Motilal Kala v. Hari Govind Rai — 1978 DIGILAW 390 (CAL)

JUDGMENT 1. IN this appeal from a judgment of Deb J. delivered on November 5, 1976, on an application under Article 226 of the constitution, we are called upon to consture the relevant provisions of Rule 9 (1) (b) (ii) of the west Bengal Board of Secondary Education (Manner of Hearing and deciding Appeals by Appeal Committee)Regulations, 1964. 2. THE respondent Hari Govind rai was an assistant teacher of Digambar Jain Vidyalaya. The managing committee of the Vidyalaya dismissed him from service. He filed an appeal to the Appeal Committee constituted under section 18 of the West Bengal board of Secondary Education Act, 1963. The Appeal Committee held that his dismissal was wrongful. The Appeal committee directed the managing committee to pay gratuity to him in lieu of reinstatement. The respondent was aggrieved by the Appeal Committee's decision. He made an application to this court under article 226 of the Constitution for writs in the nature of mandamus and certiorari for quashing the Appeal committee's order. His case is that the appeal Committee should have made an order for reinstatement. Let us read the relevant provisions of Rule 9 of the Appeal Regulations. These provisions are as follows : "rule 9 (1). The Appeal Committee may, on consideration of all the materials before it (b) in an appeal against an order of discharge or dismissal, (i) allow the appeal and make an order directing reinstatement of the appellant with or without such relief as may be found consequential to such reinstatement, if it is of the opinion that such reinstatement, is appropriate and proper, or (ii) allow the appeal and make an order directing payment of gratuity to the appellant calculated at the rate of one month's salary for each completed year of service subject to a maximum of twelve months' salary if it is of the opinion that such payment of gratuity would be appropriate relief to the appellant instead of making an order of reinstatement, or (iii) dismiss the appeal, if it is of the opinion that there are no good grounds for interference with the order appealed against. (2) The Appeal Committee in all cases shall record reasons for its decision. " From the above provisions, it appears that when an appeal is preferred to the Appeal Committee, the committee has three alternatives. (2) The Appeal Committee in all cases shall record reasons for its decision. " From the above provisions, it appears that when an appeal is preferred to the Appeal Committee, the committee has three alternatives. The first alternative is to allow the appeal and make an order directing reinstatement with or without consequential relief if the Appeal Committee is of opinion that such reinstatement is (a) appropriate and (b) proper. The second alternative is to allow the appeal and make an order directing payment of gratuity up to a maximum of 12 months' salary if the Appeal Committee is of opinion that such payment of gratuity would be appropriate relief to the appellant instead of making an order for reinstatement. The third alternative is to dismiss the appeal when there are no grounds for interference with the order of dismissal. The Appeal Committee is enjoined to lake into consideration all relevant materials placed before it and record its reasons for its decision. 3. IT seems to us that when the appeal Committee is inclined to allow the appeal it has first to direct its mind on the basis of the materials placed before it to the relief of reinstatement. If reinstatement is proper and appropriate on the facts and in the circumstances of the case, the Appeal Committee is not required at all to think of the second alternative. If, however, the Appeal Committee finds from the materials available to it that reinstatement would not be proper and appropriate, the Appeal Committee has jurisdiction under the law to pass an order for payment of gratuity. But the two alternatives are to be considered in the order in which they have been provided for in Rule 9 (1) (b). Only if the appeal Committee is of opinion that an order of reinstatement would not be proper and appropriate, the Appeal committee resorts to the second alternative of payment of gratuity. 4. IN the instant case, the Appeal committee allowed the appeal. It was of opinion that the order of dismissal was bad because the rules of procedure for making the order had not been duly observed. The Appeal Committee while allowing the appeal has chosen the second alternative above mentioned and has given its reasons for doing so. The Appeal Committee has said : "thus the termination of the services of the appellant was not justified. The Appeal Committee while allowing the appeal has chosen the second alternative above mentioned and has given its reasons for doing so. The Appeal Committee has said : "thus the termination of the services of the appellant was not justified. It was admitted during hearing and it also appears from the papers that the relationship between the appellant (i.e. Hari govind Rai) and the principal and also the relationship between the appellant and the managing committee is not happy. The suspicion of the respondent (i. e. the vidyalaya) is that the appellant (i.e. Hari Govind Rai) wrote certain letters to the Director of public Instruction making certain allegations against the School. It is also alleged that the appellant (i.e. Hari Govind Rai) encouraged indiscipline in the School. In the circumstances, in the interest of the School the appellant (i.e. Hari Govind Rai) should not be allowed to join the School but as his termination was not proper he should be given gratuity in lieu of reinstatement as provided in the existing regulations. The appellant (i.e. Govind Rai) claims arrears of salaries and allowances from the respondent (i.e. the Vidyalaya). He is entitled to get them from the school. Hence ordered that the appeal is allowed, the prayer for reinstatement is rejected. The appellant shall get from the School gratuity calculated at the rate of one month's pay for each completed year of service. He shall also get from the School his arrears of salaries, if any, and other admissible allowances from the school within a period of two months from the date of receipt of this order by the School. " The learned trial Judge has taken view that the relationship between a teacher and the management of the school is not a relevant fact which can be taken under consideration in applying Rule 9 (1) (b) of the said Regulations. The learned Judge has quashed the impugned order of the appeal Committee and has made the rule absolute with the direction to the appeal Cot trainee to act in accordance with law. 5. MR. B C Dutt, learned counsel for the respondent has urged before that an unhappy relationship between a reader and the Managing committee of the School is not a circumstances which justifies the decision that reinstatement is not proper and appropriate. Clauses (i) and (ii) of rule 9 (1) (b) Mr. 5. MR. B C Dutt, learned counsel for the respondent has urged before that an unhappy relationship between a reader and the Managing committee of the School is not a circumstances which justifies the decision that reinstatement is not proper and appropriate. Clauses (i) and (ii) of rule 9 (1) (b) Mr. Dutt contends, have to be read together and unless the first clause is inapplicable the second clause does not come into operation at all. In the instant case, Mr. Dutt submits, the relationship between the teacher and the Managing Committee is not at all relevant for holding that the first, clause is inapplicable. 6. IN our view the arguments of mr. Dutt cannot be sustained. Rule 9 (1) (i) requires that the Appeal committee must consider all materials before it We cannot say that materials relating to unhappy or unsatisfactory relationship between the teacher and site management is not a relevant factor to be taken into consideration by the Appeal Committee. The Appeal committee en materials before it must be satisfied that an order of reinstatement is proper and appropriate. The appeal Committee, once it decides upon allowing the appeal, cannot pass an automatic order of reinstatement. In the instant case the Appeal committee has found that in the interest of the school an order of reinsstatement should not be made. It was admitted before the Appeal Committee both by the teacher and by the management that, the teacher's relationship with the management was unsatisfactory. This finding of fact has not been and cannot be challenged before us. All that is being said is that this finding is irrelevant for purposes of rule 9 (1) (to). We have already said that the Appeal Committee cannot order reinstatement unless it thinks that reinstatement is proper and. appropriate and has to give its reasons for doing so. In the context of provisions like these the interest of the school cannot be ignored. And if the Appeal Committee considers that the interest of the school would suffer by an order of reinstatement the appeal committee is at liberty to choose the second alternative and make an order for payment of gratuity. We do rot find any error on the face of the records made by the Appeal Committee which enables us to interfere with its order by issuing appropriate writs. 7. We do rot find any error on the face of the records made by the Appeal Committee which enables us to interfere with its order by issuing appropriate writs. 7. IN this connection it may be relevant to refer to a few Supreme court decisions in the context of the industrial law on reinstatement. In assam Oil Co. Ltd, v. Its workmen, air 1960 S. C. 1264 it has been observed that there is no doubt that the normal rule is that in cases of wrongful dismissal the dismissed employee is entitled to reinstatement; but there can be cases where it would not be expedient to follow this normal rule and to direct reinstatement. Thus, where the dismissed employee occupied a position of some confidence with her employer, and the employer states that he had lost confidence in her and was dissatisfied with her work, it would not be, in the circumstances of the case, fair either to the employer or to the employee to direct reinstatement and compensation might be the proper relief. 8. IN our opinion, the principles indicated in the Assam Oil Co. 's case fit in with the arrangement and language of rule 9 (1) (b) in the instant case. Whenever the Appeal Committee feels that an appeal should be allowed the normal rule is to direct reinstatement provided that the Appeal Committee thinks that reinstatement is proper and appropriate. Where the Appeal Committee finds that the employer has lost confidence in the employee or that the relationship between the employer and the employee is such that the interest of the institution would not be served by an order of reinstatement the Appeal committee has jurisdiction to pass an order for payment of gratuity instead of reinstatement. Mr. B. C. Dutt has expressed an apprehension that if we hold that reinstatement might not be ordered when the relationship between a teacher and the management is unhappy then in no case would the Appeal committee be inclined to pass an order for reinstatement. In our view the apprehension of Mr. Dutt is unfounded. The Appeal Committee must be convinced that there are good grounds for holding that the relationship between the teacher and the management is unsatisfactory. Without adequate and positive evidence of such relationship the Appeal Committee cannot choose the second alternative. In our view the apprehension of Mr. Dutt is unfounded. The Appeal Committee must be convinced that there are good grounds for holding that the relationship between the teacher and the management is unsatisfactory. Without adequate and positive evidence of such relationship the Appeal Committee cannot choose the second alternative. In the instant case it was admitted that the relationship was bad both between the teacher and the Principal and between the teacher and the management. On these admitted facts and upon consideration of document on record the Appeal committee has passed this order for payment of gratuity. That is why we are not interfering with the order. 9. THE next case of the Supreme court we want to refer to is the case of ruby General Insurance Co. v. P. P. Chopra, reported in 1969 (3) S. C. C. 653. The respondent was a stenographer of the appellant in its branch office at Delhi. He was appointed on July 1c, 1966 but no formal letter of appointment was issued to him. He was asked, however, to fill in a perform which contained certain terms and conditions of service. On the respondent's insistence on the issue of an appointment letter, the appellant informed him that his appointment was that of a probationer for a period of one year. Meanwhile the respondent also approached the Labour Commissioner for directing the appellant to issue the letter of appointment. The appellant, when required by the Labour Commissioner, issued the letter of appointment but terminated the respondent's services on July 17, 1967. The respondent, thereafter, moved the Central Government who referred the matter to the Tribunal. The Tribunal directed reinstatement holding that the termination of the respondent's services was not termination implicate but was dismissal and as such liable to be set aside because the same was passed without holding any enquiry. The appellant preferred an appeal to the Supreme court. The Supreme Court has held : "(i) that the normal rule is that in case of invalid orders of dismissal, industrial adjudication would direct reinstatement of a dismissed employee. Nevertheless, there would be cases where it would not be expedient to adopt such a course; and on the reinstatement in the present case which the Tribunal had directed was inexpedient for the respondent had served the company only for 12 months. No one induced him to give up service. Nevertheless, there would be cases where it would not be expedient to adopt such a course; and on the reinstatement in the present case which the Tribunal had directed was inexpedient for the respondent had served the company only for 12 months. No one induced him to give up service. The company's establishment was small. The respondent, as a stenographer in whom trust could BE PLACED DID NOT inspire confidence in the Region at Manager. The Tribunal erred in reinstating him. It should have awarded him only compensation." 10. HERE is also another case in which although the order of dismissal was hold in he bad reinstatement was not considered to be proper or appropriate inasmuch as the respondent did not inspire confidence in the appellant's regional Manager The confidence of the employer or the relationship with the employer is, therefore a relevant consideration for determining whether an order of reinstatement, in a particular case is proper and impropriate. Mr. Saukar Ghose, learned counsel for the appellant, placed strong reliance on the above two decisions of the Supreme Court. There is another judgment of the Supreme Court on which the respondent's counsel relied but that judgment appears to us to be against the respondent. It is the judgment, in the case of THE MANAGEMENT OF panitola TEA ESTATE v. The Workmen, reported in 1971 L. I. C. at page 1235. At page 1239 the Supreme Court, has given some indications as to matters relevant for a decision that an order for reinstatement is called for. The Supreme court has said : "the question whether on setting aside the wrongful dismissal of a workman he should be reinstated or directed to be paid compensation is a matter within the judicial discretion of the Labour Court or the Tribunal, dealing with the industrial disputes, the general rule in the absence of any special circumstances being of reinstatement. In exercising this discretion, fair play towards the employee on the one hand and the interest of the employer, including considerations of discipline in the establishment on the other, require to be duly safeguarded. This is necessary in the interest both of security of tenure of the employee and of smooth and harmonious working of the establishment. In exercising this discretion, fair play towards the employee on the one hand and the interest of the employer, including considerations of discipline in the establishment on the other, require to be duly safeguarded. This is necessary in the interest both of security of tenure of the employee and of smooth and harmonious working of the establishment. Legitmate interests of both of them have to be kept in view of the order is expected to promote the desired objective of industrial peace and maximum possible production. The past record of the employee, the nature of the alleged conduct for which action was taken against him, the grounds on which the order of the employer is set aside the nature of the duties performed by the employee concerned and the nature of the industrial establishment are some of the broad relevant factors which require to be taken into consideration. The factors just stated are merely illustrative and it is not possible to exhaustively enumerate them. Each case has to be decided on its own facts and no hard and fast rule can be laid down to cover generally all conceivable contingencies. Proper balance has to be maintained between the conflicting claims of the employer and the employee without jeopardising the larger interest of industrial peace and progress. " 11. IN this case the Supreme Court has placed reliance on its earlier decision in the case of Hindustan Steel Ltd. v. A. K. Roy, AIR 1970 S. C. 1041. In paragraph 10 at page 1404 it has been stated : "as exceptions to the general rule of reinstatement there had been cases where reinstatement has not been considered as either desirable or expedient These were the cases where there had been strained relations between the employer and the employee; where the post held by the aggrieved employee had been one of trust and confidence and where through dismissal or discharge was unsustainable owing to some infirmity in the impugned order, the employee was found to have been guilty of an activity subversive of or prejudicial to the interest of the industry. " 12. THE principle of smooth and harmonious working of an industrial establishment which the Supreme Court invoked in the last two cited cases applies in our view, with equal if not greater force to an educational institution. " 12. THE principle of smooth and harmonious working of an industrial establishment which the Supreme Court invoked in the last two cited cases applies in our view, with equal if not greater force to an educational institution. The manner in which Rule 9 (l) (b) has been drafted fully supports this view of ours. In directing reinstatement of a teacher, therefore, the interest of the institution cannot be ignored which is essentially a relevant factor. In the instant case as we have repeatedly stated that it was admitted before the Appeal Committee by both the parties that the relationship between the teacher and the principal as well as between the teacher and the committee of management was strained. That relationship was also discovered by the Appeal Committee from the papers placed before it. In these circumstances, the Appeal Committee was, in our opinion, justified in applying rule 9 (l) (b) (ii) to the facts and circumstances of the case. This appeal is therefore allowed. The judgment and order under appeal are set aside. The rule is discharged. Interim orders, if any are vacated. There Mill be no order as to costs. S. K. Dutt, J, I agree. Appeal allowed.