Bombay High Court
Maharashtra Shikshan Sanstha, Nagpur ... vs Education Officer, Nagpur And Ors. on 1 October, 1992
JUDGMENT H. D. Dhabe, J.
1. The Petitioner No. 1 is an Educational Society which run the Petitioner No. 2 School. The Petitioner have challenged in the instant Writ Petition the interim order of the learned School Tribunal dated 21-8-1992 by which it has confirmed its ex parte ad interim order directing reinstatement of the respondent No. 2 in Service in his post of Assistant Teacher in the Petitioner No. 2 School pending decision of the appeal preferred by her before it.
2. The learned Counsel for the petitioners has urged two contentions before us. The first contention urged before us is that there is no power in the School Tribunal to direct reinstatement of the teacher concerned temporarily pending its final decision in the appeal. The second contention raised before us is that the School Tribunal has at any rate no power to grant by way of interim relief the full relief which it can grant only at the time of final decision in the appeal before it. In support the learned Counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of Cotton Corporation of India v. United Industrial Bank Ltd. .
3. It may be seen that the conditions of service of the Assistant Teachers working in the Secondary School are governed by the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 (for short the 'Act') and the Rules framed thereunder viz. Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short the Rules). Section 4 of the Act provides that the terms and conditions of service of employees of Private Schools would be governed by the Rules framed in that regard under the Act. Sub-section (2) of section 5 provides that every person appointed to fill a permanent vacancy shall be on probation for a period of two years and that, subject to the provisions of sub-sections (4) and (5), he shall, on completion of this probation period of two years, be deemed to have been confirmed. Sub-section (3) of section 5 then provides that if in the opinion of the Management, the work or behaviour of any probationer, during the period of his probation, is not satisfactory, the Management can terminate his services at any time during the said period after giving him one month's notice or salary of one month in lieu of notice.
4. According to the respondent No. 2 she was appointed on probation by the petitioner-Management by order dated 23rd July 1990 which was approved by the Education Officer. However, her services were terminated by the order dated 27-3-1992 by the end of the Session i.e. after 30-4-1992. Although it is the contention raised on behalf of the respondent No. 2 that she had not received the said order of termination, the learned Counsel for the petitioner has brought to our notice her endorsement to show that she had received the said order. However, it appears from the impugned order of the School Tribunal that even according to the Respondent No. 2 she had received the salary upto 30th June 1992 which would show that on the date of the interim order passed by the School Tribunal, she was not in the actual employment of the School. The learned Counsel for petitioners has, however disputed the fact that the Respondent No. 2 was in service till 30th June 1992 because, according to him, the salary upto the said date was paid because according to Rules, the respondent No. 2 was entitled to vacation salary till that date although her services actually stood terminated on 30-4-1992 i.e. the end of the Session.
5. Be that as it may, it is clear that on the date of the interim order, the respondent No. 2 was not in actual service in the petitioner No. 2 school. The question which, therefore, arises for consideration is whether the School Tribunal, by its interim order, can direct reinstatement pending final decision in the appeal before it. Although in the ex parte order which is confirmed by the School Tribunal after hearing both sides, the wording is that "Ex parte ad interim stay is granted until further orders and the petitioners herein (i.e., the respondents 1 and 2 before the School Tribunal) are directed to permit the Respondent No. 2 herein (i.e. the appellant before the School Tribunal) to join her duties and to continue in her service until further orders". The effect of the said Order is to direct reinstatement of the respondent No. 2 until further orders since her services had admittedly stood actually terminated on the date the above ex parte interim order was passed by the School Tribunal.
6. The learned Counsel for the petitioners has urged before us that there is no power to the School Tribunal to direct by way of interim order reinstatement of the employee concerned in service pending decision of the appeal. It is urged that under section 10(1) of the Act, the interim order which can be passed by the School Tribunal is of staying the operation of any order which is the subject matter of the appeal before it on such conditions as it may think fit. The submission, therefore, is that there is no power conferred upon the School Tribunal to grant any other interim relief. The learned Counsel for the respondent No. 2 has, however, canvassed before us that the School Tribunal is conferred with all necessary powers to pass appropriate interim orders and to grant appropriate interim relief in the matter pending decision of the appeal before it.
7. In considering the rival submissions, it may be seen that section 9 of the Act confers a right of appeal upon an employee of a Private School before the Tribunal in case of his dismissal or removal from service or if he is otherwise terminated or reduced in rank by the order passed by the Management. The right of appeal to an employee in a Private School is also provided in a case where he is superseded by the Management while making an appointment to any post by promotion. Section 10 of the Act, upon which the parties have placed reliance, provides for the General Powers and procedure before the Tribunal. Sub-section (1) of the said section 10 provides that for the purposes of admission, hearing and disposal of appeals, the School Tribunal shall have the same powers as are vested in the Appellate Court under the Code of Civil Procedure, 1908 and shall also have the power to stay the operation of any order against which an appeal is made, on such conditions as it may think fit to impose and such other powers as are conferred on it by or under the Act. Sub-section (2) of Section 10 then empowers the Presiding Officer of the School Tribunal to decide the procedure to be followed by the Tribunal for the disposal of its business including the place or places at which and the hours during which it shall hold its sittings. Sub-section 3 of section 10 requires the School Tribunal to decide the appeal expeditiously and preferably within 3 months.
8. Section 11 of the Act then confers substantive powers upon the Tribunal for passing appropriate orders and for giving appropriate reliefs in the appeal before it. Sub-section (1) thereof provides for the dismissal of the appeal if it is not in respect of any of the matters specified in section 9 or is not maintainable or there is no sufficient ground to set aside the order of the Management under appeal. However, sub-section (2) of section 11 is relevant for our purpose in regard to the substantive powers of the School Tribunal in appeal. It is reproduced below for ready reference :
"(2) Where the Tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal otherwise termination of service or reduction in rank was in contravention of any law (including any rules made under this Act), contract or conditions of service for the time being in force or was otherwise illegal or improper, the Tribunal may set aside the order of the Management, partially or wholly, and direct the Management -
(a) to reinstate the employee on the same post or on a lower post as it may specify;
(b) to restore the employee to the rank which he held before reduction or to any lower rank as it may specify;
(c) to give arrears of emoluments to the employee for such period as it may specify;
(d) to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be;
(e) where it is decided not to reinstate the employer in any other appropriate case, to give to the employee twelve months' salary (pay and allowances, if any) if he has been in service of the School for less than 10 years or more and six months' salary (pay and allowances, if any) if he has been in service of the School for less than 10 years, by way of compensation, regard being and possibility of getting or not getting suitable employment thereafter, as it may specify; or
(f) to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case.
9. It is clear on the perusal of sub-section (2) of Section 11 of the Act that after giving reasonable opportunity to both the parties of being heard, it is open to the School Tribunal to set aside the order of dismissal, removal, termination of service or reduction in rank if it is in contravention of any law, contract or conditions of service for the time being in force or is otherwise illegal or improper. On setting aside such order, the School Tribunal is empowered to either reinstate the employee on the same post or on a lower post as it may specify and to direct the payment of emoluments to him for such period as it may specify. It can also award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be. In case it decides not to reinstate the employee or in any other appropriate case, it can direct the employee to be given suitable compensation equivalent to twelve months' salary if the employee has been in service for 10 years or more and six months' salary if he has been in service of the School for less than 10 years, regard being had to the loss of employment and the possibility of getting or not getting suitable employment in future. Clause (f) of the said sub-section (2) of Section 11 clothes the School Tribunal with general power to give such relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case.
10. Sections 10 and 11 of the Act thus show that the School Tribunal which is an Appellate Authority is clothed with all the necessary powers substantive as well as procedural, to grant appropriate relief and do justice in the appeal preferred before it by any employee of a private school against the order of its Management regarding his dismissal, removal termination of service or reduction in rank as the case may be. The learned Counsel for the petitioners has, however, emphasised before us that the power to grant interim relief in the appeal as conferred upon the School Tribunal under the Act is very much restricted because it has power under section 10(1) of the Act only to stay the operation of any order appealed against before it and therefore, no other power to pass any other interim order can be exercised by it. It is urged by him that when the order under appeal has already operated there is no question of any stay of the said order and, therefore, it is not open to the School Tribunal to exercise the power to stay the operation of such an order which has already operated. Thus, according to him, in the instant case when the order of termination had already operated in the sense that the relationship of master and servant between the parties in the instant case has ceased and the respondent No. 2 was not in actual employment after termination of his service from 3-4-1992, there was no question of an interim stay of his termination of service thereafter.
11. If the submission made on behalf of the petitioners is taken to its logical conclusions, it would mean that a very narrow power is conferred upon the School Tribunal in the matter of granting interim relief or passing interim orders in the appeals preferred before it against any orders of the Management of a private school, regarding dismissal, removal, termination of service or reduction in rank of its employees. For instance, in the cases of orders of dismissal, removal etc. which take effect and become operative immediately on their receipt by the employees concerned, it would become well-nigh impossible to exercise the power of granting interim relief to such employees, if the above submission on behalf of the petitioners regarding the power of the School Tribunal to grant interim relief is accepted. It is only in cases where some notice is given for termination of service of an employee and the appeal is preferred by him and the interim stay is asked for by him before the expiry of the notice period that is would be possible for the School Tribunal to exercise the power to stay his order of termination pending decision in the appeal. The question therefore, to be considered is whether it is intended to clothe the School Tribunal with such a narrow power regarding grant of interim relief in the appeals preferred by the employee before it.
12. In appreciating the above question, it is pertinent to see that as hereinbefore referred to, the substantive powers conferred upon the School Tribunal under section 11 of the Act show that it has all the necessary powers to do justice between the parties and pass appropriate orders and grant appropriate reliefs in the matter. In fact, the heading of the said section itself is "Powers of Tribunal to give appropriate reliefs and directions". In particular clause (f) of section 11(2) of the Act which is extracted hereinabove would show that there is wide power conferred upon the School Tribunal to grant appropriate relief in the matter having regard to the circumstances of the case i.e., ex debito justitiae like the power under Order 41, Rule 33 of the Code of Civil Procedure, 1908 to do justice which power in fact can also be derived from section 10(1) of the Act also as it confers upon the School Tribunal all the powers of the Appellate Court under the Code of Civil Procedure, 1908 for the purpose of admission, hearing and disposal of appeals.
13. Similarly, it may be seen that the Act has created a right of appeal in such matters and in appeal the normal concept is that the appellate authority has all the powers of the original authority. If the original authority has power to suspend the operation and the effect of the order passed by it or in other words to allow the employee to resume duties until further consideration of the matter, the question would be whether the appellate authority is deprived of such a power because section 10(1) confers upon the School Tribunal in express terms the power to stay the operation of the order appealed against before it.
14. We have pointed out hereinabove that the School Tribunal is conferred with all the necessary powers, procedural as well as substantive in the adjudication of the matter before it under sections 10 and 11 of the Act. When the School Tribunal is conferred with the powers of the Appellate Authority under the Code of Civil Procedure, 1908, for the purposes of admission, hearing and disposal of the appeals before it, and even otherwise also being a quasi-judicial if not a judicial authority it would mean that it has inherent powers to pass appropriate orders in the lis before it ex debito justitiae including the power to issue temporary injunctions in matters not specifically covered by Order 39 of the Civil Procedure Code or by any provision of the Act. See Manoharlal v. Seth Hiralal, . Also see Ram Bahadur v. Devidayal, .
15. It is pertinent to see that the interim order of the School Tribunal directing the Management of the School to continue the appellant-employee before it in service or in other words directing his reinstatement pending decision of the appeal before it is in the nature or an order of mandatory injunction passed at an interlocutory stage. But then it is well settled that, although there is no specific provision to that effect under Order 39 of the Code of Civil Procedure or in the Specific Relief Act, 1963 the said power to grant mandatory injunction or an interlocutory application can be spelt out either as an inherent power or as a power which is implicit in the substantive power conferred upon the Court under section 39 of the Specific Relief Act, 1963 to issue mandatory injunction in its final judgment and decree, if the ends of justice require it to do so. The said powers to issue mandatory injunction at an interlocutory stage, has, however, to be exercised in exceptional cases of extreme hardships and compelling circumstances. In our view, when the power to direct reinstatement is conferred under section 11 of the Act, which is in the nature of a mandatory injunction, there is no reason why such a power cannot be allowed to be exercised by the School Tribunal at an interlocutory stage upon certain valid considerations to do justice between the parties.
16. Be that as it may, in our view the powers to grant appropriate interim relief in appeal before the School Tribunal can be spelt out from the power conferred upon the School Tribunal under Clause (f) of section 1(2) of the Act, which we have adverted to earlier. According to the said clause (f) of section 11(2) of the Act, the School Tribunal has power to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case. As hereinbefore stated, the said power is conferred upon the School Tribunal to do justice between the parties. There is no reason to limit the expression "such other relief" therein to the relief to be granted by it in its final order. It should also include in appropriate cases, the interim relief to be granted by it in the facts and circumstances of the case before it. The School Tribunal is given full powers substantive as well as procedural, and there is no reason to limit its powers to grant interim relief only because under section 10(1) the express power conferred is to grant stay of the operation of any other appealed against before it.
16A. In the above reasoning, we draw support from the judgment of the Supreme Court in the case of Management of Hotel Imperial, New Delhi v. Hotel Workers' Union, . It was held by the Supreme Court in para 22 of its judgment in the above case that the words "incidental thereto" occurring in section 10(4) of the Industrial Disputes Act, 1947 requiring the Industrial Tribunal to confine its adjudication to the point referred to it and matters incidental thereto would include the question of grant of interim relief pending adjudication of the reference before the Industrial Tribunal. It is specifically pointed out in the said para that if the question of reinstatement and/or compensation was referred to the Industrial Tribunal for adjudication, the question of granting interim relief till the decision of the Tribunal with respect of the said matter would be a matter incidental thereto under section 10(4) of the aforesaid Act. It, is however, pointed out by the Supreme Court in para 23 of its judgment in the above case that ordinarily interim relief should not be the whole relief that the workman would get if he would succeed finally.
17. The next question which arises for consideration is about the broad principles to be followed by the School Tribunal in granting interim relief to the employee in the appeal filed by him before it. It is necessary to see that for exercise of the powers under section 11 of the Act, the said section requires that the opposite party should be heard by the School Tribunal before any order is passed by it. Normally, if the order to direct reinstatement pending decision is to be passed at an interlocutory stage, there is no reason why the opposite party should not be heard before any such interim order is passed at an interlocutory stage, because the said interim order is claimed when the termination of service has already become effective. It is highly desirable that before passing any interim order of a mandatory nature, the opposite party should be heard, which would be consistent with the principles of natural justice.
18. Apart from the above procedural consideration, it is necessary for the School Tribunal to bear in mind the principle, that, even though it may find that there is prima facie case and balance of convenience in favour of the appellant employee for granting interim relief in his favour, such an interim relief should not normally be the whole relief which can be granted only if the appellant employee succeeds finally. For instance, in appropriate cases, the School Tribunal can direct reinstatement pending decision of the appeal before it on payment of part of the salary payable to the employee concerned, or in other appropriate cases i.e. where reinstatement may not be a proper relief, it may grant the employee concerned payment of some lump sum amount which can ultimately be adjusted when he finally succeeds. In passing such interim order, it is open to the School Tribunal to impose certain condition as to security etc. as it may think fit and proper. It is, however, made clear that the above principles about grant of interim relief or its form or nature are not exhaustive and the interim relief can be granted or refused by the School Tribunal upon such other considerations as may be found relevant by it in the facts and circumstances of each case before it. Similarly, it is open to it to mould the interim relief in a manner which would be just and proper in the case before it.
19. In the light of the above principles about grant of interim relief, although we do not accept the submission made on behalf of the petitioners that there is no power in the School Tribunal to direct reinstatement pending decision of the appeal their contention that by directing reinstatement pending decision of the appeal, the School Tribunal has granted the whole relief, which it should not have done at the time of granting an interim relief needs consideration. The learned Counsel appearing for the respondent No. 2 however has supported the interim relief of reinstatement pending decision of the appeal granted by the School Tribunal upon the following grounds :
i) The Post against which the respondent No. 2 was appointed is a clear vacancy.
ii) She is fully qualified for appointment as Assistant Teacher.
iii) She was appointed after due advertisement.
iv) The appointment was for a period of two years from 23-7-1990.
v) The appointment was approved by the Education Officer for a period of two years from 23-7-1990.
vi) The record of objective assessment of the work of respondent No. 2 is not maintained by the Rules, as according to the Management her services are temporary and, therefore, no record was required to be maintained.
20. We do not think that any of the above considerations put forth on behalf of the respondent No. 2 is valid in the instant case. The impugned order of termination is not per se illegal or invalid as it sought to be urged before us. Even as regards the question of unsatisfactory work, it is not necessary to be stated in the order of termination of services of the employee on probation that his service is terminated for unsatisfactory work which fact can be proved by the Management before the School Tribunal. As is clear from the order itself, one month's notice is given to the respondent No. 2 for terminating her service. We have already stated hereinabove that a mandatory injunction at in interlocutory stage is granted in cases of extreme hardships and compelling circumstances. Further there must be something more than a mere prima facie case and the balance of convenience must show that reinstatement or some compensation by way of interim relief is necessary as for instance in cases where the orders are per se illegal or void as when there is violation of the provisions of section 25F of the Industrial Disputes Act, 1947 or any other justifiable cause. The interim order passed by the learned School Tribunal without applying its mind to the proper considerations upon which the said interim order should be passed, is thus clearly illegal and is liable to be set aside. The impugned interim order of the learned School Tribunal cannot therefore, be sustained.
21. In the result, the instant Writ Petition is allowed. The impugned interim order is set aside and the learned School Tribunal is directed to decide the appeal itself within three months from the date of this order. Rule made absolute in the above terms. It is made clear that our observations as regards the prima facie case should not come in the way of the Tribunal in deciding the appeal on merits. No costs.
22. Petition allowed.