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2024 DIGILAW 1680 (GUJ)

Veenaben v. Pandya VS Krushnakantbhai Joshi

2024-08-07

VAIBHAVI D.NANAVATI

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JUDGMENT : Vaibhavi D. Nanavati, J. 1. Heard Ms. Mamta, Vyas, the learned advocate appearing for the petitioner and Mr. N.D. Gohil, the learned advocate appearing for the respondent No.1. 2. Both the petitions challenge the judgment and order 22.8.2006 passed by the learned Member of Gujarat Primary Education Tribunal, Ahmedabad in Application No.59 of 1998. 3. In the Special Civil Application No.12036 of 2007 the subject matter of challenge is to the extent that the petitioner’s application praying for the difference of wages including medical allowance for the period from 1987 to 1995 and 1998 to 21.7.2003 came to be rejected. The petitioner has prayed for the following reliefs :- “(A) The Hon'ble Court be pleased to allow the petition and further be pleased to declare that the learned Tribunal has erred in not granting the salary for the period 1987 to 1995 and education year 1998-1999 to, 31-7-2003 and that the said order is improper, illegal and contrary to the facts on record. The Hon'ble Court be further pleased to direct the respondent school to pay difference of salary as trained teacher on the basis of Vth Pay and Vth pay recommendation as accepted by the government for the period 1987 to July-2003 with running interest @ 12% per annum, except for the period for which the payment has been directed by the Ld. Tribunal. (B) The Hon'ble Court be pleased to hold that the respondent school had committed willful breach of the interim order of Tribunal dated 30-4-1998 and be pleased to pass consequential orders. (C) During the pendency and final disposal of this petition, the Hon'ble Court be pleased to direct the respondent school to deposit the amount payable to the petitioner for the period 1987 to 1995 before this Hon'ble Court and with further direction to make payment of difference of salary for the period 1995 to 2003 immediately with running interest of 12% from the date of order till the date of payment is made. (D) The Hon'ble Court be please to award the costs of this petition. (E) Any other and further relief which this Hon'ble Court may deem just and proper to meet the ends of justice.” 4. (D) The Hon'ble Court be please to award the costs of this petition. (E) Any other and further relief which this Hon'ble Court may deem just and proper to meet the ends of justice.” 4. In the Special Civil Application No.17206 of 2007 the subject matter of challenge is to the extent that the respondent being an honorary teacher according to her own written admission dated 2.3.1998 the Tribunal did not believe it because there is no provision of honorary teacher in the Primary Education Act. The petitioner has prayed for the following relief:- “(A) The Hon'ble court be pleased to allow this petition and further be pleased to declare that the learned Tribunal has erred in not treating respondent No. 1 as an honorary teacher. (B) To declare that the respondent No.1 has used mal practice in producing zerox as well as original documents which is not supposed to be in her custody. (B1) During the pendency of this petition the judgment of the Tribunal be stayed. (C) The Hon'ble court be pleased award the cost to this petition. (D) Any other & further relief which this Hon'ble court may deem just & proper to meet the ends of justice.” 5. The facts as stated in the Special Civil Application No.12036 of 2007 is taken as lead matter and the facts stated in the said petition, being common in both the petitions read thus for sake of convenience :- 5.1 The petitioner of the Special Civil Application No.12036 of 2007 was an employee of the respondent No.1 School (petitioner of Special Civil Application No.17206 of 2007), possessing Educational Qualification of S.S.C. Diploma of Education, (D. Ed.), which is equivalent to P.T.C. The said petitioner applied for the post of Primary Teacher in response to an advertisement dated on 4.6.1987 and respondent No.1 Trust after taking interview selected and appointed the petitioner as Primary Teacher of the respondent No.2 School with effect from 15.6.1987. At the time of joining the service, the petitioner was given a fixed salary of Rs.400/- and every year increase of Rs.100/- was given to the petitioner. At the time of joining the service, the petitioner was given a fixed salary of Rs.400/- and every year increase of Rs.100/- was given to the petitioner. 5.2 The petitioner preferred repeated representations to the respondent School for not paying the pay-scale and allowances payable to a trained teacher, and in view thereof filed an application being Application Application No.59 of 1998 praying for pay scale and allowances as per Government Rules and Regulations and by way of interim relief prayed that the petitioner's service may not be terminated without following proper procedure and that the pay-scale of Rs.1200-2040 be directed to be given to the petitioner. 5.3 While admitting the said application by way of interim relief by order dated 30.4.1998 interim relief came to be granted in terms of para 13(D) of the application whereby the respondents were directed to pay the salary in the pay scale of Rs.1200-2040 with all the allowances as per Government Rules and Regulations by A/c Payee cheque and restrained the respondents No.1 & 2 from terminating the service of the petitioner without following the procedure laid down under the Bombay Primary Education Act and fixed for hearing on 8.7.1998. 5.4 Upon hearing the respective parties at length the Tribunal passed the impugned order dated 22.8.2006 duly produced at Annexure-A whereby the Tribunal held that the petitioner employee was entitled for the difference of salary and allowances as per the Government Rules and Regulations for the period she served for three years before the date of application i.e. from May, 1995 to 1997-98. The impugned order also directed the employer School and the Board that the salary and allowance and the amount of difference of salary and the allowance be paid immediately to the petitioner through Account Payee Cheque for the period of her service on trainee basis from May, 1995 to April, 1998 as per the Government’s Rules and Regulations and fixation in the said regard be made by the concerned authority. Being aggrieved by the aforesaid order passed by the tribunal dated 22.8.2006 both, the employee and the empower have challenged the said order passed by the Tribunal. 5.5 The Tribunal framed the following issues :- “(1) Whether the applicant has served in the respondent’s school? (2) Did she possess the necessary qualifications for a primary teacher? Being aggrieved by the aforesaid order passed by the tribunal dated 22.8.2006 both, the employee and the empower have challenged the said order passed by the Tribunal. 5.5 The Tribunal framed the following issues :- “(1) Whether the applicant has served in the respondent’s school? (2) Did she possess the necessary qualifications for a primary teacher? (3) Is she entitled to get benefits as per Government rules and regulation under salary allowance? and (4) Whether the respondent’s school and the Board have violated the grant of interim order? These points needs to be justified for me. Therefore sufficiant pleadings, documentary evidence, oral evidence and arguments had been considered. It is an undisputed fact that respondent School is a Non-Granted Private Primary School and is managed by Respondent No.1 i.e. Trust.” Submissions of the petitioner :- 6. Ms. Mamta Vyas, the learned advocate appearing for the petitioner in the Special Civil Application No.12036 of 2007 submitted that the petition is required to be allowed and the order passed by the Tribunal is required to be interfered to the extent of the payment of wages from date of joining i.e. 15.6.1987 to December 1997 and June 1998 till August, 2003. 6.1 The petitioner’s grievance in the application was that despite the petitioner being a trained teacher the petitioner was not paid regular salary as decided by the Government from time to time. Though the petitioner has placed on record the documentary evidence to show that the petitioner has not only worked within the entire period from i.e. 1987 to 1998 till the petitioner was unceremoniously terminated by the respondent School, but has also produced the evidence that she has been complaining about not paying salary right from 1991. 6.2 It is submitted that though the Tribunal had granted interim relief by order dated 30.4.1998, the petitioner’s services were terminated without permission of the Court. 6.2 It is submitted that though the Tribunal had granted interim relief by order dated 30.4.1998, the petitioner’s services were terminated without permission of the Court. 6.3 It is submitted that beside repeated representations to the respondent school the petitioner was not paid the pay scale and allowances payable to a trained teacher, and was paid fixed salary of Rs.400/- p.m. Being aggrieved by the aforesaid action on the part of the respondent school the petitioner filed Application being Application No.59 of 1998 praying for pay scale and allowances as per Government rules and regulations retrospectively and by way of interim relief, it was also prayed for that the petitioner's service may not be terminated without following proper procedure and that the pay scale of Rs.1200-2040 be directed to be given to the petitioner. 6.4 It is submitted that the Tribunal while admitting the application passed interim order dated 30.4.1998, wherein interim came to be granted which read thus :- "Pending hearing and final disposal of this application to direct the Opponent No. 1 and 2, their servants and agents to pay the salary in the pay scale of Rs. 1200-2040 with all the allowances as per Government rules and regulations by Alc. Payee cheque and further restrain the Opponent No. 1 &2 not to terminate the service of the present petitioner without following the procedure laid down under the Bombay Primary Education Act.'" And fixed for hearing on 8th July, 1998." 6.5 It is submitted that despite receipt of aforesaid order, the respondent No.2 school chose not to comply with the order of payment of regular pay scale of Rs. 1200-2040. In view of the aforesaid, the petitioner's service was orally terminated on 11.6.1998 without following any procedure by the respondent No.2 school. The respondents had committed breach of interim order dated 30.4.1998 passed by the learned Tribunal. 6.6 The petitioner had issued a notice dated 12.6.1998 to the respondent No.2 school and had requested to implement the interim order dated 30.4.1998. Upon receipt of the said notice no action for compliance of the interim order was taken by the respondent No.2 school and in view thereof the petitioner was constrained to file Application for breach of order before the learned Tribunal on 19.6.1998. Upon receipt of the said notice no action for compliance of the interim order was taken by the respondent No.2 school and in view thereof the petitioner was constrained to file Application for breach of order before the learned Tribunal on 19.6.1998. Considering the petitioner’s application notice was to the respondents and fixed the hearing on 25.9.1998, however the Tribunal decided to decide the entire application including the Application for breach of stay finally on merits. 6.7 It is submitted that the petitioner had submitted several documents showing that the petitioner had served continuously right from 1987 to 1998, till she was terminated in defiance of the interim order passed by the learned Tribunal dated 30.4.1998. 6.8 It is submitted that the learned Tribunal has committed gross error in denying the petitioner the relief as prayed for. The petitioner challenges that impugned order to the extent of relief of back wages and medical allowance which are also refused. Submissions of the respondents :- 7. Mr. N.D. Gohil, the learned advocate appearing for the respondent No.1 herein – the petitioner of the Special Civil Application No.17206 of 2007 submitted that the respondent Trust had issued the advertisement for appointment of the teacher which is duly produced at page-133, however no appointment was undertaken by the respondent Trust pursuant to the said advertisement. The petitioner herein is appointed as honorary teacher by the respondent school and in view thereof the respondent school paid fixed salary to the petitioner to the tune of Rs.400/- p.m. which has been increased from time to time. 7.1 It is submitted that the petitioner is not appointed by regular appointment, in view thereof the petitioner is not entitled to the regular pay-scale of Rs.1200-2040 as claimed by the petitioner. 7.2 It is submitted that the respondent herein has also challenged the said order passed by the Tribunal on 22.8.2006 to the extent that no appointment is given to the petitioner. The petitioner herein has never signed the Muster-roll of the school and the Tribunal has committed an error in denying that the petitioner was an honorary teacher and in neglecting the fact that no appointment order is given to the petitioner. The petitioner herein has never signed the Muster-roll of the school and the Tribunal has committed an error in denying that the petitioner was an honorary teacher and in neglecting the fact that no appointment order is given to the petitioner. 7.3 It is submitted that the impugned order dated 22.8.2006 passed by the Tribunal so far as payment of wages is concerned, is contrary to the fact that the petitioner was an honorary teacher and was wanting to be considered as regular teacher. 7.4 It is also submitted that the Tribunal has erred in holding that the there is no provision to appoint honorary teacher in the private school. 7.5 It is submitted that the present petition being Special Civil Application No.12036 of 2007 is required to be dismissed and the order passed by the Tribunal be interfered with to the extent that the Tribunal has directed the respondent school to pay back wages for the period for which the interim relief was granted. Analysis :- 8. Having heard the learned advocates appearing for the respective parties, it emerges that the petitioner came to be appointed in the respondent school in the year 1987, having joined her duty as Assistant Teacher in fixed salary of Rs.400/- p.m. The salary was increased every year by Rs.100/-. It emerges that though the petitioner was a trained teacher, the petitioner was not appointed by way of regular appointment pursuant to the advertisement issued by the respondent No.1 Trust which is undisputed. In view thereof, the petitioner herein is not entitled to pay scale of Government employee to the tune of Rs.1200-2040 and all the allowances that are paid by the respondent No.2 school. The Tribunal passed an interim order dated 30.4.1998 whereby the respondents No.1 and 2 were directed to pay the salary in the pay-scale of Rs.1200-2040 and all the allowances as per the Government’s Rules and Regulations by Account Payee Cheque and further directed the respondents No.1 and 2 not to terminate the service of the petitioner without following procedure laid down under the Bombay Primary Education Act till final disposal of the said application pending before the Tribunal. Inspite of the aforesaid interim order issued by the Tribunal, the respondents No.1 and 2 thought it fit not to comply with the said interim order. 9. Inspite of the aforesaid interim order issued by the Tribunal, the respondents No.1 and 2 thought it fit not to comply with the said interim order. 9. On perusal of the record, the petitioner herein has filed an affidavit on 17.1.2005 before the Tribunal wherein the petitioner has stated that, she had filed police complaint before the Police Commissioner wherein the petitioner has stated that the statement of the petitioner was because of the force. The said affidavit which is duly produced at page-134 may not be considered. 9.1 Upon perusal of the documents on record, it emerges that the petitioner herein was in fixed salary of Rs.400/- and increase by Rs.100/- was given every year. The aforesaid is not in dispute. This Court has also perused the amount paid to the petitioner for the period of service of the petitioner to the tune of Rs.7,87,690/- (page-82). 9.2 The petitioner has continued on her own volition for the aforesaid period, however approached the Tribunal as back as in the year 1998 i.e. after a span of more than 11 years of service with the respondent No.2 school without raising any grievance and having accepted the said salary from time to time. 10. Considering the aforesaid, it is apposite to refer to the impugned order dated 22.8.2006 passed by the Tribunal which is duly produced at Annexure-A (page-11). The relevant paragraphs 10 to 13 of the said order read thus :- “(10) The applicant has produced her copy of the letter dated 11/03/1991 sent through R.P.A.D. to the then Hon’ble Education Minister and the original receipt of the R.P.A.D. with Exhibit – 45. However, considering the content of the letter produced, it is proved that it has been written by the husband of the applicant with his signature. Whereas the applicant, after putting her signature in it later on, has tried to create an evidence showing that a joint representation has been made. Therefore, it cannot be accepted that the applicant has made representation through the document with Exhibit – 45 at the respective time. Whereas the applicant, after putting her signature in it later on, has tried to create an evidence showing that a joint representation has been made. Therefore, it cannot be accepted that the applicant has made representation through the document with Exhibit – 45 at the respective time. The letter dated 15/06/95, which was sent to the Director of Primary Education, has been produced with Exhibit – 47, and the copy of the same has also been forwarded to the Police Commissioner, Shahibaug Police Station, Commissioner/Education Minister, Gandhinagar, Chief Commissioner, P.F. Office through U.P.C. There is the stamp of post dated 04/09/95 on the original receipt of U.P.C. produced with Exhibit – 48. It means that the date of writing the letter is 15/06/95, whereas the date of U.P.C. is after three months, i.e. 04/09/95. Therefore, it is not proved that the letter dated 15/06/95 produced with Exhibit – 47 is the same which was done U.P.C. with Exhibit – 48, and therefore also, the representation made by the applicant to various authorities in 1995 has not been granted. The letter dated 15/09/97 bearing the signature of the applicant which was sent through R.P.A.D. to the Director of Primary Education has been produced with Exhibit – 49 and the receipt of the R.P.A.D. has been produced with Exhibit – 50. However, it has not been mentioned in the said letter that any representation was made earlier to various authorities or to the Directorate of Primary Education. That is to say, it is proved from it that the applicant complained or made representation to the concerned authorities for the first time on 15/09/97. The applicant has also not stated in her original application that the Board coerced her to write the letter that the applicant works as a teacher on honorarium. Therefore, the contention on behalf of the applicant that, the Board has coerced to write the letter regarding honorary teacher, is also not accepted. (11) The contention of the Board that the applicant has been appointed as an honorary teacher is not accepted. The Board could not produce any provision, rule or circular stating that appointment of honorary teacher/on honorarium can be made in a recognised private primary school. Whereas, as per provision 9 of Schedule – F, the teachers of the recognised private primary schools are also entitled to the salary and allowances as per the government rules and regulations. The Board could not produce any provision, rule or circular stating that appointment of honorary teacher/on honorarium can be made in a recognised private primary school. Whereas, as per provision 9 of Schedule – F, the teachers of the recognised private primary schools are also entitled to the salary and allowances as per the government rules and regulations. And as held earlier, in the present case since the qualification of the applicant is of a trainee, it is held that the applicant is entitled to get the salary and allowances on trainee basis. (12) Vide the order dated 27/04/1998, an ex parte interim order has been passed in favour of the applicant. Thereafter, the applicant submitted an application of breach of injunction with Exhibit – 6. Further, vide the R.P.A.D letter dated 12/06/98 produced with Exhibit – 64, the principal of the school has been intimated in this regard. But, no reply has been submitted by the school or the Board with respect to the application of breach of injunction. However, the Ld. advocates for both the parties agreed to conduct the hearing of the application for breach of injunction with the final hearing vide order dated 31/03/1999. Further, the applicant has admitted in her cross-examination that “My daughter, Himani studied upto 4th in this school, and she studied there till 1998, i.e. till the year when I was in service”. That is, according to the applicant herself, she was in service till the academic year 1997-98 and therefore, no question of breach of injunction arises in these circumstances. Thus, considering the pleadings made, documents and oral evidences produced, the contention on behalf of the applicant that the school or the Board made breach of injunction is not accepted. (13) As discussed and held above, it is held that the applicant has served in the respondent school from 02/07/87 to the academic year 1987-88, further, she has served in the academic years 1989-90 and 1990-91, and thereafter, she has served in the academic years 1994-95, 1995-96 and 1997-98, and the representation with respect to the disputes with the Board was made to the Director of Primary Education for the first time through the letter dated 15/09/97 as held earlier. That is, prior to that, the applicant could not prove the fact that any representation was made that the Board gives her less salary, she is not allowed to put signature in the muster roll, her signature has been obtained on a blank paper by coercion or she was coerced to write that she serves as a teacher on honorary basis/on honorarium. And if the Board was actually exploiting or harassing the applicant, she could not have remained silent without taking any action or submitting any application for 10 years since 1987. As it is admitted by the applicant herself in the cross-examination, her husband was associated in the activities of the Teachers Association in other school at the respective time. However, as held earlier, the applicant’s qualification was of a trainee at the respective time and she has served in the respondent school, and as it is not proved that the applicant had made any representation regarding less salary or allowances prior to 1997, it is held that she is entitled for the difference of salary and allowances as per the government rules and regulations for the period she has served for three years before the date of application i.e. for May, 1995 to academic year 1997-98. The applicant could not produce any resolution or circular regarding the fact that the teachers of the recognised private primary schools are entitled for the medical allowance. Therefore, the demand for the medical allowance is not accepted and no case of breach of injunction is proved. As per the details and facts stated above, the judgements produced on behalf of the applicant are respectfully not applicable in this application. (14) The respondent school and the school board are hereby ordered that the salary and allowances and the amount of difference of salary and allowance paid shall be immediately paid to the applicant through account payee cheque for her period of service on trainee basis from May, 1995 to April, 1998 as per the government rules and regulations, and a fixation in this regard shall be made before the concerned authority. Thus, this application of the applicant is finally disposed of. No order as to cost. This order has been dictated in open court. Sd/- (N.H. Shah) Tribunal Judge.” 11. Thus, this application of the applicant is finally disposed of. No order as to cost. This order has been dictated in open court. Sd/- (N.H. Shah) Tribunal Judge.” 11. Upon perusal of the aforesaid impugned order, the Tribunal held that the petitioner – employee served in the respondent School from 2.7.1987 to the academic year 1987-88. Further she served in the academic year 1989-90 and 1990-91 and thereafter served in the academic year 1994-95, 1995-96, 1996-97 and 1997-98. The petitioner employee for the first time made representation to the Director of the Primary Education on 15.9.1997. 11.1 The Tribunal has arrived at findings of fact that prior to the aforesaid, the petitioner employee has failed to prove that any representation was made prior thereto and that the petitioner employee is not allowed to put signature in the Muster-roll, her signature has been obtained on blank paper by coercion and that she was forced to write that she serves as teacher on honorary basis or on honorarium. There is no document produced on record indicating that the petitioner ever raised any objection to the letter dated 2.3.1998 written by her to the school authority requesting to absorb her in regular post as she was working on honorary basis. In view of the aforesaid, in the opinion of this Court, it can be inferred that the petitioner was working on honorary basis and was being paid honorarium. It is also not proved that the petitioner employee made representation regarding receiving less salary or allowance prior to 1997. 11.2 It is also a finding of fact arrived at by the Tribunal that the applicant – petitioner herself in the cross-examination admitted that her husband was associated in the activities of Teacher Association in other schools at the said point of time. The qualification of the petitioner – employee was of a trainee at the relevant point of time and she served in the respondent school. 11.3 The Tribunal has also held that the petitioner continued in service till she resigned in the year 1998 i.e. she has admitted in her cross-examination that, “my daughter, Himani studied upto 4th standard in this school, and she studied there till 1998 i.e. till the year I was in service”. According to the applicant herself she was in service till the academic year 1997-98 and, therefore, there was no question of breach of injunction. 12. According to the applicant herself she was in service till the academic year 1997-98 and, therefore, there was no question of breach of injunction. 12. In the opinion of this Court, the Tribunal, however, erred in directing that the salary, allowances and the amount of difference of salary and allowance be paid to the petitioner employee through account payee cheque for her period of service from May, 1995 to April, 1998 as per the Government Rules and Regulations and fixation in this regard be made before the concerned authority. 13. Though the respondent school has also challenged the impugned judgment and order 22.8.2006 passed by the learned Member of Gujarat Primary Education Tribunal, Ahmedabad in Application No.59 of 1998 to the extent that no appointment order is given to the petitioner. The petitioner never signed Muster-roll or any pay-bill. The Tribunal has committed an error in denying that the respondent No.1 was an honorary teacher, and in neglecting the fact that no appointment order is given to her. For sake of convenience the petitioner of the Special Civil Application No.17206 of 2007 is referred to as the respondent No.1 in the Special Civil Application No.12036 of 2007. 14. The following observations of the Tribunal are unchallenged. (a) The opponent school is a non-granted private primary school. (b) The Tribunal has held that the petitioner has performed her duty in opponent school but has not decided that the petitioner was appointed in the respondent school by way of regular appointment. (c) The Tribunal has noted that the petitioner has not performed her duty during 1988-89, 1991-92, 1992-93, 1993-94, 1996-97. (d) The Tribunal has observed that, letter dated 2.3.1998 wherein the petitioner has stated, “herself as honorary teacher, is not under duress. (e) The petitioner cannot remain silent for 10 years without initiating any proceedings against the school Management, when her husband is involved in teachers’ union activities. (f) The Tribunal has held that there is no provision for honorary teacher in the Primary Education Act. One who serves voluntarily without appointment, without salary, is considered as “honorary”. The Oxford Dictionary meaning “honorary” in general terms is “unpaid”, “earn salary”. 15. The petitioner is unable to prove the application dated 2.3.1998 duly produced at page-212 in her cross (page-159). One who serves voluntarily without appointment, without salary, is considered as “honorary”. The Oxford Dictionary meaning “honorary” in general terms is “unpaid”, “earn salary”. 15. The petitioner is unable to prove the application dated 2.3.1998 duly produced at page-212 in her cross (page-159). Upon perusal of the aforesaid impugned order, once it is held that the petitioner herein is not entitled to the benefit of the pay-scale of Rs.1200-2040 in line with the Government Resolution, the order whereby it is directed that the petitioner be granted the benefit of pay-scale of the State Government is required to be interfered with. Once it is held that the petitioner was not appointed by the regular appointment and the petitioner continued in service for more than 10 years without dispute with regard to the same and in absence of any appointment order that is produced on record. The aforesaid direction is hereby quashed and set aside by directing the respondent School to pay the honorarium wages for the period from May, 1995 to April, 1998 with the interest at the rate of 6% for the said period, within a period of eight weeks from the receipt of this order. 16. For the foregoing reasons, the Special Civil Application No.12036 of 2007 is not entertained and stands disposed of. 17. The Special Civil Application No.17206 of 2007 stands allowed accordingly.