JAGDISH THECKEDATH v. S. S. KELLY — 1990 DIGILAW 211 (BOM)

JUDGMENT : H.H. Kantharia, J.—The petitioner who is M.Sc.(Class II) joined the Hills Grange High School and Junior College (second respondent) as a Lecturer on 8th August, 1984. His services were terminated by a letter dated March 31, 1986. The termination letter indicted that Miss S.Kelly who is the Principal of the second respondent school, was advised by the Managing Committee of the second respondent that the services of the petitioner should be terminated. Accordingly, the petitioner was given one month's notice alongwith a cheque of Rs.4021/- and his services were terminated. Being aggrieved, the petitioner filed an appeal before the School Tribunal at Bombay. As and by way of interim relief, he continued in the services of the second respondent. The appeal was contested on behalf of the second respondent by the first respondent (Principal of the School). Amongst other things, it was contended by the School that the petitioner had joined the union of teachers which was not recognised and because of his conspiracy to defame the School, the prestige of the institution was suffering. The learned Presiding Officer of the School Tribunal by his judgment and order dated July 11, 1986, partly allowed the petitioner's appeal and quashed and set aside the termination order dated March 31, 1986. However, the claim of the petitioner for reinstatement was rejected and instead the second respondent was directed to pay compensation equivalent to three months' salary at the rate of Rs. 1300/- p.m. to the petitioner. 2. Being dis-satisfied, the petitioner invoked the writ jurisdiction of this Court under Article 226 of the Constitution by filing this writ petition. 3. In support of the petition, Mr. Vashi submitted that once the School Tribunal held that the services of the petitioner were illegally terminated, there was no alternative for the School Tribunal but to reinstate the petitioner in his original position unless there were compelling reasons not to do so Resisting the petition Mr. Bajaj, appearing on behalf of respondent Nos. 1 and 2, urged that the relationship of the petitioner with the School authorities was strained he having joined un-recognised union and for carrying out a campaign against the School. Bajaj, appearing on behalf of respondent Nos. 1 and 2, urged that the relationship of the petitioner with the School authorities was strained he having joined un-recognised union and for carrying out a campaign against the School. The submission of the learned Counsel is that the School could have without assigning any reason whatsoever terminated the services of the petitioner with one month's notice pay but here he was given not only notice pay but three month's salary. 4. Now, I find from the record that reasons given by the School Tribunal for not granting the relief of reinstatement to the petitioner, to say the least, are most illogical. For the sake of convenience, we may here set out the entire paragraph from the impugned judgment of the School Tribunal denying reinstatement to the petitioner. It reads as under: ''Now the point arises whether the Appellant should be reinstated in the Respondents' school. After going through the rival contentions of the Appellant and the Respondents I am convinced that by allowing the Appellant to continue in service will definitely cause adverse affect in running the school and college of the Respondents. It is evident from their contentions that the relations between the Appellant and the Respondents have already been strained. The respondent has lost confidence in the Appellant and she was made several allegations against him e.g. hatching a conspiracy to defame the prestige of the institution. The Appellant has also made allegations alleging that she has adopted an attitude of revenge and vindictiveness. Considering this position it will not be desirable to reinstate the Appellant in the same post and to allow the parties to spoil and disturb the harmony between the Management, Respondent and the Members of the Staff. Therefore, in the interest of the institution and the students in particular who would be adversely affected due to ill feelings between the teachers and the Management, the Appellant's continuation in service is not desirable for his own interest also. The Appellant is M.Sc. (IInd Class) and he will be able to secure any other job after acquiring professional qualifications. The Appellant has himself pointed out that he was working in Larson & Toubro a renowned industrial institution, and that he left the job on his own accord. The Appellant is M.Sc. (IInd Class) and he will be able to secure any other job after acquiring professional qualifications. The Appellant has himself pointed out that he was working in Larson & Toubro a renowned industrial institution, and that he left the job on his own accord. In my opinion, therefore, the Appellant can be compensated by giving suitable compensation considering the fact that he has served the institution for one year and seven months. I think that it will be fair to direct the Respondent to pay to the Appellant compensation equivalent to three months salary @ Rs. 1,300/- per month. In the result I propose to reject the prayer of the Appellant for reinstatement. I therefore, pass the following order". 5. What is clear from the above paragraph is that the School Tribunal rejected the claim of the petitioner for reinstatement on the contentions raised by respondent Nos. 1 & 2 that the first respondent had lost confidence in the petitioner and that she had made several allegations against him regarding hatching a conspiracy to defame the prestige of the institution. Such allegations without proof could not have been considered by the School Tribunal to reject the claim of the petitioner for reinstatement. The School Tribunal points out the strained relationship between the petitioner and respondent Nos.l and 2. Once the services of the petitioner were illegally terminated by respondent Nos.l and 2, some sort of strained relationship between them is bound to be there but that does not mean that the petitioner would not be entitled to reinstatement. It was quite unreasonable for the School Tribunal to hold that if the petitioner was reinstated the atmosphere in the School and interest of the students would suffer. One fails to understand the logic of the School Tribunal that it would be in the interest of the petitioner that he should not be granted reinstatement. It is also beyond one's comprehension the reasoning of the School Tribunal that the petitioner who was a Second Class M.Sc. would be able to secure another job and that too after acquiring professional qualification. It is beyond one s understanding as to what the School Tribunal meant when it observed that earlier the petitioner was working with a renowned industrial institution "Larson & Toubro" and that he had left that job on his own accord. would be able to secure another job and that too after acquiring professional qualification. It is beyond one s understanding as to what the School Tribunal meant when it observed that earlier the petitioner was working with a renowned industrial institution "Larson & Toubro" and that he had left that job on his own accord. It was known to everyone that the petitioner had left that job to join the second respondent school. It is well settled law that once the termination order is held to be invalid and illegal, reinstatement should follow unless there are compelling reasons not to do so. Mr. Vashi was quite right in drawing the attention of this Court that had there been allegations against the petitioner that he had committed some sort of misconduct involving moral turpitude that he should not be reinstated but joining a union is certainly not a crime that the petitioner committed for which he should be visited with extreme punishment of dismissal from service. It should be kept in mind that joining a union is a valuable right of an employee and no employee can be punished merely because he joined union. I find no substance in the argument of Mr. Bajaj that the first and second respondents could have terminated the services of the petitioner without assigning any reasons with a notice pay of one month. That would amount to the naked rule "hire and fire" rule which could be found only in "Henry the VIII clause" and deserved to be banished in to from the relationship of employer -employee. I, therefore, find that the impugned order passed by the School Tribunal rejecting the claim of the petitioner for reinstatement is perverse and illegal. It deserves to be quashed and set aside. 6. In the result, writ petition succeeds and the same is allowed. The impugned order passed by the learned Member of the School Tribunal is quashed and set aside to the extent of non granting reinstatement to the petitioner. The first and second respondents are hereby directed to reinstate the petitioner in his original position and pay to him the entire fun back wages right from the day he was illegally terminated on 31.3.1986 till he is reinstated. Any amount paid to him as and by way of notice pay or otherwise shall be adjusted towards the back wages. The first and second respondents are hereby directed to reinstate the petitioner in his original position and pay to him the entire fun back wages right from the day he was illegally terminated on 31.3.1986 till he is reinstated. Any amount paid to him as and by way of notice pay or otherwise shall be adjusted towards the back wages. The first and second respondents are directed to reinstate the petitioner from July 1, 1990 and pay all the arrears on account of back wages on or before August 1, 1990 alongwith the salary for the month of July, 1990 failing which they shall be liable to pay interest at the rate of 15% p.a. on the said back wages. 8. Rule is accordingly made absolute but with no order as to costs.