The High Court of Bombay comprising of a single judge bench of Justice Shri Z.A. Haq in the present case of Kanhaiyyalal v. Bhartiya Jagruti Shikshan Sanstha and others, discussed “Whether the principles of termination laid down under rule 27 of the Rules of 1981 are required to be followed while effecting termination under rule 25A of the Rules of 1981?”
Facts of the case
In the present case, the petitioner was a permanent employee of Society (Respondent No.1) and was rendering his services as Assistant Teacher at School (Respondent No.2). Society, on receipt of a letter from the Education Officer (Respondent No.3), regarding withdrawal of the recognition of School, issued an order to petitioner, thereby terminating the service of the petitioner with effect from the same date. According to the petitioner, he was not responsible for the withdrawal of recognition of the School. The petitioner challenged his termination order before School Tribunal (Respondent No.5) wherein, the petitioner got partial success. The termination order issued to the petitioner was set aside by the Tribunal. The Tribunal directed the Education Officer to include the name of petitioner in the list of surplus Teachers maintained by him. The judgment to this effect was rendered by the Tribunal. The petitioner had by then already turned 58 years and was to superannuate. The petitioner expected that the Tribunal appropriately consider the fast-approaching date of his superannuation, just three days after and would appropriately mold the relief by granting continuity of service, back-wages, and other retirement benefits to the petitioner. As that did not happen, hence the present case.
Contentions of the parties:
According to learned Advocate for the petitioner, the answer to the question; “Whether the principles of termination laid down under rule 27 of the Rules of 1981 are required to be followed while effecting termination under rule 25A of the Rules of 1981?”, must be given in the affirmative, as the intention of the Legislature would never be to cause loss to one set of employees, while affording protection to the other set of employees, though both the sets of employees are similarly situated in terms of consequences that visit them once there is cessation of the employer-employee relationship, whether by way of termination of the service due to closure of the school or retrenchment on account of reduction of establishment owing to reduction in the number of classes or divisions, fall in the number of pupils resulting in reduction of establishment, change in the curriculum affecting certain category of employees, closure of course of studies and any other bona fide reasons of similar nature under rule 26(1) of Rules, 1981. He submitted that the legislature may have used different terms, i.e. “termination” and “retrenchment” to indicate snapping off employer-employee relationship but the effect and consequences which flow after the termination of the service or retrenchment of a permanent employee are similar in nature for the employee subjected to the termination or the retrenchment.
Learned Advocate for respondent Nos.1, 2 and 4 would not agree with the contentions of the learned Advocate for the petitioner. In his opinion, rule 25A is independent of rule 27 and both operate in different situations. He submitted that while rule 25A of the Rules, 1981 deals with a situation of termination of a permanent employee arising from the abolition of posts due to closure of the school, whether voluntary or by way of de-recognition of the school, rule 27 lays down the principles to be followed in case of termination of service of an employee in the event of his retrenchment, which would take place under rule 26 on any of the grounds mentioned in the clauses (i) to (v) of sub-rule (1) of rule 26. He pointed out that rule 25A specifically omits reference to the principles stated in rule 27 and instead gives its own procedure which must be followed, on the happening of the event of closure of school, as contained in sub-rule (2) of rule 27. He further submitted that the fact that different procedure has been prescribed under rule 25A to deal with a permanent employee whose service is to be terminated, which is not similar to the one mentioned in rule 27, would itself show that it was the intention of the legislature to make rule 25A as independent of rule 27.
Learned Government Pleader for respondent No.3 submitted that though the situations dealt with by rule 25A and rule 26 of the Rules, 1981 are different and distinct, the position of rule 27 qua rule 25 A is not so. He further submitted harmonious interpretation of rules 25 A and 27 (d) is necessary.
Learned independent Advocate, submitted that although the situations contemplated under rule 25A and rule 27(d) are different in the sense that rule 25A deals with the “termination of an employee”, and rule 27(d) speaks about “retrenchment of an employee”, it cannot be said with any certainty that rule 27(d) would always exclude the situation of rule 25A of the Rules 1981.
Learned independent Advocate submitted that when rule 26, which earlier dealt with the situation of closure of the school in its entirety, deals after the 1987 amendment only with the situation of partial closure of the business of school or closure of some course run by the school leading to retrenchment of surplus employees, which may be for a temporary period of time, and not the closure of the school as a whole, it is not possible to accept the proposition put forward by learned Advocate for the petitioner that rule 27(d) would govern the termination of an employee contemplated under rule 25A of the Rules, 1981.
Courts observation and judgment:
The Hon’ble court in the present case remarked, “In the result, for the reasons stated hereinabove, we answer the question “Whether the principles of termination laid down under rule 27 of the Rules of 1981 are required to be followed while effecting termination under rule 25A of the Rules of 1981?” in terms that the principle of common seniority stated in rule 27(d) read with rule 27(e) of the Rules, 1981 would have to be followed while effecting termination under rule 25A of the Rules of 1981, in a case where the Management runs more than one school.”
Further, the court stated, “Before concluding, we place on record our appreciation for the painstaking effort taken by learned Advocate for petitioner, learned Advocate for respondent Nos.1, 2 and 4 and learned Government Pleader and learned independent Advocates in providing insightful assistance to us”
While allowing the case to be heard by the present court, the Hon’ble court stated, “Case be placed before appropriate Bench for its consideration in accordance with law.”
Read Judgment @Latestlaws.com
Picture Source :
