Narendra Sheshrao Patil And ... vs State Of Maharashtra And Others
2016 Latest Caselaw 2331 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                        
                         BENCH AT AURANGABAD




                                               
                         WRIT PETITION NO.5178 OF 2015

    Narendra s/o. Sheshrao Patil,
    Age 51 years, Occu. Service,
    r/o. Plot No.2, Gut No.79/2,




                                              
    Devramnagar, Jalgaon
    and 8 others                                    ..Petitioners

                     versus




                                       
    The State of Maharashtra,
    through Secretary, Higher and 
                                 
    Technical Education Department,
    Mantralaya, Mumbai 32
    and others                                      ..Respondents
                                
                             --
    Mr.B.S.Deshmukh, Advocate for petitioners
      

    Mr.V.S.Badakh, AGP for respondent nos.1 to 3
   



    Mr.S.V.Adwant, Advocate for respondent no.4

    Mr.K.B.Choudhary, Advocate for respondent no.5





    Mr.V.R.Dhorde, Advocate for respondent nos.6 and 7
                             --

                              CORAM  : S.S. SHINDE AND
                                       SANGITRAO S. PATIL, JJ. 





                        RESERVED ON  : APRIL 26, 2016
                      PRONOUNCED ON  : MAY 05, 2016



     




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    JUDGMENT (Per Sangitrao S. Patil, J.) :

Heard.

2] Rule. Rule, made returnable forthwith. By

consent of the parties, the petition is heard

finally.

3] The petitioners, who are working as Lecturers

with respondent no.7 namely, Shree Sant Muktabai

Institute of Technology, Bhikamchand Jain Nagar,

Pimprala Road, Jalgaon, have filed this Writ

Petition under Articles 226 and 227 of the

Constitution of India, seeking the relief against

respondent nos.6 and 7 for releasing their monthly

salaries and allowances from July, 2014 onwards.

They have further claimed directions for taking

necessary action against respondent nos.5 and 7

for withholding their salary from July, 2014

onwards and also for non-payment of contribution

of provident fund, even after deducting the same

from their respective salaries.

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    4]     It   is  the  contention   of   the   petitioners   that 




                                                                      

respondent no.6 - Institution is running

respondent no.7 - Polytechnic and Pharmacy Diploma

College since 1983. The petitioners are working

as Lecturers in different departments e.g.

Polytechnic and Pharmacy of respondent no.7.

Respondent nos.6 and 7 withheld the salaries of

the petitioners working in Polytechnic from June,

2014 and that of Pharmacy department from July,

2014, without assigning any reasons, which is in

contravention of A.I.C.T.E. Regulations. It is

further stated that respondent nos.6 and 7

deducted provident fund contributions from the

salaries of the petitioners during the year 2013-

2014, however, the same have not been remitted to

the office of respondent no.5 i.e. the Provident

Fund Commissioner, Nashik. By not depositing the

contributions of provident fund with respondent

no.5, respondent nos.6 and 7 have invited penal

action under the provisions of the Employees'

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Provident Fund and Miscellaneous Provisions Act,

1952 (for short "the Act")

5] Though the petitioners made several

representations to respondent nos.6 and 7 for

disbursing the amount of their respective salaries

and also to deposit the contributions of their

provident fund with the office of respondent no.5,

respondent nos.6 and 7 did not pay any heed and

withheld such payments on the ground that

respondent no.7 is being run on non-grant basis

and respondent no.6 is short of funds. It is the

case of petitioners that respondent nos.6 and 7

are having sufficient funds to pay the salaries as

well as contributions of provident fund of the

petitioners, however, the payments have been

withheld with a view to take revenge of the

petitioners because they had filed Writ Petition

No.2608 of 2006 for grant of pay and perks at par

with the Government Polytechnic and Pharmacy

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Institutions. On these grounds, this Writ Petition

has been filed by the petitioners for the above-

stated reliefs.

6] Respondent no.5 filed reply (page 25) and

stated that considering the allegations made

against respondent nos.6 and 7, directions have

been given to the Area Enforcement Officer to

visit the establishments of respondent nos.6 and

7, to verify the records and if any irregularity

was noticed, to file prosecution for non-

compliance of any of the provisions of the Act.

7] Respondent nos.6 and 7 filed reply dated

28.09.2015 (page 27A) and tried to justify non-

payment of the salaries to the petitioners on the

ground that respondent no.6 - Institution is

running respondent no.7 on non-grant basis. It

has to depend on the fees collected from the

students for paying salaries and meet other

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expenses. Respondent no.7 did not get sufficient

number of students for the First, Second and Third

year courses in 2014-2015. Due to drought

situation, the students, most of whom belong to

the families of agriculturists, could not pay the

fees either partly or fully. The Government also

did not release the scholarship of the students to

the tune of Rupees Eighteen Lakhs. The income of

respondent no.6 is considerably less than the

expenditure thereof. It is stated that the

salaries of the petitioners were not withheld by

respondent nos.6 and 7 deliberately or with a view

to take revenge against the petitioners. It is

further stated that the salaries of petitioner

nos.1 to 3, 5 to 7 and 9 have been paid upto

November, 2014 and that of petitioner nos.4 and 8

upto December, 2014. It is stated that steps are

being taken to generate funds to pay the salaries

of the petitioners. It is further stated that the

provident fund contributions have been regularly

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deposited by respondent nos.6 and 7 with

respondent no.5. On these grounds, it is prayed

that the Writ Petition may be dismissed.

8] The petitioners filed rejoinder dated

27.10.2015 (page 85) and denied the contentions of

respondent nos.6 and 7 taken in their reply. They

reiterated their case against respondent nos.6 and

7 as has been summarised above.

9] Respondent nos.6 and 7 filed affidavit-in-

reply to the rejoinder of the petitioners (page

122) stating therein that one month salary of the

petitioners has been paid on 21.12.2015. It is

stated that the properties of respondent no.6 have

been put to sell to meet the administrative

expenditure of respondent no.6 including payment

of salaries of the petitioners. Respondent nos.6

and 7 reiterated the grounds for non-payment of

salaries of the petitioners, which were taken by

them in their reply at page 27A.

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10] Respondent nos.6 and 7 filed additional

affidavit-in-reply (page 212) on 20.04.2016 and

stated that with a view to provide succor to the

petitioners, by 30.07.2016, it would be possible

to pay the salaries of petitioner nos.1 to 3, 5 to

7 and 9 for the months of May, 2015 and June, 2015

as well as salaries of respondent nos.4 and 8 for

the month of June, 2015. It is further stated that

the salaries of the petitioners from July, 2015 to

April, 2016, would be tried to be paid at the

earliest, depending upon the financial condition

of respondent nos.6 and 7.

11] From the above pleadings of the petitioners on

one hand and that of respondent nos.6 and 7 on the

other, it is crystal clear that the appointments

of the petitioners as Lecturers by respondent

nos.6 and 7 in Polytechnic and Pharmacy

departments are not in dispute. The petitioners

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are working as such, with respondent nos.6 and 7.

Respondent nos.6 and 7 have not denied their

liability to pay the salaries to the petitioners.

12] The learned counsel for respondent nos.6 and 7

points out to the Balance Sheet (page 37) of

respondent nos.6 and 7 and also the other papers

annexed to the reply of respondent nos.6 and 7, in

order to show that the expenditures of respondent

nos.6 and 7 is more than their income. He submits

that the payment of salaries of the petitioners

has not been withheld by respondent nos.6 and 7

deliberately. He further points out to the

documents showing that the contributions of

provident fund of the petitioners have been

regularly deposited by respondent nos.6 and 7 with

respondent no.5. He, therefore, submits that the

petitioners are not liable to get any reliefs as

prayed for and prays that the Writ Petition may be

dismissed.

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13] As against this, the learned counsel for the

petitioners, relying on the judgment in the case

of Teachers Association for Non-Aided

Polytechnics, registered Association of Teachers

of Non-Aided Polytechnics, through its Bhusawal

Unit President, A.V. Anilkumar and ors. Vs. Hindi

Seva Mandal, Bhusawal, through its President and

ors, 2003(Supp)Bom.C.R.846, contends that the

financial incapacity of respondent nos.6 and 7

cannot be taken as an excuse for non-payment of

salaries of the petitioners. In that case,

petitioner no.1 was an association of the teachers

of non-aided polytechnics, whereas petitioner

nos.2 to 31 were the members of teaching and non-

teaching staff of Shri Sant Gadge Baba

Polytechnic, Bhusawal, which was run by Hindi Seva

Mandal, Bhusawal. The Directorate of Technical

Education, Government of Maharashtra had issued a

communication dated 29.09.1995 addressed to all

the Principals of the private technical un-aided

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colleges/polytechnic institutes calling upon them

to pay salaries and allowances, pension, provident

fund, gratuity, medical facilities, leave benefits

etc. to the employees. Respondent no.1 -

Institution refused to pay the salaries and other

perks of the petitioners on various grounds and

one of the grounds was the financial incapacity of

the Institution. After considering the fact that

due to implementation of the Fifth Pay Commission

recommendations, the financial burden of un-aided

private management had drastically hiked and that

the Government of Maharashtra had revised the fees

payable to such colleges for the academic years

2001 onwards, this Court held that the Management

cannot take shelter of financial incapacity to pay

the salaries and other allowances to its

employees.

14] When respondent nos.6 and 7 took a conscious

decision to run Polytechnic and Pharmacy college,

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it follows that they must have shown their sound

financial position while seeking recognition to

their College. If that be so, it is needless to

state that they owe the responsibility to pay the

salaries and other allowances to the Lecturers

engaged by them. It is absolutely unacceptable

that respondent nos.6 and 7 would engage the

petitioners to render their services as Lecturers

and would raise their hands when the question of

payment of their salaries and allowances would

crop up, on the untenable ground of financial

incapacity. One can imagine the plight of the

petitioners who are made to work by respondent

nos.6 and 7 by withholding their salaries and

allowances for considerably long a period. It

would be difficult for the petitioners and their

family members to survive without salaries and

allowances. The petitioners have a legitimate

right to receive salaries and other allowances as

admissible to them regularly. In the

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circumstances, in view of the above cited

decision, we are not at all inclined to accept the

explanation of respondent nos.6 and 7 that for

want of sufficient funds, they could not pay the

salaries to the petitioners in time.

15] Respondent nos.6 and 7 have given an offer to

pay the salaries and allowances of the petitioners

for the months of May, 2015 and June, 2015 by

31.07.2016 and try to pay their salaries from

July, 2015 to April, 2016 at the earliest,

depending upon financial condition of respondent

nos.6 and 7. This offer is ex-facie ridiculous.

Such an offer does not at all appeal to the

reason. In the circumstances, we are not inclined

to show indulgence to respondent nos.6 and 7 to

pay the salaries and allowances of the

petitioners, so belatedly.

16] Respondent nos.6 and 7 have produced certain

Challans whereunder, they have deposited the

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contributions of the provident fund of the

petitioners in the office of respondent no.5. The

learned counsel for the petitioners could not show

that any amount, that has been deducted by

respondent nos.6 and 7 from the salaries of the

petitioners, has not been deposited with

respondent no.5. Therefore, the relief claimed by

the petitioners on the allegations of non-payment

of contributions of provident fund by respondent

nos.6 and 7 cannot be granted.

17] So far as arrears of salaries and allowances

of the petitioners till the month of April, 2016

are concerned, to meet the ends of justice, we

think fit to extend the time of three months to

respondent nos.6 and 7 to clear the same.

However, respondent nos.6 and 7 shall pay the

salaries and allowances to the petitioners from

the month of May, 2016 regularly, on or before the

Tenth day of each succeeding month.

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18] With the above directions, Rule is made

absolute to that extent. The Writ Petition stands

disposed of accordingly. No costs.

[SANGITRAO S. PATIL, J.] [S.S. SHINDE, J.]

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