Research › Search › Judgment

Bombay High Court · body

2020 DIGILAW 178 (BOM)

Rajashree Shikshan Sanstha v. Ananta

2020-01-23

RAVINDRA V.GHUGE

body2020
JUDGMENT Ravindra V Ghuge, J. - Rule. Rule returnable forthwith and heard finally by the consent of the parties. 2. The petitioner is aggrieved by the judgment dated 13.12.2016 delivered by the School Tribunal, Nagpur by which, Appeal No.32/2002 filed by respondent No.1 - original appellant, has been partly allowed and the following order has been passed: "1. Appeal is partly allowed. 2. As per Section 11(2)(e) of the MEPS Act, the respondent No.1 is hereby directed to pay 06 months salary to the appellant within 30 days from the date of this order. 3. The respondent No.1 is further directed to pay Rs.10,000/- (Rs. Ten Thousand Only) to the appellant as costs of litigation within 30 days from the date of this order. 4. Dictated on computer and pronounced in open Court." 3. The petitioner was aggrieved by his termination order dated 1.4.2002 and approached the School Tribunal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short "MEPS Act"). It was contended that he was appointed by order dated 1.7.1999 as an Assistant Teacher for the period 20.7.1999 up to 30.4.2000. Subsequently, he was issued a similar order and was temporarily engaged in the academic year 2000-2001 and this was followed by another order by which he continued up to 31.3.2002. By a communication dated 1.4.2002, he was informed that his services would come to an end w.e.f. 1.5.2002. Thus, he was engaged for a period of about 2 years and 10 months on temporary basis. 4. The School Tribunal delivered its judgment dated 13.12.2016. Issues that were formulated are set out under paragraph 5 and it was held that the appellant has not proved that his appointment was made as per Section 5 of the MEPS Act. It was also held that the termination order dated 1.4.2002 w.e.f. 1.5.2002, was not illegal and was not contrary to law. The record reveals that the appeal preferred by the appellant was earlier allowed by a judgment dated 21.10.2003 by the School Tribunal, Chandrapur. In Writ Petition No.4775/2003, this Court set aside the said judgment and remitted the matter. Thereafter the School Tribunal, Chandrapur delivered a judgment dated 10.3.2005 and dismissed the appeal. The appellant approached this Court in Writ Petition No.2855/2005 and by setting aside the said judgment, this Court again remanded the matter to the School Tribunal, Chandrapur. In Writ Petition No.4775/2003, this Court set aside the said judgment and remitted the matter. Thereafter the School Tribunal, Chandrapur delivered a judgment dated 10.3.2005 and dismissed the appeal. The appellant approached this Court in Writ Petition No.2855/2005 and by setting aside the said judgment, this Court again remanded the matter to the School Tribunal, Chandrapur. Thereafter, by judgment dated 19.12.2007, the School Tribunal, Chandrapur again dismissed the appeal. The appellant again approached this Court in Writ Petition No.1418/2008. This Court set aside the judgment and again remanded the matter to the School Tribunal. Pursuant thereto, due to change in the district-wise jurisdiction of the School Tribunal, the appeal filed by the appellant was transferred to the School Tribunal at Nagpur. 5. The petitioner management operates a school namely Nanaji Pudke Vidyalaya, Jewanala, Tah. Lakhani, Dist. Bhandara. It receives grants from the State Government. The School Tribunal noticed that the appellant was appointed on temporary basis for an academic year and technically, he had worked for 3 academic years. It was also noted that after each academic year, the service of the appellant was terminated and he did not challenge the said termination before any authority. Consequently, the Tribunal concluded that his termination cannot be faulted, the same cannot be branded as being illegal and declined to interfere with the termination order. 6. It is undisputed that though the appellant was not granted reinstatement with continuity of service and back wages, he has not challenged the impugned judgment dated 13.12.2016. 7. The grievance raised by the petitioner management is to the extent of the directions at Clause (2) reproduced above. Contention is that once the Tribunal comes to a conclusion that the termination order is not illegal and does not call for interference, the question of reinstatement would not arise and, therefore, payment of compensation in lieu of reinstatement would be ruled out. 8. Section 11 of the MEPS Act, 1977 reads as under: "11. Powers of Tribunal to give appropriate relief and direction. 11.(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 reinstate the employee on the same post or on lower post as it may specify ; (b) to restore the employee to the rank which he held before reduction or to any lower rank as it may specify; (c) to give arrears of emoluments to the employee for such period as it may specify; (d) to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be; (e) where it is decided not to reinstate the 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 service 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 years], by way of compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereafter, as it may specify ; or (f) to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case. (f) to give such other relief as 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 the State Government that any dues directed by it to be paid to the employee, or in case of an order to reinstate the employee any employments 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." 9. Sub-Section (2) would indicate that whenever the Tribunal decides in an appeal, that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of law or contract or conditions of service or the termination is otherwise illegal, the Tribunal can set aside the order of the management partially or wholly and then grant any of the reliefs as are enumerated in Clauses (a) to (f). Sub-Clause (e) is an option to the Tribunal to grant compensation as is prescribed, when it has concluded that the termination is bad in law, but, finds it appropriate not to reinstatement the employee. 10. In my view, any relief to be granted under Clause (e), would be only when the Tribunal concludes under Sub-Section (2) that the termination is bad in law for any of the reasons mentioned therein. As has been held by the Hon''ble Apex Court in the matters of (I) Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub Division, Kota V/s. Mohanlal, (2013) LLR 1009 , (ii) Assistant Engineer, Rajasthan Development Corporation and another V/s. Gitam Singh, (2013) 5 SCC 136 , (iii) BSNL V/s. Man Singh, (2012) 1 SCC 558 and (iv) Jagbir Singh V/s. Haryana State Agriculture Marketing Board, (2009) 15 SCC 327 , compensation can be awarded only if the Court finds that an employee was otherwise held entitled to be reinstated, but, it was impracticable or would not appear to be pragmatic to reinstate him or foist him on the management. The Court granting compensation would have to assign reasons as to why does it not find appropriate to grant the normal relief of reinstatement in service with continuity, with or without back wages and instead compensation in lieu of reinstatement, if it appears to be practicable. 11. I am of the view that any such order of a Court / Tribunal deviating from granting a normal relief and awarding compensation in lieu of reinstatement, would be permissible only if appropriate reasons are assigned and the Tribunal indicates as to why it was not proper to reinstate the employee in service. 11. I am of the view that any such order of a Court / Tribunal deviating from granting a normal relief and awarding compensation in lieu of reinstatement, would be permissible only if appropriate reasons are assigned and the Tribunal indicates as to why it was not proper to reinstate the employee in service. An unreasoned order refusing to grant the normal relief of reinstatement in service and granting compensation in lieu thereof, cannot be sustained when based on assumptions or presumptions. An employee would have a right for grant of the normal relief of reinstatement. The Tribunal has to assign specific reasons as to why such relief is being declined and is substituted by the relief of quantified compensation. 12. In the matter of Deepali Gundu Surwase V/s. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.), (2014) 2 MhLJ 480 , the Hon''ble Apex Court concluded that the very idea of granting reinstatement to the employee and restoring his original position held at the time of his termination or dismissal or removal or discharge, would imply that the injury caused to the employee is to be undone as the act of injustice has to be done away with. It would be a legitimate right of an employee to receive the relief of reinstatement in service when his termination is found to be illegal and unsustainable. Such a right which would be the heart and soul of an appeal for challenging the termination and an employee cannot be deprived of such relief by the Tribunal or any Court, merely because it finds it convenient to grant compensation in lieu of reinstatement in service. 13. In the judgments of the Hon''ble Apex Court referred to above, it was held that when an employee was in employment for a temporary and short period, which was followed by a long period of unemployment, reinstatement in service would not be pragmatic. Quantified compensation was found to be an appropriate relief. Under Section 11(2)(e), the MEPS Act has provided for an alternate relief to be granted if the Tribunal or the Court decides not to grant reinstatement. Any such relief has to be based on the conclusion that the termination is bad in law and such termination will have to be quashed and set aside. Under Section 11(2)(e), the MEPS Act has provided for an alternate relief to be granted if the Tribunal or the Court decides not to grant reinstatement. Any such relief has to be based on the conclusion that the termination is bad in law and such termination will have to be quashed and set aside. It is thereafter, that the Tribunal can come to a conclusion that the relief of reinstatement would be impracticable for the reasons to be recorded and then the relief of quantified compensation could be granted in lieu of the normal relief of reinstatement. 14. I do find that the Tribunal has held that the termination is not illegal and does not deserve to be set aside. Having reached this conclusion, the relief under Section 11(2)(e) was not available. 15. Considering the above, this petition is allowed. The impugned judgment dated 13.12.2016 is quashed and set aside. 16. The learned Advocate for the management submits that it had deposited an amount of Rs.28,000/- before the Executing Court in Regular Darkhast No.32/2017 on 7.2.2018. The said amount is inclusive of the amount of costs awarded. The learned Advocate then submits on instructions that as the amount has been deposited and may have accrued interest over the last 2 years, the respondent - original appellant be permitted to withdraw the entire amount on sympathetic grounds keeping in view that this is the 4th round of litigation and this Court had remanded the matter to the School Tribunal on three occasions. The appellant, therefore, can withdraw the said amount. 17. Rule is made absolute in the above terms.