply of eatables to employees. The employees are not under an obligation to purchase eatables from the canteen. There is no relationship of master and servant between the Bank and the various persons employed in the canteens aforesaid. The Bank does not carry any trade or business in the canteens. The staff canteens are established only as a welfare measure. Similar demands made by the staff canteen employees and the request made to the Central Government to refer the dispute for adjudication was rejected by the Central Government and the challenge against the same before the Calcutta High Court was unsuccessful. According to the Bank, it has no statutory or other obligation to run the canteens and it has no direct control or supervision over the employees engaged in the canteens. It has no right to take any disciplinary action or to direct any canteen employee to do a particular work. The disciplinary control over the persons employed in the canteens does not vest in the Bank nor has the Bank any say or control regarding the allocation of work or the way in which the work is carried out by the said employees. Sanctioning of leave, distribution of work, maintenance of the attendance register are all done either by the Implementation Committee (Canteen Committee) or by the Cooperative Society or by the contractor."
xxx xxx xxx
28. More significant case, having close proximity with the present one is the judgment in S.C. Chandra v. State of Jharkhand [S.C. Page 20 of 43 // 21 // Chandra v. State of Jharkhand, (2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897] . In that case Hindustan Copper Ltd. (HCL), the Government of India enterprise, had established a school. Employees of that school claimed that their real employer was HCL. Admitted facts were that the school was established by HCL with the object of benefitting children of the workers of HCL. Even the financial assistance was provided to the schools. The Court, however, came to the conclusion that only by giving financial assistance HCL did not become the employer of teachers and staff working in the school. They were held to be the employees of the Managing Committee of the school. That part of the discussion which has direct bearing on the present case runs as follows:-- (SCC p. 286, para 8)
"8. We have heard the learned counsel for the parties and perused the records. The basic question before us is whether a writ of mandamus could be issued against the management of HCL. The learned Single Judge relying on the Division Bench in an identical matter pertaining to Bharat Coking Coal Ltd. dismissed the writ petition of the appellants. This issue was examined in an analogous writ petition and in the aforesaid case, this issue was extensively considered as to whether the management of the school is the direct responsibility of HCL or not. After considering the matter in detail, the learned Single Judge relying on the aforesaid judgment found that there is no relationship of master and servant with that of the teachers and other staff of the school with HCL as the management of the school was done by the Managing Committee though liberal financial grant was being made by the Corporation. By that there was no direct connection of the management of HCL with that of the management of the school. Though through various communica-tion an impression was sought to be given that the school is being run by HCL but in substance HCL only used to provide financial assistance to the school but the management of the school was entirely different than the management of HCL. Giving financial assistance does not necessarily mean that all the teachers and staff who are working in the school Page 21 of 43 // 22 // have become the employees of HCL. Therefore, we are of the view that the view taken by the learned Single Judge appears to be correct that there was no relationship of the management of HCL with that of the management of the school though most of the employees of HCL were in the Managing Committee of the school. But by that no inference can be drawn that the school had been established by HCL. The children of workers of HCL were being benefited by the education imparted by this school. Therefore, the management of HCL was giving financial aid but by that it cannot be construed that the school was run by the management of HCL. Therefore, under these circumstances, we are of the opinion that the view taken by the learned Single Judge appears to be correct."
29. From the reading of para 20 in S.C. Chandra case [S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897] it can be discerned that the Managing Committee which was managing the school was treated as an independent body. This case is relevant on the second aspect as well viz. the claim of school employees predicate upon the financial burden that is assured by NALCO. To that aspect we shall advert to little later in some detail.
30. No doubt, there may be some element of control of NALCO because of the reason that its officials are nominated to the Managing Committees of the schools. Such provisions are made to ensure that schools are run smoothly and properly by the society. It also becomes necessary to ensure that the money is appropriately spent. However, this kind of "remote control" would not make NALCO the employer of these workers. This only shows that since NALCO is shouldering and meeting the financial deficits, it wants to ensure that money is spent for rightful purposes.
31. It was argued that the Managing Committee cannot be the employer as it would lose its identity on the termination of agreement between NALCO and SVM Society. However, even that by itself cannot be the determinative factor. When the agreement was earlier entered into between NALCO and CCM Trust, and staff was appointed in the Page 22 of 43 // 23 // school by CCM Trust, NALCO ensured that such staff is taken over by SVM Society. For this purpose a specific clause is provided in the agreement between NALCO and SVM Society which reads as under:
"That if any of the parties hereto at any time wishes to terminate this arrangement, it may do so on giving of at least six months' prior notice in writing to the other party, of such an intention, provided that such termination shall be effective only at the close of the academic session. Provided further that in the event of such termination, the services of the staff employed by the school shall, subject to any agreement to the contrary between the two parties hereto, be terminated in accordance with the terms of their appointment in Chinmaya Vidyalaya, Damandjodi."
32. Only because SVM Society agreed to take over the employees, would not mean that NALCO becomes the employer. On the contrary, this clause suggests that but for the intervention of NALCO, the school staff that was engaged by CCM Trust would have been dealt with by CCM Trust. It is a matter of record that CCM Trust runs other schools as well. In that eventuality it would have taken these employees with themselves or retrench these employees in accordance with law. Same is the position of SVM Society who have other schools also. However, this kind of situation is not going to arise in the present case. We place on record the assurance given by the learned Senior Counsel appearing for NALCO that the teaching and other staff of the two schools would not lose their jobs even if present agreement of NALCO with SVM Society comes to an end and the management is taken over by some other agency for running the schools. We direct that NALCO shall stand committed by this assurance and would adhere to the same for all times to come. The position which emerges, in view of the aforesaid assurance, is that the service tenure of these employees is protected."
Page 23 of 43// 24 // 7.5. Learned counsel for the Opp. Party Nos. 1 & 2 also relied on the decision of this Court passed in W.P.(C) No. 5441 of 2014 (Srutikanta Barik Vs. Managing Committee of Saraswati Vidya Mandir & Ors.).
8. To the submission made by learned counsels appearing for Opp.
Party Nos. 1 & 2 as well as Opp. Party Nos. 3 & 4, learned counsel appearing for the Petitioners contended that since in terms of the agreement executed in between Opp. Party Nos. 1 & 3, Petitioners were duly appointed as teaching and non-teaching staff in the school run by Opp. Party No. 3 at Deepsikha Township in the name of St. Mary's School and Petitioners since were kept out of employment w.e.f. the Academic Session 2016-17 because of the unilateral decision taken by Opp. Party No. 1, in terminating the agreement with Opp. Party No. 3, Petitioners because of such illegal action of Opp. Party No. 1, are eligible and entitled to get the benefits as prayed for in the writ petition along with compensation.
8.1. It is contended that Petitioners since were engaged in the School of Opp. Party No. 3 in terms of the agreement executed in between Opp.
Party Nos.1 & 2 and Opp. Party No. 3 under Annexure-1, liability with regard to the claim of the Petitioner lies both on Opp. Party Nos. 1 & 2 as well as Opp. Party No. 3.
Page 24 of 43// 25 // Notwithstanding the fact that the Petitioners cannot be treated as its employees, NTPC cannot simply wash its hands off the matter by taking the plea of change of management on the strength of the new agreement. As already stated, such decision not being challenged cannot be faulted with but then NTPC has bound itself by Clause 3.3 of the MOU to ensure that the existing employees are paid with their dues and therefore, cannot wriggle out from its responsibility in this respect.
In other words, it is the joint responsibility of NTPC as well the Society to pay all the admissible dues of the existing employees for the earlier period. Undoubtedly, non-payment of the admissible dues amounts to violation of the contract for which the petitioners should ordinarily approach the common law forum for redressal of their grievances but then, this Court is conscious of the fact that the petitioners had approached this Court when the earlier agreement was in force and much water has flown down the bridge ever since. It would therefore, be iniquitous to relegate the petitioners to seek appropriate remedy in the common law forum after eight years rather, the terms of the contract being admitted, necessary directions can be issued to the parties to honor the same in letter and spirit.
Page 25 of 43// 26 // 8.2. Mr. B.P. Das, learned counsel appearing for the Petitioners in support of his claim relied on the following decisions of the Hon'ble Apex Court as well as of this Court:
1. Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors., (Civil Appeal No. 6767 of 2013 disposed of on 12.08.2013)
2. Kailash Singh Vs. The Managing Committee, Mayo College, Ajmer & Ors., (Civil Appeal No. 6409 of 2017 decided on 31.08.2018)
3. Partha Sartathi Dash Vs. State of Odisha & Ors. (W.P.(C) No. 8092 of 2016)
4. Dhaneswar Nayak Vs. State of Odisha & Ors., (1986) II OLR 113
5. Harapriya Nanda Vs. State of Odisha & Ors. (W.P.C.(OA) No. 2966 of 2016 8.3. This Court in the case of Deepali Gundi Surwase in Para 33 to 37 has held as follows:-
"33. In Novartis India Ltd. v. State of W.B. [(2009) 3 SCC 124 : (2009) 1 SCC (L&S) 595] , the services of the workman were terminated on the charge of not joining the place of transfer. The Labour Court quashed the termination of services on the ground of violation of the rules of natural justice and passed an award of reinstatement of the workman with back wages. The learned Single Judge of the High Court dismissed the writ petition filed by the appellant but the letters patent appeal was allowed by the Division Bench on the ground that the State of West Bengal was not the appropriate Government for making the reference. The special leave petition filed by the workman was allowed by this Court and the Division Bench of the High Court was asked to decide the letters Page 26 of 43 // 27 // patent appeal on merits. In the second round, the Division Bench dismissed the appeal. This Court referred to shift in the approach regarding payment of back wages and observed : (SCC pp. 132-33, paras 21-22) "21. There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premise that the burden to show that the workman was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1872. This Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in cases of public employment, etc.
22. It is also trite that for the purpose of grant of back wages, conduct of the workman concerned also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right."
34. In Metropolitan Transport Corpn. v. V. Venkatesan [(2009) 9 SCC 601 : (2009) 2 SCC (L&S) 719] , the Court noted that after termination of service from the post of conductor, the respondent had acquired Law degree and started practice as an advocate. The Industrial Tribunal declared the termination of the respondent's service by way of removal as void and inoperative on the ground that the Corporation had not applied for approval under Section 33(2)(b) of the Industrial Disputes Act. At one stage, the High Court stayed the Page 27 of 43 // 28 // order of the Industrial Tribunal but finally dismissed the writ petition. The workman filed application under Section 33-C(2) of the Industrial Disputes Act claiming full back wages. The Labour Court allowed the claim of the respondent to the extent of Rs 6,54,766. The writ petition filed against the order of the Labour Court was dismissed by the learned Single Judge and the appeal was dismissed by the Division Bench. This Court referred to the earlier precedents and observed :
(SCC pp. 608-09, paras 19-22) "19. First, it may be noticed that in the seventies and eighties, the directions for reinstatement and the payment of full back wages on dismissal order having been found invalid would ordinarily follow as a matter of course. But there is change in the legal approach now.
20. We recently observed in Jagbir Singh v. Haryana State Agriculture Mktg. Board [(2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] that in the recent past there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that the relief of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is held to be in contravention of the prescribed procedure.
21. Secondly, and more importantly, in view of the fact that the respondent was enrolled as an advocate on 12-12-2000 and continued to be so until the date of his reinstatement (15-6-2004), in our thoughtful consideration, he cannot be held to be entitled to full back wages. That the income received by the respondent while pursuing legal profession has to be treated as income from gainful employment does not admit of any doubt. In North-East Karnataka RTC v. M. Nagangouda [(2007) 10 SCC 765 : (2008) 1 SCC (L&S) 718] this Court held that 'gainful employment' would also include self- employment. We respectfully agree.
22. It is difficult to accept the submission of the learned Senior Counsel for the respondent that he had no professional earnings as an advocate and except conducting his own case, the respondent did not Page 28 of 43 // 29 // appear in any other case. The fact that he resigned from service after 2-3 years of reinstatement and re-engaged himself in legal profession leads us to assume that he had some practice in law after he took sanad on 12-12-2000 until 15-6-2004, otherwise he would not have resigned from the settled job and resumed profession of glorious uncertainties."
35. In Jagbir Singh v. Haryana State Agriculture Mktg. Board [(2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] , this Court noted that as on the date of retrenchment, Respondent 1 had worked for less than 11 months and held : (SCC p. 335, paras 14-15) "14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.
15. Therefore, the view of the High Court that the Labour Court erred in granting reinstatement and back wages in the facts and circumstances of the present case cannot be said to suffer from any legal flaw. However, in our view, the High Court erred in not awarding compensation to the appellant while upsetting the award of reinstatement and back wages."
36. We may now deal with the judgment in J.K. Synthetics Ltd. v. K.P. Agrawal [(2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] in detail. The facts of that case were that the respondent was dismissed from service on the basis of inquiry conducted by the competent authority. The Labour Court held that the inquiry was not fair and proper and permitted the parties to adduce evidence on the Page 29 of 43 // 30 // charges levelled against the respondent. After considering the evidence, the Labour Court gave benefit of doubt to the respondent and substituted the punishment of dismissal from service with that of stoppage of increments for two years. On an application filed by the respondent, the Labour Court held that the respondent was entitled to reinstatement with full back wages for the period of unemployment. The learned Single Judge dismissed the writ petition and the Division Bench declined to interfere by observing that the employer had wilfully violated the order of the Labour Court. On an application made by the respondent under Section 6(6) of the U.P. Industrial Disputes Act, 1947, the Labour Court amended the award. This Court upheld the power of the Labour Court to amend the award but did not approve the award of full back wages.
37. After noticing several precedents to which reference has been made hereinabove, the two-Judge Bench observed : (J.K. Synthetics case [(2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] , SCC pp. 448-50, paras 17-21) "17. There is also a misconception that whenever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed. ...
18. Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period Page 30 of 43 // 31 // on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in Rudhan Singh [Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591 : 2005 SCC (L&S) 716] and Uday Narain Pandey [U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479 : 2006 SCC (L&S) 250] . Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may.
19. But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental enquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment.
Page 31 of 43// 32 // Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc.
20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the Page 32 of 43 // 33 // principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination.
21. In this case, the Labour Court found that a charge against the employee in respect of a serious misconduct was proved. It, however, felt that the punishment of dismissal was not warranted and therefore, imposed a lesser punishment of withholding the two annual increments. In such circumstances, award of back wages was neither automatic nor consequential. In fact, back wages was not warranted at all."
8.4. Similarly, Hon'ble Apex Court in the case of Kailash Singh in Para 29 to 36 has held as follows:-
"29. We cannot lose sight of the fact that the present case is not one under the Industrial Disputes Act, 1947. This in turn would have required factual matrix to be established in different aspects, which is not what has happened. Thus, the principles of the Industrial Disputes Act, 1947 cannot be, ipso facto, imported into a factual matrix of the present nature, for, as a consequence of the illegality in the termination of the services of the appellants, compensation has to be granted. The methodology of calculation would be based on the principle of wrongful termination of an employee, under the master- servant relationship. This, in turn, would import into it the requirement of the appellants endeavouring to mitigate their losses. In fact, in this context, we may observe that the claim for back-wages has apparently been raised for the first time only in the present proceedings, arising from the manner in which the High Court dealt with the matter, where it granted some compensation.
30. The principle of awarding adequate compensation in the form of back- wages, keeping in mind aggravating and mitigating circumstances would, thus, have to be observed. The amount cannot be measly, nor can it be a bonanza. The High Court, in its wisdom, awarded the compensation of five (5) years' back- wages on the last pay drawn. Not only that, an additional benefit was conferred by providing for provident fund and retiral dues, to be calculated on the premise as if the services would be continued till the appellants attained the age of superannuation.
31. We have no reason to find that such an aforesaid principle can be said to be fallacious or wrong, so as to call for our interference, except to the extent discussed hereafter.Page 33 of 43
// 34 //
32. We are firstly of the view that it would not be appropriate to determine the amount on the basis of the last pay and allowances drawn. The calculation should be based on the actual pay and allowances liable to be drawn for the years in question, dependent on the period for which this amount is to be calculated.
33. In order to better understand, and come to an appropriate figure, we had asked both the parties to give their calculations. The Management has given its calculations based on the impugned judgment, which includes the salary calculations for five (5) years on the last pay and allowances drawn, while gratuity and provident fund benefits are taken till the date of retirement. There are deductions made on account of electricity dues, house rent and certain other smaller accounts. On the other hand, the appellants have given their broad calculations, taking the monthly emoluments payable in different years, right up to date, and even beyond that if the employment was to continue, as in the case of Kailash Singh.
34. We are not going into the exactitude of the calculations, but, broadly speaking, the final amount payable to Jeffry Jobard, as per the impugned order, would be approximately Rs.7.75 lakhs. If the emoluments, as opined by us as aforesaid, are taken into account, for five (5) years, it would be approximately Rs.9.75 lakhs. In the case of Kailash Singh, the amount as per the calculations of the Management would be approximately Rs.21 lakhs, while calculated as aforesaid would be approximately in the same range.
35. On having carefully examined the aforesaid issue and the calculations before us, we are inclined to enhance it a little more, and grant damages in the form of salary and allowances payable for a period of eight (8) years, of the actual amounts, in both the cases, after adding the respective provident fund amounts and other retiral dues while simultaneously deducting electricity, water and occupation charges, etc., as calculated by the management, as per the impugned order of the Division Bench. To put a quietus to this long-drawn dispute, we have quantified and fixed the amounts. The net impact is an all-inclusive compensation of Rs. 25 lakhs, in the case of Kailash Singh and Rs. 18 lakhs in the case of Jeffry Jobard. Needless to say, the amount of Rs.5 lakhs, already paid to the appellants, in pursuance to the directions of this Court, is liable to be adjusted from the said amounts payable.
36. We are not inclined to grant future salary and allowances to Kailash Singh, merely because he has not been granted reinstatement, with further years of his service still remaining. In fact, in O.P. Bhandari v. Indian Tourism Development Corporation Ltd.,17 this plea of paying future salary and allowances, in cases of such non- reinstatement of an employee, was rejected as it would amount to Page 34 of 43 // 35 // conferring a bonanza on an employee, and would not lead to compensation per an acceptable formula."
8.5. This Court in the case of Partha Sarathi Dash in Para 11 has held as follows:-
"11. This by itself shows that the Petitioner was never terminated from service nor was allowed to work. The plea of abolition of the post or of treating the Petitioner as a surplus staff has not found favour with this Court in the earlier Writ Petition. Law is well settled that where an employee is willing to work but is prevented by the employer to do so unlawfully, he cannot be blamed much less denied his legitimate benefits such as salary etc. by invoking the principle of no work no pay. Law is well settled that the principle of 'no work no pay' is not absolute as was held by the Apex Court in the case of Commissioner, Karnataka Housing Board vrs. C. Muddaiah; reported in MANU/SC/7890/2007: (2007) 7 SCC 689 and also in Union Territory of Dadra & Nagar Haveli V. Gulabhia M. Lad; reported in MANU/SC/0304/2010: (2010) 5 SCC 775. Thus, there is no way by which the Petitioner can be deprived of his legitimate dues for the period during which he was wrongfully refused employment."
8.6. This Court in the case of Dhaneswar Nayak in Para 7 has held as follows:-
"7. Even accepting the plea of opp. party No. 3 that study leave was refused to the petitioner and that he was in know of the same and yet he got himself relieved to join the training course does not help the opp. party No. 3 in any manner. The petitioner admittedly held an appointment in the school. His service was statutorily protected under the provision of the Orissa Education Act, 1969 and could not have been terminated except with the prior approval of the Inspector of Schools as required und Section 10-A of the Act. Refusal to allow the Page 35 of 43 // 36 // petitioner to join his former post after completion of the training would amount to termination of his service from the school, yet his service cannot determinate simpliciter without the prior approval of the Inspector of Schools. It is open to the Managing Committee to proceed departmentally against the teacher concerned and impose suitable punishment upon him following the procedures prescribed under Rule 22 or Rule 23 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974. But, however, short of such a proceeding the service of a teacher cannot be terminated without following the provisions of Section 10-A of the Orissa Education Act which requires the prior approval of the Inspector of Schools for the purpose. Not allowing a teacher to join back his former post after training amounts to termination of service as has also been decided by this Court in the case of Upendra Pradhan v. Secretary, Jagartnath Prasad M.S. School and Ors. I.L.R. 1976. Cut 1047 The petitioner in that case had been relieved from the post of Headmaster to undergo training but after completion of the training was not allowed to join the post of Headmaster but was directed to join as an Assistant teacher. It was held that this amounted to termination of service of the petitioner from the post of Headmaster and that such termination was illegal and inoperative, in view of the provisions of Section 7 of Orissa Act 17 of 1974. The matter again came up for decision in the case of Duryodhan Tarai and Anr. v. Managing Committee of Patrisahi M.E. School and Ors. reported in I.L.R. 1978(2) Cut where under almost similar circumstances the refusal to allow the teachers to re-join the school was treated as violative of Section 10-A of the Orissa Education Act. In another unreported case, OJC. No. 664 of 1976, decided on 26- 4-1978, the Court even went still further. It was a case where a teacher of an aided educational school was selected to undergo B. Ed. training and applied to the Managing Committee for appropriate study leave. The request was rejected, his service was terminated, and in the vacancy caused due to termination of service Page 36 of 43 // 37 // another person was appointed. After the teacher completed the training he reported to duty, but his joining report was not accepted. The approval of the Director, Public Instruction (S) had not been obtained for such termination of service as required, by the amending Act of 1974. it was held that the order was illegal and the petitioner was bound to be taken back In service."
8.7. This Court in the case of Harapriya Nanda in Para 5, 5.1 & 5.2 has held as follows:-
"5.Taking into account the submissions made by the learned Addl. Government Advocate, Mr. Roy, learned counsel appearing for the Petitioner contended that since due to the admitted latches of the Opposite Parties, the Petitioner was deprived from being appointed as a Stipendiary Engineers in the year 1994 and her claim was never considered in spite of several approaches, the Petitioner in view of such illegalities meted out to her, entitled to get suitable compensation as deem fits and proper by this Court for such admitted negligence on the part of the Opposite Parties in keeping her out of employment.
Learned counsel for the Petitioner relies on a decision of this Court reported in 1998(I) OLR-108 and another decision of the Hon'ble Apex Court in the case of Rabindranath Ghosal vrs Calcutta University & Others reported in (2002) 7 SCC-478.
5.1. Hon'ble Apex Court in Para-9 of the case in Rabindranath Ghosal has held as follows:-
"9. The Courts having the obligation to satisfy the social aspiration of the citizens have to apply the tool and grant compensation as damages in a public law proceedings. Consequently when the Court moulds the relief in proceedings under Articles 32 and 226 of the Constitution seeking enforcement or protection of fundamental rights and grants compensation, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizens. But it would not be correct to assume that every minor infraction of public duty by every public officer would commend the Court to grant compensation in a petition under Articles 226 Page 37 of 43 // 38 // and 32 by applying the principle of public law proceeding. The Court in exercise of extraordinary power under Articles 226 and 32 of the Constitution, therefore, would not award damages against public authorities merely because they have made some order which turns out to be ultra vires, or there has been some inaction in the performance of the duties unless there is malice or conscious abuse. Before exemplary damages can be awarded it must be shown that some fundamental right under Article 21 has been infringed by arbitrary or capricious action on the part of the public functionaries and that the sufferer was a helpless victim of that act".
5.2. Mr. Ray, also relies on another decision of the High Court of Gujarat passed in the case of Nilubahen Gordhanbhai Machhi vrs. State of Gujarat. In Para-16 and 19.6 has held as follows:-
"16. Furthermore, insofar as the submissions on behalf of the State that a candidate does not get an indefeasible right merely on account of name of the said candidate figuring in the select/waiting list, in the considered opinion of this Court, the State cannot be heard to submit the said contention more particularly when the State itself had recommended for operating the waiting list, which had been turned down by the GPSC. In any case, in the considered opinion of this Court, the proposition that a candidate whose name appearing in the select list does not get an indefeasible right for appointment is not a completely unqualified proposition, rather such proposition has been clarified by the Hon'ble Apex Court by holding that the State cannot act in an arbitrary manner and the decision not to fill up vacancies has to be taken bona fide for appropriate reasons. This Court at this stage proposes to refer to the decision of the Constitutional Bench of the Hon'ble Apex Court in case of Shankarsan Dash Vs. Union of India, reported in (1991) 3 SCC 47. Paragraphs 7 and 8 of the said decision being relevant for the purpose are reproduced herein below for benefit:-
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it Page 38 of 43 // 39 // does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899.
8. In State of Haryana v. Subhash Chander Marwaha and Others, (supra) 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55% marks, were appointed, although under the relevant rules the eligibility condition required only 45% marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55% marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the Government to decide how MANY appointments should be made and although the High Court had appreciated the position correctly, it had ``somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies''. It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jitendra Kumar and Others v. State of Punjab and Others, was turned down holding that it was open to the Government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was had that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Miss Neelima Shangla v. State of Haryana was allowed by this Court but, not on the ground that Page 39 of 43 // 40 // she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the Government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The Government accordingly made only 17 appointments and stated before the Court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and there must be a conscious application of mind by the Government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant".
xxx xxx xxx 19.6. Since this Court has come to a conclusion that the petitioners were forced to approach this Court on account of GPSC relying upon a Circular of the Government or on such portion of the Circular which has been declared to be arbitrary and violative of Article 14 and 16 of the Constitution, therefore, the respondent No.2 GPSC is required to be saddled with costs, which would be payable to the petitioners. Costs quantified at Rs.25,000/- in each of the petitions is imposed upon GPSC, which shall be paid by GPSC through the Registry of this Court to the respective petitioners".
9. I have heard Mr. B.P. Das, learned counsel appearing for the Petitioner, Mr. B.S. Tripathy, learned counsel appearing for Opp. Party Nos. 1 & 2, Mr. G. Mishra, Sr. Counsel appearing for Opp. Party Nos.
3 & 4 along with Mr. H.S. Deo and Mr. D.K. Panda, learned counsel appearing for Opp. Party No. 5. On the consent of all the Parties the Page 40 of 43 // 41 // matter was finally heard at the stage of admission with due exchange of pleadings and disposed of vide the present common order.
10. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that pursuant to the agreement executed by Opp. Party No. 1 with Opp.
Party No. 3 on 10.11.1999, Petitioners herein were appointed as teaching and non-teaching staff in the school run by Opp. Party No. 3 in Deepsikha Township in the name and style of St. Mary's School, Deepsikha Township, Kanhia-O.P. No.4.
10.1. After going through different clauses of the agreement dtd.10.11.1999 under Annexure-1, this Court finds that even though the school is run by Opp. Party No. 3, but Opp. Party No. 1 has pervasive control over the management of the school in question. As further found from the agreement, Opp. Party No. 1 was required to compensate the short fall amount towards salary of the teaching and non-teaching staff of the School and the salary is to be paid as per the scale prescribed by the Govt. of India as per CBSE pattern. Since in terms of the agreement executed under Annexure-1, Opp. Party No. 1 was having pervasive control over the management of the school so run by Opp. Party No. 3 and because of the termination of the agreement with Opp. Party No. 3 so issued vide notice dtd.12.06.2015, Petitioners Page 41 of 43 // 42 // on the face of the interim order passed by this Court on 23.11.2015 were deprived to continue either in the school of Opp. Party No. 3 or in the school run by Opp. Party No. 5 w.e.f. the Academic Session 2016-
17. Placing reliance on the decisions so relied on by the learned counsel appearing for the Petitioners, this Court is of the view that Petitioners taking into account their long continuance in the school prior to the Academic Session 2016-17 are eligible and entitled to get the salary as due and admissible in terms of Para 18 of the agreement dtd.10.11.1999 under Annexure-1.
10.2. Petitioners are also eligible and entitled to get the benefit of gratuity and provident fund as well as other admitted dues for their continuance in the school run by Opp. Party No. 3. But since in terms of the agreement executed under Annexure-1, Opp. Party No. 1 was acting as the Principal employer having pervasive control over the Management of the School run by Opp. Party No. 3 and as per Para 3.3 of the MOU signed in between Opp. Party No. 1 and Opp. Party No. 5, this Court directs Opp. Party Nos. 1 and 3 to release the differential salary of the Petitioners as due and admissible for the period Petitioners continued in the School of Opp. Party No. 3 in terms of Para 18 of the agreement. Petitioners are also eligible and entitled to get the benefit of gratuity and provident fund dues as due and admissible to be paid by Page 42 of 43 // 43 // Opp. Party Nos. 1 and 3. However, taking into account the fact that because of the unilateral action of Opp. Party No. 1, Petitioners were not allowed to continue w.e.f. the Academic Session 2016-17 and they lost their livelihood because of such action, this Court placing reliance on the decision of this Court in the case of Harapriya Nanda as cited (supra), held the Petitioners entitled to get compensation amount of Rs.
5,00,000/- each to be paid by Opp. Party No. 1.
10.3. This Court accordingly directs Opp. Party No. 1 to release the compensation amount of Rs. 5,00,000/- to each of the Petitioners and further direct Opp. Party Nos. 1 and 3 to release differential salary in terms of Para 18 of the agreement dt.10.11.1999 under Annexure-1 for the period Petitioners continued under Opp. Party No. 3 and 4. This Court also directs Opp. Party Nos. 1 & 3 to release the gratuity, provident fund dues as due and admissible to the Petitioners. The entire amount as due and admissible and as directed be released in favour of the Petitioners by Opp. Party Nos. 1 & 3 within a period of three (3) months from the date of receipt of this order.
11. The writ petition is accordingly disposed of.
(Biraja Prasanna Satapathy)
Signature Not Verified Judge
Digitally Signed Orissa High Court, Cuttack
Signed by: SNEHANJALI PARIDA th
Dated the 4 of April, 2024/Sneha
Designation: Sr. Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 04-Apr-2024 19:17:43
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