Gujarat High Court
State Of Gujarat vs Arjunbhai Amrutlal Nayak on 8 May, 2024
NEUTRAL CITATION
C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8735 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
ARJUNBHAI AMRUTLAL NAYAK & ORS.
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Appearance:
MS DHARITRI PANCHOLI AGP for the Petitioner(s) No. 1
MR PH PATHAK(665) for the Respondent(s) No. 1
MR RAJENDRA PATEL(645) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 08/05/2024
ORAL JUDGMENT
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1. Present petition is filed by the petitioner - State of Gujarat under Articles 226 and 227 of the Constitution of India for the following reliefs:-
"A. This Honourable Court be pleased to admit and allow this petition.
B. This Honourable Court be pleased to call for the record and proceedings of the application no. 167 of 2010 from the Learned Gujarat Secondary Education Tribunal, Ahmedabad.
C. YOUR LORDSHIPS may be pleased to issue a writ of certiorari or in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside the oral judgment dated 20.09.2013 passed by the Learned Gujarat Secondary Education Tribunal in Application No.167 of 2013.
D. Pending admission and final disposal of this petition YOUR LORDSHIPS be pleased to stay the implementation, execution and operation of the Oral Judgment dated 20.09.2013 passed by the Learned Gujarat Secondary Education Tribunal in Application No. 167 of 2013.
E. YOUR LORDSHIPS may be pleased to grant any other and further relief/s as may be deemed fit and proper in the facts and circumstances of the case in the interest of justice."
2. Brief facts of the present case are in nutshell as under:-
2.1 It is the case of the petitioner that on 24.01.1987 respondent No.1 was appointed as a peon on regular pay scale in Page 2 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined Non-Government granted school i.e. Shri I. P. Patel and D. P. School, Kadi running by respondent No.3 - Trust.
2.2 It is the case of the petitioner that the managing committee of the school had suspended respondent No.1 on account of serious allegation and complaints made by lady teacher and such decision was supported by the present petitioner and, thereafter, the petitioner had called all the parties for hearing as per the provisions made under Section 27(A)(2)(6) of the Gujarat Secondary Education Act (hereinafter be referred to as "the Act") by respondent - school management to continue punishment of suspension and after hearing the parties, the punishment of suspension was confirmed.
2.3 It is also the case of the petitioner that respondent No.1 was acquitted by the learned Special Judge, Mehsana and as the authority had not made the reference before the Labour Court, respondent No.1 had preferred Special Civil Application No.13641 of 1994 and pursuant to the direction issued by this Court, the reference being Reference (LCK) No.197 of 2000 was Page 3 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined made before the Labour Court, Kalol wherein the settlement came to be arrived at between respondent No.1 and the School Management and on the basis of the same, respondent No.1 reinstated in service on the post of peon.
2.4 It is also the case of the petitioner that the respondent -
school had asked for employment number for regular salary from the petitioner whereby the petitioner had informed respondent No.2 that against the order of the District Education Officer, as per the provision of law, it has to challenge before the Tribunal and instead of availing the remedy, respondent No.1 and the school settled the dispute before the Labour Court. The respondent No.1 challenged the action of non-payment before the Tribunal whereby the Tribunal directed the school management to pay the salary regularly and, thereafter, the Tribunal again directed to release an amount of Rs.50,000/- in favour of the applicant i.e. petitioner. Thereafter, the Tribunal vide order dated 20.09.2013 allowed the application preferred by respondent No.1 and observed that the stand taken by the D.E.O. was quashed and set aside. It is held by the Tribunal that Page 4 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined the salaries of the petitioner from the date of his reinstatement in service and till such time, he continued in service. It is also held by the Tribunal that the school management shall sent the supplementary bills for the petitioner's salary and for the period for which he has been served in the school within three months and the D.E.O. shall pass appropriate order within two months.
3. Being aggrieved and dissatisfied with the impugned order dated 20.09.2013 passed by the Gujarat Secondary Education Tribunal in Application No.167 of 2010, the petitioner - State of Gujarat has preferred the present petition.
4. Heard Ms.Dharitri Pancholi, learned Assistant Government Pleader appearing for the petitioner - State of Gujarat, Mr.P. H. Pathak, learned counsel appearing for respondent No.1 and Mr.Rajendra Patel, learned counsel appearing for respondents No.2 and 3. Perused the materials on record.
5. Ms.Dharitri Pancholi, learned Assistant Government Pleader appearing for the petitioner has submitted the same facts which Page 5 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined are narrated in the memo of petition. She has submitted that the impugned order passed by the Tribunal is illegal and not sustainable in the eye of law. She has submitted that the Tribunal has not considered the fact that as and when the dispute arose between the school management and the employee than the remedy is available under Section 36(5)(1) of the Act to approach the Tribunal, but instead of that, the respondent - school management and respondent no.1 had approached the Labour Court after almost six years. She has submitted that the Tribunal has committed an error in not considering the submission made on behalf of the petitioner while passing the impugned order. She has submitted that the Tribunal has not appreciated the law laid down by the Hon'ble Supreme Court as well as this Court in various cases.
5.1 Over-and-above the aforesaid oral submissions, Ms.Dharitri Pancholi, learned Assistant Government Pleader appearing for the petitioner has submitted the following written submissions:-
"1. It is respectfully submitted that the first and foremost contention of the petitioner is with respect to the liability which has been fastened on the State by the Ld. Tribunal, Page 6 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined overlooking the fact that the settlement arrived at between the management and the employee is not binding to the State Government.
2. It is respectfully submitted that the settlement between the employees and School management was arrived before the proceedings pending before the Ld. Labour Court, wherein the State Government was not a party. Thus, the school management and employee settled the matter is collusive manner and they both thereafter wish to fasten the financial liability on the State Government.
3. It is respectfully submitted that the employee was terminated from service after following the due procedure of law. The allegations on thee employee were of grave nature. There were allegations of sexual harassment on a lady employee by the concerned employee. After following the due procedure of law, the employee was terminated on 22.04.1994.
4. It is respectfully submitted that the employee approached the Ld. Labour Court by way of filing Reference (LCK) no.197 of 2000. It is pertinent to note at this stage that only the school management was made a party in the said proceedings. During the pendency of the said proceedings, the school management decided to enter into a settlement with the employee. The said decision of the school management was unilateral and without taking any sanction and/or permission from the State Government.
Pursuant to the said settlement, the school management on its own decided to reinstate the employee. The proceedings before the Ld. Labour Court came to be disposed off on the ground of settlement.
5. It is respectfully submitted that the school management thereafter passed an office order on 18.04.2010 whereby the employee came to be reinstated. Thus, the school management assumed superior authority than of State Government and unilaterally decided to reinstate the employee who was terminated after following due procedure of law. In such a case, any and all financial and other responsibilities of the employee stands solely on the shoulders of the school management.
6. It is respectfully submitted that the State Government cannot be fastened with financial liability based on a Page 7 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined settlement which is derived from connivance and collusion and to which the State Government was not a party at all. The School management should happily take responsibility of an employee who has been reinstated by them, even after a lawful termination order was in operation."
6. Mr.P. H. Pathak, learned counsel appearing for respondent No.1 has submitted that the impugned order passed by the Tribunal is just and proper and the same is sustainable in the eyes of law. He has submitted that respondent No.1 was working as peon since 1987 and he was illegally terminated from the service on the ground of the complaint filed by the lady teacher and thereafter he was acquitted by the Criminal Court and after the acquittal order, the school has not reinstated the respondent No.1 in service. He has submitted that initially the management has obstructed respondent No.1 from attending the duty, however, after withdrawal of the petition filed before this Court, he is permitted to attend the duty and since then he is attending the school regularly, however, his salary are not being paid. He has submitted that the dispute raised by the workman was not referred to the Labour Court and, therefore, he had filed Special Civil Application No.13641 of 1994 before this Court which came to be allowed and the said order was neither challenged by the Page 8 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined Government nor the school management before the higher forum. He has submitted that the reinstatement of respondent No.1 is not challenged by the petitioner but challenged the direction of the Tribunal to sanction the amount by the Government. He has submitted that the Tribunal has not committed any jurisdictional error while passing the impugned order and hence the present petition being meritless deserves to be dismissed.
6.1 Over-and-above the aforesaid submissions, Mr.P. H. Pathak, learned counsel appearing for respondent No.1 has submitted the following written submissions.
"1. The present respondent was working as peon under the cennile of respondent no.2 and 3 since 1987. The respondent was illegally terminated from service of ground of complaint filed by lady teacher against respondent no.1. That the respondent no.I was acquitted the Criminal Court, Mahesana vide order dated 12/5/1994. That after the acquittal order, the school management had not reinstated the workman in light of the judgment of Hon'ble Supreme Court in case of G.M. Tank vs State Of Gujarat & Anr reported in 2006(5) SCC 446. The Hon.ble Court has relied upon the judgment in case of R.P. Kapur vs. Union of India & Anr.. AIR 1964 SC 787, in which the Hon.ble Supreme Court has observed as under:
"If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal Page 9 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined proceedings may follow, where the acquittal is other than honourable." (emphasis supplied) In the case of Corporation of the City of Nagpur, Civil Lines, Nagpur & Anr. Vs. Ramchandra G. Modak & Ors. (supra), the same question arose before this Court. This Court, in paragraph 6, held as under:
2. That dispute raised by the workman was not referred to the Hon'ble Labour court. Therefore, the workman has filed SCA no. 13641/1994 before this Hon'ble Court. This Hon'ble Court has allowed the petition filed by the workman vide judgment dated 10.3.2000. The order is annexed by respondent no.2 and 3 along with their reply. The direction of the Hon.ble Court is reproduced as under:
"In the result, the order passed by the respondent no. 1 dated 30th November, 1994 [Annexure-B to the petition) is hereby quashed and set- aside. Rule is made absolute to that extent. It is directed that respondent no. 1 shall entertain the complaint filed by the petitioner under Section 2 (A) of the Industrial Disputes Act challenging the dismissal order dated 22nd April, 1994, and shall refer the said dispute for adjudication to the Labour Court under Section 10 (1) of the I.D Act. The said exercise shall be completed within a period of two months from the date of receipt of the writ of this Court. Office is directed to issue writ immediately. There shall be no order as to costs."
3 Neither the government nor the school management challenged the said order of Hon'ble Single Judge before the higher forum. Therefore, the petitioner and the respondent no.2 and 3 were fully aware about the dispute referred before the Hon'ble Labour Court.
4 That the reference was made to the Labour Court pe being Reference (LCK) 197/2000. The petitioner state has not raised any dispute before the Labour Court. That after 10 years of unemployment, the school management has realized that the workman will be entitled for all consequential benefits as he was acquitted in criminal proceedings. Hence, the school management entered into settlement. The respondent was reinstated as peon. That the period from 22/4/1994 10 19/4/2010 is to be treated as leave without pay. The petitioner has not annexed the terms of settlement.
5. That after the order passed by the Hon'ble Labour Court, Page 10 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined the respondent was reinstated and discharging duties as peon. That the respondent was not paid salary on the ground that he petitioner was not sanctioning the same. That for getting regular salary in light of judgment of Hon'ble Supreme Court in case of "Anandi Mukta Sadguru Shree Mukta vs V.R. Rudani & Ors, reported in 1989 (2) SCC 691, the respondent approached to the Gujarat Secondary education Tribunal vide application no. 167/2010 which was allowed by the Hon'ble Tribunal as per the order Annexure-A pg.19.
6. Thus it is admitted fact by the petitioners and respondent no.2 and 3 that the respondent no.1 was illegally terminated. He was acquitted in criminal case. Therefore, there is nothing against the respondent no.1 to keep him away from the employment. Accordingly the school management has reinstated the respondent no.1 and he was discharging his duties as a peon from 18/4/2012.
7. That so far the reinstatement of respondent nol is concern, the same is not challenged by the p[petitioner herein. The petitioner has challenged the direction of the tribunal to sanction the amount by government. The same is made clear by the Hon.ble Court in the interim order dated 24.7.2014.
8. The moot question arising from present petition is the payment of salary to the employee for discharge of his duties as a peon. The issue is covered by the judgment of Hon'ble Supreme Court in case of Anandi mukta Sadguru trust, 1989 (2) SCC 691. referred by the Tribunal in Impugn order.
9 The Hon'ble Single Judge in order dated 24/7/2014, observed that the settlement would be binding to school management. After reproduction of the name of the judgment referred as "The relationship of master and servant, the management is primarily responsible to pay salary and other benefits to the employees. The management cannot say that unless and until the state compensated, it will not make full payment to staff. "The above decision squarely applicable to the fact of the present case. The school management having entered in to settlement with respondent employee with open eye without obtaining approval of District Education Officer for reinstating the respondent employee. It is bound by the Page 11 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined consent award and is the primary duty to pay the salary and other benefits to the respondent employee and cannot refuse to pay the same on the ground that the DEO is not releasing the salary.
10. That the respondent no.1 has filed CA no. 13036/2014, for clarification of para 6 of the interim order. The Hon.ble Court has vide order dated 9.12.2014, clarified as under:
"Thus, the order passed by this court is clear viz., that the interim relief has been granted only qua the directions issued by the Tribunal to the District Education Officer and that the management is liable to pay the salary irrespective of whether or not, the District Education Officer releases the salary grant. Therefore, no clarification, as prayed for, is required to be made. Insofar as the direction to the school management to pay due salary to the applicant and to pay regular salary to the applicant forthwith is concerned, the above referred order has been passed by this court on a writ petition filed by the State of Gujarat. Under the circumstances, the question of granting any relief to the applicant, who was a respondent therein does not arise.
11. In view of the above facts, there is no jurisdictional error committed by the Hon.ble Tribunal which is require to be corrected by this Hon.ble Court. The Hon.ble Supreme Court has long back decided the same issue in case of Mohd. Yunus vs Mohd. Mustaqim & Ors reported in AIR 1984 SCC Page 38. The relevant head note is reproduced as under:-
"A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Art. 227. The supervisory jurisdiction conferred on the High Court under Art. 227 of the Constitution is limited" to seeing that an inferior Court or Tribunal functions within the limits of its authority" and not to correct an error apparent on the fact of the record much less an error of law. In exercising the supervisory power under Art. 227 the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."
12. I rely on para 12 to 15 onwards of the reply filed by respondent no.2 and 3 and the annexures annexed to the Page 12 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined reply.
13. In light of the above, the present petition seeking the relief against respondent no. 1 is require to be rejected with cost."
6.2 In support of his submission, Mr.P. H. Pathak, learned counsel appearing for respondent No.1 has relied upon the following decisions.
(1) R. P. Kapur Vs. Union of India and another, AIR 1964 SC 787;
(2) Anandi Mukta Sadguru Shree Mukta Vs. V. R. Rudani and others, (1989) 2 SCC 691;
(3) Mohd. Yunus Vs. Mohd. Mustaqim and others, AIR 1984 SC 38;
7. Mr.Rajendra Patel, learned counsel appearing for respondents No.2 and 3 has opposed the petition. He has referred to and relied upon the affidavit-in-reply filed on behalf of respondents No.2 and 3 and submitted that respondent No.1 was serving with the school as peon and getting salary from the Government Grant and now the school is grant-in-aid school. He Page 13 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined has submitted that in connection with the FIR, respondent No.1 was suspended and thereafter dismissed from the services. He has submitted that in pursuance of the settlement, respondent No.1 was permitted to resume duty on the conditions that the salary, allowances and other benefits will be as per condition of the settlement and it appears from the settlement that it was not for respondents no.2 and 3 to bare any kind of financial burden.
He has submitted that the Tribunal has not committed any error while passing the order and no interference is required to be called for.
7.1 Over-and-above, the oral submissions, Mr.Rajendra Patel, learned counsel appearing for respondents No.2 and 3 has submitted the following written submissions.
"1. Considering the settlement before the Labour Court, there cannot be financial burden on management couple with serious charges which are leveled on employee.
2. Petition by "State of Gujarat" through DEO is not maintainable, as petition by "State of Gujarat" requires to be filed by "Secretary" of the State of Gujarat.
In addition to this, present petition can not be said to be under article 226 of the Constitution of India and the same is confined under article 227 of the Constitution of India.
In that case considering the law settled by Hon'ble Govt.Page 14 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024
NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined Pleader Supreme Court, appearing in (1) 2002 (3) GLR 2323, ari, Ahmedabad Head Note C, Para 1.1 & 1.2, Bhagwanbhai Chaudhari's case & (2) (2019) 20 SCC 143, Head Copy recd Note - D, Para - 84 to 86, it is humbly prayed Hon'ble Court not to interfere in the impugned judgement of the Ld. Tribunal under challenge.
3. Employee Respondent No. 1 does not require to be given premium of his own act, by asking management to pay him salary in spite of settlement.
4. AIR 1989 SC 1607, Anadi Mukta Sadguru's Case says that, management is primarily responsible to make the payment of salary to an employee.
In this case, employee Arjunbhai has entered in settlement (Page 117) with the management before the Labour Court and has forgone financial benefits and has also stated that, he will not claim any financial benefit from the management. In that case this being an exception, the aforesaid judgment will no apply in the present case.
5. If DEO would have been party before the Labour Court, whatever financial interest of the Government could have been taken care, is already taken.
6. Because DEO was not party before the Labour Court where settlement was entered into and therefore no salary can be paid by the office of DEO, is hyper technical contention which does not required to be entertained in writ petition.
7. After dismissal of an employee and till he came to be reinstated, post remain vacant and during interim period no one was appointed.
8. Post on which Respondent No. 1 Arjunbhai was working was sanctioned post, on the establishment of the school.
9. There is no provision appearing in the statute book to have the approval of DEO for settlement and reinstatement of dismissed employee, by the management.
10. No procedure is prescribed in the statute book, to be followed while settling & reinstating an employee and therefore, reading anything accordingly, would not be healthy interpretation.Page 15 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024
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11. Statute speaks about procedure to be followed to have an approval on suspension of an employee and before dismissal, removal or reduction in rank of an employee and not for settlement & reinstatement.
12. Petition SCA No.13641/1994 was filed by an employee to direct Labour machinery to entertain an industrial dispute, wherein "State of Gujarat" was party and therefore, stand taken by DEO about unawareness of proceeding before the Labour Court and settlement before Labour Court is not sound contention.
13. Management written two letters (Page 119 and 120) to DEO seeking guidance and due to that, DEO came to know about the settlement etc. Irrespective of whether DEO was party or not, if he was likely to be affected adversely, which is admittedly not, it was for him to challenge the award of the Labour Court. Admittedly, he has not done this.
14. Management is contesting this petition, not to support an employee but to save financial burden or salary paid during interim period i.e. Rs.10,000/- per month as per Learned Tribunal's order (Page: 129).
15. In view of consent award, when the management was not to bear any financial burden, no burden of payment of salary or arrear of salary can be saddled on management.
Principal of estoppel will apply to an employee.
16. While passing an order dated 24.7.2014, Honorable High Court (Coram: Honorable Ms. Justice Harsha Devani) has expressed "prima facie" view.
Honorable Court has not discussed anything about settlement terms as per which it is not for management to bear any financial burden.
17. Learned Tribunal has not passed an order directing the management to pay salary. Tribunal directed management to send supplementary bills and DEO was directed to pass it.
Nothing is observed that in case of non-passing of bills, it is Page 16 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined for the management to pay.
What is observed is that management can recover the amount of salary paid in pursuance of the order passed by the tribunal (Rs.10,000/- per month) i.e., interim arrangement (Page: 129).
Against this, employee has not filed any petition challenging the same.
So, it is prayed not to pass any order in this petition filed by DEO, directing management, to pay an arrears of salary.
Same is observed in para 4 of order dated 9.12.2014 passed by the Honorable High Court (Coram: Honorable Ms. Justice Harsha Devani), in C.A. preferred by an employee for clarification, behind back of respondent nos.2 and 3. No LPA appears to have been preferred against this order.
18. By way of interim relief granted by Hon'ble High Court (Page: 141, para 7), Learned Tribunal's order is stayed, vide which DEO was directed to pass the supplementary bills for the salaries of the first respondent employee.
No interim relief is granted to the effect that, management to make payment of salary.
There after CA was filed for clarification. It was for seeking direction to the school management to pay due salary and regular salary. Order dated 9.12.2014 was passed and it was observed that, "... question of granting any relief to the applicant, who was a respondent therein does not arise".
19. In MCA for contempt (Page: 132, especially page 133), order dated 26.6.2014 was passed which speaks that, it was for Secretary Education Department and DEO to pursue present petition but on condition that applicant is paid a lump sum amount per month as was being paid to him pending proceedings before the Tribunal.
In spite of this, management paid Rs.10,000/- per month to an employee Arjunbhai Respondent no.1, till he reached the superannuation age on 29.6.2019 (Page: 91/B, last para). 20. In any case if the petition is allowed, Respondent Page 17 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined no.1 employee is not going to have any retirement benefits, being part of Pension Policy of Government, which are available to regularly appointed employee. In that case employee will not get any retirement benefit like Pension, Gratuity, Commutation of Pension and GPF etc.
21. Para 20 of reply by R-2 and R-3, Page - 82 and 83. Considering prayers made in the application (Page - 81, Para 17 to 20) before the Tribunal, such prayers cannot be said against management, so Respondent no.1 employee is estopped to have any kind of financial benefits from the Management.
22. Para 21, Page 83 and 84. No statutory provision or resolution or circular is within the knowledge of the Respondent nos. 2 and 3 to seek an approval before settlement and reinstatement of an employee.
If school would have been not grantable, DEO would have no voice in settlement and reinstatement.
If school is grantable, difference is of financial burden on Government in terms of payment of salary grant to the school Management.
For that, care is taken and an employee has waived forgone the salary for the period for which he was out of service after dismissal.
23. Para 22, Page 86 and 87.
In absence of statutory provision to have an approval in the nature of condition precedent, approval subsequent is permissible.
Approval can be post facto.
(2010) 3 SCC 616, Ashokkumar Das's case.
If, without examining contentions of the parties on merits, when in view of aforesaid judgement, post facto approval is possible, if DEO is directed to take the decision after hearing the parties on the point of approval qua settlement & reinstatement & if DEO is further directed to give decision on merits by speaking order, it will put an end to the present petition.
24. Para 23, Page 87 and 88.
Page 18 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined Tribunal is not the appellate forum of the Labour Court.
Subject matter to be examined by the tribunal was denial of an employee number by DEO.
Tribunal expressed genuineness of settlement. its opinion qua So, judgement delivered by the Ld. Tribunal may not be interfered with.
25. Para 24, Page 88.
Subject matter before the Labour Court was "dismissal" being dispute regarding "conditions of service".
Subject matter before Tribunal was denial of an employee number and direct payment of salary.
So, both matters cannot be clubbed.
If DEO was aggrieved with settlement before labour court, he could have answered the same to put things in order in response to letter dated 19.4.2010 (Ann: R-7, Page 119) or in alternate could have challenged the consent award, if the same was likely to affect DEO adversely.
As it was not challenged, it was waived and now estoppel applies to DEO.
26. Para-25, Page 89.
Settlements are always welcomed / encouraged.
To encourage the settlement there are provisions in CPC also.
To encourage the settlement Legal Services Authority is established.
Even Mediation centers are established.
Lok Adalat's are also held.
In view of this DEO's stand about settlement is hyper technical and does not require to be entertained.
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27. Para 26, Page 89.
Employee Respondent no.1 belongs to SEBC Settlement is goodness and kindness shown to such class of an employee by the management.
So, settlement is socio-economic justice, contemplated in preamble of the Constitution of India.
If settlement is not upheld, it would be penalty to management for undertaking socio-economic justice, which is not warranted.
28. Para 27, page 90.
When respondent no.1 was dismissed and when the settlement was made with him, there was different Managing Trustee then present.
Settlement is Bonafide and there is no flavor of any mismanagement or fraud or benefit to be taken out of that, etc. Even Ld. Tribunal as not find any thing in the settlement & held that such settlement can be discouraged, only if it is found to be lacking the bonafides or arrived at with improper motive an driven by the under hand dealings. In the present case nothing of that sort has been pointed out (Page 29 & 30).
29. Para 28, Page 90.
If dismissal of Respondent no.1 would have been set aside by Labour Court on merits, Respondent no.1 would have become entitle for back wages.
As Respondent no.1 was ready to forgo back wages, settlement was done on safer side to protect financial interest of management as well as DEO - State Government.
If case before the Labour Court would have been heard on merits, Respondent nos.2 and 3 would have join DEO as party in the proceedings.
Page 20 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined As no interest of Government - DEO was harming, settlement was entered into.
Para 29, Page 90 Right to Education is recognized by all.
It is duty of the "State" to satisfy "Right to Education".
As State is not capable, work is entrusted to "Trust" like R- 3, which discharges function of "State".
Dutpy of State is to be "Welfare State".
So, action of R-3 to settle the matter is having flavor of welfare of citizen.
When no provision (1) prohibiting settlement (2) imposing conditions on settlement, appears in statute book, it cannot be said that, action of R-3 to settle is not in accordance with law.
Para 30 & 31, Page - 91 to 91/C. "School" and "Manager" both are "Statutory Body", created under (1) Gujarat Secondary and Higher Secondary Education Act, 1972 and (2) Gujarat Public Trusts Act, 1950.
As per (2006) 8 SCC 42, Para 25, Head Note - C, Sanjaykumar's case, "Conditions of Service" of an employee of statutory body is to be decided by that body itself.
DEO has no authority to insist for approval to compromise.
If no approval of DEO is taken, no provisions of law is violated.
If new peon would have been appointed, his salary would have become admissible for grant. So, nothing wrong in settlement and consent award passed by Labour Court.
If DEO would have been party, DEO could not have said that, let there be no settlement.
Ut the Most DEO could have taken care of financial interest Page 21 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined of State i.e., no unnecessary financial burden to caste on State, which is taken care of.
So, objection raised by DEO against settlement and consent award is arbitrary, irrational, unjustified, illogical and contrary to the test of reasonableness contemplated vide Article 14 of the Constitution of India.
By action of opposing settlement, no object appears to be achieved, at the end of DEO.
There is no nexus between an action of DEO not to respect settlement and object to be achieved.
DEO is grant giving authority. So, his interest / duty would be limited to see that, grant is not misused.
Nothing appears qua misuse of grant.
So, objection by DEO qua settlement is without any basis and object to be achieved & is hyper technical & hence requires to be over ruled & as judgement of the Ld. Tribunal is not perverse, it requires to be upheld.
32. Para 32, Page 91/C. In absence of statutory provision, if it is held that, approval of reinstatement was required, it would be "Directory" and not "Mandatory" as no provision appears for approval before reinstatement and even no consequences are contemplated.
"Directory approval" may be "Condition subsequent".
So let there be hearing by DEO qua the same and let there be decision of DEO on merits by speaking order.
33. Normal Rule of payment of grant is by State, on order of Court (2016) 3 SCC 512
14. Recently office of Commissioner of Schools issued letter dated 24.01.2024 (Enclosure 1) to consider the cases of an employee whose dismissal is set aside by Courts etc. This shows the approach of the Govt. So objection by DEO qua settlement and award by Laboure court on the basis of Page 22 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined the same requires to be upheld and in turn judgement of Ld. Tribunal also requires to be up held by dismissing the present petition filed by DEO.
In view of what is stated here in above it is humbly prayed to dismiss the petition."
7.1 In support of his submission, Mr.Rajendra Patel, learned counsel appearing for respondents No.2 and 3 has relied upon the following decisions.
(1) Bhagwanbhai Raghunathbhai Chaudhary Vs. District Primary Education Officer, 2002 (3) GLR 2323;
(2) Rajendra Diwan Vs. Pradeep Kumar Ranibala and another, (2019) 20 SCC 143;
(3) Ashok Kumar Das and others Vs. University of Burdwan and others, (2010) 3 SCC 616;
(4) Sanjay Kumar Manjul Vs. Chairman, UPSC and others, (2006) 8 SCC 42;
(5) Educational Society, Tumsar and others Vs. State of Maharashtra and others, (2016) 3 SCC 512;
8. In the case of Bhagwanbhai Raghunathbhai Chaudhary (supra), relied upon by learned counsel appearing for Page 23 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined respondents No.2 and 3, this Court has held and observed in para 1.1 and 1.2 as under:-
"1.1 The petitioner herein challenges the order of termination of service of the petitioner passed by the District Primary Education Officer, ultimately confirmed in appeal by the Director of Primary Education. Obviously, therefore, this is a petition under Article 227 of the Constitution since the petitioner challenges the orders passed by the statutory authorities in the performance of their quasi-judicial functions.
1.2. Before proceeding further on the merits of the matter it is desirable to keep in mind the observations of the Supreme Court in the case of (i) Mohmmad Yunus Vs. Mohammad Mustaqim (All India Reporter 1984 SC 38, (ii) Khalil Ahmed Bashir Vs. Tufelhussein S. Sarangpurwala (All India Reporter 1988 SC 184) and (iii) Ashok Kumar Vs. Sita Ram (2001(4) SCC 478) on the question of the scope and ambit of the jurisdiction of this Court in the context of the powers which this Court may exercise under Art. 227 of the Constitution. The Supreme Court has observed in the aforesaid cases that the High Court, while examining a petition under Art. 227 of the Constitution of India, cannot reappreciate the evidence and cannot disturb the findings of fact recorded by the courts below except where the same are perverse, and even errors of law cannot be corrected. Suffice it to say that this Court cannot enter into the quality of the decisions rendered; at best, it may only examine the decision making process adopted by the fora below."
8.1 In the case of Rajendra Diwan (supra), relied upon by learned counsel appearing for respondents No.2 and 3, the Hon'ble Supreme Court has held and observed in para 84 to 86 as under:-
Page 24 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined "85. It is true, that in L. Chandra Kumar (supra) this Court held that Tribunals constituted under Articles 323A and 323B of the Constitution were subject to the writ jurisdiction of the High Courts, within whose jurisdiction they were located, as noted by this Court in H.S Yadav v.
Shakuntala Devi Parakh, (2019) 10 SCC 265.
86. The power of superintendence conferred by Article 227 is, however, supervisory and not appellate. It is settled law that this power of judicial superintendence must be exercised sparingly, to keep subordinate courts and tribunals within the limits of their authority. When a Tribunal has acted within its jurisdiction, the High Court does not interfere in exercise of its extraordinary writ jurisdiction unless there is grave miscarriage of justice or flagrant violation of law. Jurisdiction under Article 227 cannot be exercised "in the cloak of an appeal in disguise".
87. In exercise of its extraordinary power of superintendence and/or judicial review under Article 226 and 227 of the Constitution of India, the High Courts restrict interference to cases of patent error of law which go to the root of the decision; perversity; arbitrariness and/ or unreasonableness; violation of principles of natural justice, lack of jurisdiction and usurpation of powers. The High Court does not re-assess or re-analyze the evidence and/or materials on record. Whether the High Court would exercise its writ jurisdiction to test a decision of the Rent Control Tribunal would depend on the facts and circumstances of the case. The writ jurisdiction of the High Court cannot be converted into an alternative appellate forum, just because there is no other provision of appeal in the eye of law."
8.2 In the case of Sanjay Kumar Manjul (supra), relied upon by learned counsel appearing for respondents No.2 and 3 has held and observed in para 25 as under:-
Page 25 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined "25. The statutory authority is entitled to frame statutory rules laying down terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned who can take ultimate decision therefor."
8.3 In the case of Educational Society, Tumsar (supra), the Hon'ble Supreme Court has held and observed in para 11 as under:-
"11. We have considered the aforesaid submissions of the learned counsel for the parties and have gone through the statutory provisions. It cannot be denied that as per normal principle, whenever a terminated employee of an aided school challenges the termination and termination is held to be illegal by a competent judicial forum/Court and order is passed for payment of back wages etc., the Government is supposed to bear the said burden. The reason for the same is that such back wages or any other payment are in the nature of salary for the intervening period or other compensation in lieu thereof which is to be paid to the employee who would have earn these benefits had he remained in service. In that eventuality, obviously, the Government/Education Department would have paid those benefits in terms of financial aid provided to such a school. However, if there is a specific provision contained in any statute which contains contrary position, then such provision would prevail upon the aforesaid general rule. Likewise, if there is any administrative order which is contrary to the aforesaid general rule, the said administrative order shall prevail as in that situation, it would be treated that the aid is given subject to the conditions contained in such administrative order."
9. Considering the facts of the present case, the issue in the present petition is whether the impugned order passed by the Tribunal is just and proper or not?
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10. On 24.07.2014, while admitting the petition, this Court (Coram: Hon'ble Ms.Justice Harsha Devani) passed the following order.
"1. Mr. D.M. Devnani, learned Assistant Government Pleader, assailed the impugned order of the Tribunal by submitting that the Tribunal was not justified in entertaining the application made by the first respondent-employee, inasmuch as, at the time of his reinstatement, no approval had been taken of the District Education Officer. Moreover, the petitioner herein was not made a party in the proceedings before the Labour Court and neither did the management seek the approval of the District Education Officer prior to entering into a settlement with the first respondent. It was submitted that in these circumstances, the petitioner cannot be saddled with their liability of paying the salary or any other dues to the first respondent, inasmuch as, it is the management which has entered into the settlement with the first respondent.
2. On the other hand, Mr. P.H. Pathak, learned advocate for the first respondent appearing on caveat, supported the order passed by the Tribunal and submitted that the impugned order is just, legal and proper and that pursuant to the award passed by the Labour Court, the first respondent has been reinstated against a sanctioned post and hence, the District Education Officer is duty bound to release the salary benefits qua the first respondent. It was submitted that as observed by the Tribunal, the award passed by the Labour Court has a judicial flavour and therefore, the District Education Officer cannot be heard to say that it was not acceptable to him. It was submitted further submitted that in any case, irrespective of whether or not the management receives the grant from the State Government; it is liable to pay the salary and other dues of the first respondent- employee. Reliance was placed upon the decision of the Supreme Court in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & others v. V.R. Rudani & others, AIR 1989 SC 1607, wherein the Supreme Court has observed that under the relationship of master and servant, the management is primarily responsible to pay salary and other Page 27 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined benefits to the employees. The management cannot say that unless and until the State compensates, it will not make full payment to the staff. It was submitted that the above decision would be squarely applicable to the facts of the present case and, therefore, the management cannot shirk from its duty to pay the dues of the first respondent- employee.
3. On the other hand, Mr. Rajendra Patel, learned advocate for respondents No.2 and 3, viz., the Principal and the Managing Trustee of the school in question, submitted that the said school is a grant-in-aid school and once the first respondent has been reinstated against a sanctioned post, the District Education Officer is duty bound to pay the salaries and other benefits and that the management cannot be saddled with such liability. It was submitted that day in and day out, settlements of the type which has been entered into between the management and the first respondent are being entered between the management and the employee and such employees are always covered under the grant-in- aid scheme and their salaries are paid by the District Education Officer. It was submitted that in the facts of the present case also once the settlement has been arrived at before the Labour Court and the Labour Court has passed the consent award, the same is binding upon all the authorities including the District Education Officer, and the District Education Officer cannot refuse to pay the salaries and other benefits to the first respondent-employee. It was submitted that, therefore, the impugned order passed by the Tribunal being just, legal and proper, there is no warrant for intervention by this court.
4. The facts are not in dispute. Pursuant to domestic inquiry conducted by the school management, and by an order dated 22.04.1994, after seeking the approval of the District Education Officer the first respondent-employee came to be dismissed from service. The respondent employee challenged the order of termination before the Labour Court without impleading the District Education Officer as a party respondent. In the said proceedings the respondent employee and the school management (respondents No.2 and 3 herein) entered into a settlement whereby the respondent employee was to be reinstated in service without back wages. After reinstating the respondent employee the school management informed the District Education Officer about the consent award and requested him to allot employee number to the respondent employee and start Page 28 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined releasing his salary from 19.04.2010 onwards. The District Education Officer informed the school management that the jurisdiction to decide the issue in question was vested in the Gujarat Secondary Education Tribunal and that the settlement had taken place between the management and the employee in proceedings where he was not a party, and hence he is not required to do anything in the matter. Thereafter the management issued a legal notice to the petitioner and subsequently the respondent employee filed an application seeking a direction to the District Education Officer to release his salaries with 18% interest which came to be allowed by the Tribunal by, inter alia, holding that the management shall send the supplementary bills for the respondent employee's salaries for the period for which he had served in the school within three months and the District Education Officer shall thereafter pass the same within two months.
5. Section 36 of the Gujarat Secondary and Higher Secondary Education Act, 1972 (hereinafter referred to as "the Act"), mandates that no person who is appointed as a headmaster or teacher or a member of non-teaching staff of a registered private secondary school can be dismissed or removed or reduced in rank nor can his service be otherwise terminated by the manager until- (a) he has been given by the manager a reasonable opportunity of showing cause against the action proposed to be taken in regard to him and
(b) the action proposed to be taken in regard to him has been approved in writing by an officer authorised in his behalf by the Board. In the facts of the present case, after conducting domestic inquiry the school management took the approval for the proposed action of terminating the services of the first respondent-employee from the authorized officer of the Board, viz., the District Education Officer. After such approval was granted, the services of the first respondent employee came to be terminated. Against such order, the first respondent, instead of approaching the Tribunal under sub-section (5) of section 36 of the Act, chose to approach the Labour Court. In the said proceedings before the Labour Court, the first respondent and the school management entered into a settlement, whereby the school management agreed to reinstate the first respondent employee subject to his giving up his claim for back-wages and certain other benefits. Pursuant to his reinstatement, the respondents No.2 and 3 did not pay the salaries and other dues of the first respondent employee and asked the District Education Officer to allot employee number to the Page 29 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined respondent employee and release his salary grant, which the District Education Officer refused by a communication dated 04.05.2010. The first respondent employee, therefore, approached the Tribunal assailing the action of the District Education Officer in not sanctioning his salary grant by not giving him employee number on the ground that the District Education Officer was not a party to the settlement in pursuance of which he was reinstated in service. The Tribunal, by the impugned order, has allowed the application and has quashed and set aside the communication of the District Education Officer which was subject matter of challenge and has held that the salaries of the first respondent from the date of his reinstatement in service and till such time he regularly continued in service for the purpose of the grant and upon management sending supplementary bills for the period for which he had served the school, the District Education Officer shall pass the same within two months.
6. The recruitment of teaching as well as non-teaching staff in every registered private secondary school is governed by the provisions of section 35 of the Act. The recruitment of nonteaching staff is through a staff selection committee which includes a representative of the Board, nominated by the Board. Under section 36 of the Act, termination of any employee by the management is subject to the approval of the officer authorised by the Board. Thus, appointment and termination of an employee are subject to certain controls by the Board. Therefore, for the purpose of reinstating an employee who had been terminated after the approval of the authorised officer of the Board, the approval of such officer was necessary in view of the fact that the order of termination was not adjudicated and set aside on merits.
Prima facie it appears that prior to entering into a settlement with the respondent employee to reinstate him, it was incumbent upon the school management to obtain the approval of the District Education Officer. When no such approval was obtained, and the District Education Officer was not joined as a party in the proceedings before the Labour Court, the consent award passed by the Labour Court without applying its mind to the existence of the requirements under the Act cannot be binding upon the District Education Officer. When the statute provides for approval of the District Education Officer for the purpose of terminating the services of the concerned employee, in the opinion of this court, the approval of the District Education Officer ought to have been obtained by the management Page 30 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined prior to entering into any settlement before the Labour Court. If the school management has not chosen to seek the approval of the District Education Officer, the award would be binding only between the management and the first respondent-employee and as such it is for the management to bear the burden of the consent award. However, as held by the Supreme Court in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & others v. V.R. Rudani & others, (supra) under the relationship of master and servant, the management is primarily responsible to pay salary and other benefits to the employees. The management cannot say that unless and until the State compensates, it will not make full payment to the staff. The above decision would be squarely applicable to the facts of the present case. The school management having entered into a settlement with the respondent employee with open eyes without obtaining the approval of the District Education Officer for reinstating the respondent employee, is bound by the consent award and is primarily liable to pay the salary and other benefits to the respondent employee and cannot refuse to pay the same on the ground that the District Education Officer is not releasing the salary grant.
7. In the aforesaid premises, issue rule. By way of interim relief, the impugned order passed by the Tribunal directing the District Education Officer to pass the supplementary bills for the salaries of the first respondent as well as other bills is hereby stayed."
11. Considering the facts of the case and the submissions canvassed by the learned counsel appearing for the parties, it appears that on 24.01.1987 respondent No.1 was appointed as a peon on regular pay scale in respondent - school and pursuant to the serious allegation and the complaint made on behalf of lady teacher, the managing committee of the school had suspended respondent No.1 and the decision was supported by Page 31 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined the present petitioner and as per the provisions of Section 27(A) (2)(6) of the Act the respondent - school to continue punishment of suspension and after hearing the parties, the punishment of suspension was confirmed. It also reveals from the record that respondent No.1 was acquitted by the learned Special Judge, Mehsana and as the authority had not filed any Reference before the Labour Court, respondent No.1 had preferred Special Civil Application No.13641 of 1994 and pursuant to the direction issued by this Court, the Reference being Reference (LCK) No.197 of 2000 was filed before the Labour Court, Kalol wherein the settlement was arrived at between respondent No.1 and the school and on the basis of the same, respondent No.1 reinstated in service on the post of peon. The respondent No.1 challenged the action of non-payment before the Tribunal whereby the Tribunal directed the school to pay the salary and, thereafter, the Tribunal again directed to release an amount of Rs.50,000/- in favour of respondent No.1. The Tribunal vide order dated 20.09.2013 allowed the application preferred by respondent No.1 and quashed and set aside the stand taken by the D.E.O. It is held and observed by the Tribunal that the salaries of Page 32 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined respondent No.1 from the date of his reinstatement in service and till such time he regularly continued in service. It is also held and observed by the Tribunal that the school shall sent the supplementary bills for respondent No.1's salary and for the period for which he has been served in the school within three months and the D.E.O. shall pass appropriate order within two months.
12. It emerges from the record that after passing the award by the Tribunal, the school management passed an office order on 18.04.2010 whereby the employee came to be reinstated and thus, the school management assumed superior authority that of the State Government and decided to reinstate the employee who terminated after following due procedure of law. In such a case, all financial and other responsibilities of the employee is solely on the shoulders of the school management. The State Government cannot be fastened with financial liability based on a settlement which is derived from connivance and collusion and to which the State Government was not a party at all. The School management should take responsibility of an employee who has Page 33 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined been reinstated by it, even after a lawful termination order was in operation.
13. Prima facie it emerges from the record that prior to entering into a settlement with the respondent employee to reinstate him, it was incumbent upon the school management to obtain the approval of the District Education Officer. When no such approval was obtained, and the District Education Officer was not joined as a party in the proceedings before the Labour Court, the consent award passed by the Labour Court without applying its mind to the existence of the requirements under the Act cannot be binding upon the District Education Officer. When the statute provides for approval of the District Education Officer for the purpose of terminating the services of the concerned employee, this court is of the opinion that the approval of the District Education Officer ought to have been obtained by the management prior to entering into any settlement before the Labour Court. If the school management has not chosen to seek the approval of the District Education Officer, the award would be binding only between the management and the first Page 34 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024 NEUTRAL CITATION C/SCA/8735/2014 JUDGMENT DATED: 08/05/2024 undefined respondent-employee and as such it is for the management to bear the burden of the consent award. However, as held by the Supreme Court in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & others v. V.R. Rudani & others, AIR 1989 SC 1607 under the relationship of master and servant, the management is primarily responsible to pay salary and other benefits to the employees. The management cannot say that unless and until the State compensates, it will not make full payment to the staff. The above decision would be squarely applicable to the facts of the present case. The school management having entered into a settlement with the respondent employee with open eyes without obtaining the approval of the District Education Officer for reinstating the respondent employee, is bound by the consent award and is primarily liable to pay the salary and other benefits to the respondent employee and cannot refuse to pay the same on the ground that the District Education Officer is not releasing the salary grant.
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14. In view of the aforesaid aspects, this Court is of the opinion that the Tribunal has committed an error of facts and law while passing the impugned award and it is not sustainable in the eyes of law and, therefore, the same deserves to be quashed and set aside.
15. For the foregoing reasons, the petition is allowed. The impugned judgment and award dated 20.09.2013 passed by the Gujarat Secondary Education Tribunal in Application No.167 of 2013 is hereby quashed and set aside. Rule is made absolute.
There shall be no order as to costs.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 36 of 36 Downloaded on : Thu May 09 20:46:32 IST 2024