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2012 DIGILAW 1012 (BOM)

President v. Savitri w/o Pushpashil Patel

2012-06-11

R.K.DESHPANDE

body2012
Judgment : 1. This petition challenges the order dated 24-4-2006 passed in Contempt Petition No.12 of 2005 by the presiding Officer, Additional School Tribunal, (Nagpur) Chandrapur, in exercise of its power under Section 11(3) of the Maharashtra Employees of Private Schools (Conditions of service) Regulation Act, 1977 (for short, “the MEPS Act”), holding that the respondent No.1 is entitled to back wages since 7-5-1988 till her retirement on superannuation. The order further directs the respondent No.2-Education Officer to deduct from non-salary grants due and payable to the petitioners, the amount of arrears and emoluments of the respondent No.1 for the said period, as per the revised pay-scale and to pay the same directly to her. 2. Such of the facts as are relevant for the purpose of deciding the controversy in the present case, are stated below: By the judgment and order dated 29-11-1988, the School Tribunal allowed the Appeal STN No.88 of 1988 filed by the respondent No.1 challenging her termination from service. The operative part of the same is reproduced below: “The appeal is allowed. The appellant is reinstated from 7-5-1988 in the pay scale of Rs.365760 and the management shall allow the appellant to resume the duties forthwith. No order as to costs.” 3. This judgment and order was the subject-matter of challenge by the petitioners in Writ Petition No.2873 of 1988. On 13-4-1989, this Court passed an interim order, which reads as under: “The Education Officer’s Letter dated 5.12.1988 which is being produced with the return shows that the respondent No.1 has worked with the petitioner school for the periods mentioned therein and for those periods approval has been granted. Prima facie the respondent No.1 would be entitled to receive payment for those periods in accordance with the letter of the Education Officer of the Zilla Parishad. We, therefore, direct the petitioner to pay the amounts to the respondent No.1 for the periods mentioned in the letter dated 5-12-1988. The controversy raised is that according to the petitioner the respondent No.1 worked only in the Middle School and not in the High School from 21st September 1987 to the date of termination i.e. 7th May, 1988. For this period, we would direct that she should be paid as per the scale admissible to Middle School Teacher subject to final adjustment within two months.” 4. For this period, we would direct that she should be paid as per the scale admissible to Middle School Teacher subject to final adjustment within two months.” 4. It is not in dispute that the aforesaid order has been complied with. However, on 19-2-1997, the said writ petition came to be dismissed for want of prosecution. Thus, the order passed by the School Tribunal on 29-11-1988 became final. 5. The respondent No.1 approached the School Tribunal by filing an application under Section 11(3) of the MEPS Act, claiming the relief as under: “For the reasons stated above, it is, therefore, prayed that, the necessary directions be given or orders be passed and the emoluments be paid to the applicant and the same may be ordered or directed to be deducted from the grants as per Section 11(3) of the M.E.P.S. (Conditions of Service) Regulation Act, 1977.” The said application was registered as Contempt Petition No.12 of 2005 and it was decided by order dated 24-4-2006. The operative part of the said order is reproduced below: “1. Application is hereby allowed. 2. The applicant is entitled for the back wages since 7/5/88 till her retirement on superannuation. 3. The respondent No.4 Education Officer (Secondary) Zilla Parishad Bhandara is hereby directed to deduct the arrears of emoluments of the appellant for the period stated above as per the pay scale applicable to the applicant from time to time/as per the revised pay scale applicable from time to time by pay fixation by the State Government as well as time bound increments admissible to her from non-salary grant which is due and payable or which becomes due and payable in future and pay the same directly to the applicant within 90 days from the receipt of copy of this order. 4. No order as to costs.” This order is the subject-matter of challenge in this petition. 6. In the application styled as one under Section 11(3) of the MEPS Act filed on 31-3-2005, the claim of the respondent No.1 was that in terms of the decision of the School Tribunal on 29-5-1988, she was entitled to all the emoluments, including fixation of pay, increments and other benefits, from 7-5-1988 till the date of her reinstatement in service. In the application styled as one under Section 11(3) of the MEPS Act filed on 31-3-2005, the claim of the respondent No.1 was that in terms of the decision of the School Tribunal on 29-5-1988, she was entitled to all the emoluments, including fixation of pay, increments and other benefits, from 7-5-1988 till the date of her reinstatement in service. The respondent No.1, therefore, claimed that the calculations are required to be made and the petitioners be compelled to enforce the order, or, in the alternative, the amount due and payable to her be deducted from the grants due and payable to the petitioners. In view of this, the first question is whether such an application filed under Section 11(3) of the MEPS Act on 31-3-2005 was maintainable to claim such relief when an appeal filed under Section 9 of the said Act was finally decided on 29-5-1988. 7. In order to decide the said question, Section 11 of the MEPS Act needs to be seen, which is reproduced below: “11. Powers of Tribunal to give appropriate relief and direction. (1) On receipt of an appeal, where the Tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the matters specified in section 9 or is not maintainable by it, or there is no sufficient ground for interfering with the order of the Management it may dismiss the appeal. (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 reinstatement 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 appears of employments 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 employee or in any other appropriate case, to give to the employee twelve months’ salary, pay and allowances, if any if he has been in the services of the school for ten years or more and six months salary, pay and allowances, if any if he has been in service of the school for less than ten year, by way of compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereunder, 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. (3) It shall be lawful for the Tribunal to recommend to State Government that any dues directed by it to be paid to the employee, or in case of an order to reinstatement the employee any emoluments to be paid to the employee till he is reinstated, may be deducted from the grant due and payable, or that may become due and payable in future, to the Management and be paid to the employee direct. (4) Any direction issued by the Tribunal under sub-section (2) shall be communicated to both parties in writing and shall be complied by the Management within the period specified in the direction, which shall not be less than thirty days from the date of its receipt by the Management.” Section 11 of the MEPS Act deals with the reliefs and directions, which the School Tribunal can issue while deciding the appeal filed under Section 9 of the said Act. Once the School Tribunal decides the appeal and issues directions or refuses to issue directions, as contemplated under clauses (a) to (f) of sub-section (2) of Section 11, then it ceases to have any jurisdiction to pass further orders as the appeal remains no longer pending. The power under Section 11 of the MEPS Act is also not in the nature of review, and this is the view taken by this Court in the decision in the case of DwarkaBahu Uddeshiya Gramin Vikas Foundation, Buldhana and another v. Presiding Officer, School Tribunal, Amravati and others, reported in 20011(1) Mh.L.J. 216. 8. The factual aspect in the present case is that the Appeal STN No.88 of 1988 filed under Section 9 of the MEPS Act was finally decided on 29-11-1988. Except setting aside the order of termination dated 7-5-1988 and directing reinstatement of the respondent No.1 in service, no other monetary relief claimed by the respondent No.1 was granted in exercise of the jurisdiction under sub-section (2) of Section 11 of the MEPS Act. By necessary implication, the relief of back wages, or for that matter, the arrears of salary, if at all it was claimed, the same was deemed to have been refused. Hence, the fresh application under Section 11(3) of the MEPS Act filed after a lapse of about 16 years was barred by the principle of res judicata and it was neither maintainable, nor the School Tribunal had jurisdiction to entertain any such application and grant any relief to the respondent No.1. 9. The only jurisdiction, which can be invoked by an employee, whose appeal has been allowed, is one contemplated by Section 13 of the MEPS Act for implementation of the judgment and order passed by the School Tribunal or for taking appropriate action against the Management for failure to comply with the order or directions issued by the Tribunal. 9. The only jurisdiction, which can be invoked by an employee, whose appeal has been allowed, is one contemplated by Section 13 of the MEPS Act for implementation of the judgment and order passed by the School Tribunal or for taking appropriate action against the Management for failure to comply with the order or directions issued by the Tribunal. The power under Section 13 of the MEPS Act is for executing the order passed by the School Tribunal under Section 11 of the said Act, and the Tribunal cannot, therefore, go behind the order passed in appeal to grant the relief, which was not granted by it while deciding the appeal. As pointed out earlier, the only relief, which was granted by the School Tribunal while deciding the Appeal STN No.88 of 1988 on 29-11-1988 was of the direction to reinstate the respondent No.1 in service. There was no direction to pay the back wages to the respondent No.1. Hence, even if it is assumed that the application filed by the respondent No.1, registered as Contempt Petition No.12 of 2005, before the School Tribunal, was one under Section 13 of the MEPS Act, the Tribunal had no jurisdiction to direct payment of back wages from 7-5-1988 till the date of retirement of the respondent No.1 on superannuation. 10. On earlier occasion, i.e. on 16-6-2011, I had decided finally this writ petition taking the view as afore-stated. This judgment dated 16-6-2011 was challenged in Letters Patent Appeal No.20 of 2012 by the respondent No.1. The Division Bench of this Court decided the said Letters Patent Appeal on 7-2-2012. The judgment dated 16-6-2011 passed in this writ petition was quashed and set aside and the writ petition was restored for its fresh consideration in accordance with law. After narrating the facts and contentions raised by the learned counsels before the Division Bench, the reasons for setting aside the judgment are given in para 7 by the Division Bench, which are reproduced below: “7. It is not in dispute that the present appellant was not reinstated in pursuance of that order of School Tribunal. He, therefore, moved application under Section 11(3) of the MEPS Act in which the order dated 24.04.2006 as mentioned above came to be passed. It is not in dispute that the present appellant was not reinstated in pursuance of that order of School Tribunal. He, therefore, moved application under Section 11(3) of the MEPS Act in which the order dated 24.04.2006 as mentioned above came to be passed. The learned Single Judge has only looked into operative part clause (2) by which the School Tribunal granted back wages till 07.05.2008 i.e. till retirement on superannuation, to the appellant. However, the fact that on 29.11.1988 the appellant was to be reinstated forthwith and, therefore, the claim for wages thereafter by the appellant cannot be viewed as back wages, has not been considered. Similarly, the arguments raised by Shri Ghate, learned counsel are also not considered.” It has been held by the Division Bench that the fact that on 29-11-1988, the respondent No.1 was to be reinstatement forthwith and, therefore, the claim for back wages thereafter by the respondent No.1 cannot be viewed as back wages, has not been considered. It has further been held that the arguments raised by the learned counsel for the petitioners in this writ petition were also not considered. 11. It is not in dispute that the respondent No.1 was terminated from service on 7-5-1988, and during the pendency of the appeal challenging the termination, she was out of employment. The School Tribunal decided the appeal on 29-11-1988, directing her reinstatement in service. In spite of this, it is a fact that the respondent No.1 was never reinstated in service till she attained the age of superannuation on 7-5-2002. The learned counsels appearing for the parties agree that the date 7-5-2008 appearing in para 7 of the Division Bench judgment reproduced above, in respect of the date of retirement of the respondent No.1 on superannuation, is incorrect and it is the date 7-5-2002 on which she attained the age of superannuation. 12. In the background of the aforesaid factual position, if it is to be assumed, as is the contention raised in the application under Section 11(3) of the MEPS Act, that the respondent No.1 should be treated as notionally reinstated in service on 29-11-1988, then the question is whether she was entitled to back wages from the date of her termination from 7-5-1988 till the date of her notional reinstatement on 29-11-1988. As has been held earlier, the School Tribunal itself has not granted back wages to the respondent No.1 from the date of her termination till the date of her reinstatement, and hence it had no jurisdiction either under Section 11 of the MEPS Act to pass any such order of payment of back wages after a lapse of about 16 years from the date of the judgment and order of the Tribunal, nor under Section 13 of the said Act, the Tribunal had jurisdiction to grant the relief, which has been refused by it while deciding the appeal. If it is to be treated that the respondent No.1 was entitled to arrears of salary from 29-11-1988 till she attained the age of superannuation on 7-5-2002, then also the Tribunal had no jurisdiction under any of the provisions of the MEPS Act to grant the relief of payment of arrears of salary. 13. In the decision of this Court in the case of Sangam Education Society, Nagpur and another v. Bharti Hansraj Borkar and another, reported in 1995(10 Mh.L.J. 847, it has been held in para 11 as under: “11. The expression “to give arrears of emoluments to the employee for such period as it may specify” occurring in clause (c) of sub-section (2) of section 11 of M.E.P.S. Act only means the direction of payment of arrears of emoluments to the employee subsequent to the order contemplated under section 9 and impugned, and such order has been declared illegal or improper by the School Tribunal and not the unpaid salary or arrears of salary or arrears of emoluments prior to the date of order challenged. It is only after the School Tribunal holds that the order of termination or dismissal or removal or reduction in rank is illegal or improper, while setting aside such order under clause (c) of sub-section (2) of section 11 the School Tribunal may pass appropriate order for payment of emoluments subsequent to such order, which has accumulated or has fallen in arrears till the date of the said order of termination, removal or dismissal or reduction in rank has been set aside and declared illegal and improper by the Tribunal. The unpaid salary or unpaid emoluments of the employee of a private school by the management prior to the termination, dismissal or removal or reduction in rank cannot be thus claimed by the employee by filing an appeal before the School Tribunal, nor the School Tribunal by setting aside or declaring such order of termination, dismissal or removal or reduction in rank illegal could in exercise of its power under clause (c) of sub-section (2) of section 11 direct the payment of unpaid salary of the period prior to the order of termination, dismissal or removal or reduction in rank.” This Court has held that unpaid salary or unpaid emoluments of an employee of a private school by the Management prior to termination, dismissal or removal or reduction in rank cannot be claimed by an employee by filing an appeal before the School Tribunal, nor the School Tribunal by setting aside or declaring such order of termination, dismissal or removal or reduction in rank illegal could in exercise of its power under clause (c) of sub-section (2) of Section 11 of the MEPS Act direct the payment of unpaid salary of the period prior to the order of termination, dismissal or removal or reduction in rank. The position would not be different where an employee is reinstated in service in terms of the order passed by the School Tribunal under Section 9 of the MEPS Act. Upon reinstatement of an employee, the amount payable to him subsequent to the date of reinstatement till the date of attaining the age of superannuation, would be an amount of unpaid salary and hence Section 11(2)(c) of the MEPS Act would not confer the jurisdiction upon the School Tribunal to grant arrears of salary upon reinstatement of an employee. The aforesaid decision fully supports the view which I have taken. 14. Though the Division Bench of this Court in its judgment in para 7, reproduced above, has held that the claim for wages by the respondent No.1 after 29-11-1988 cannot be viewed as back wages, it is not the decision given that the wages after 29-11-1988 have to be treated as the arrears of salary or the amount of compensation payable to the respondent No.1. Hence, the only inference, which can be drawn from this observation of the Division Bench, is that the claim for wages after 29-11-1988 can be considered as the arrears of salary due and payable to the respondent No.1. Though it has been held by the Division Bench that this point was not considered in the judgment delivered on 16-6-2011, it was specifically dealt with in para 11 of the said judgment, which is reproduced below: “11. The contention of the learned counsel for the respondent is that, it is not the amount of back wages to which the respondent is held entitled to by the School Tribunal in its impugned judgment, but it is the arrears of salary which have been granted by the School Tribunal. It is not possible to accept such argument. If this is to be treated as an amount of arrears of salary, then the School Tribunal has no jurisdiction to pass any such order under Section 9 read with Section 11 of the said Act. Consequently, the direction issued by the School Tribunal to the respondent Education Officer for deducting the arrears of emoluments to which the respondent is held entitled also cannot be sustained.” 15. The Division Bench has further remanded the case for considering the arguments advanced by the learned counsel for the petitioners in this writ petition. After going through the decision of the Division Bench, except to support the judgment delivered on 16-6-2011, no other point was raised by the learned counsel for the petitioners before the Division Bench. Even before this Bench, no other point is raised either by the petitioners or by the respondents, which is required to be considered. 16. In the result, the writ petition is allowed. The order dated 24-4-2006 passed by the School Tribunal in Contempt Petition No.12 of 2005 is hereby quashed and set aside. The application stayed as Contempt Petition No.12 of 2005 filed by the respondent No.1 is dismissed. 17. Rule is made absolute in above terms. No order as to costs.