Smt. Savitri Pushpashil Patel vs The President, Shri Ganesh ...
2021 Latest Caselaw 15507 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR.

                      LETTERS PATENT APPEAL NO.05 OF 2013
                                       IN
                        WRIT PETITION NO.3470 OF 2006 (D)


Savitri Pushpashil Patel
Resident of Lala Lachpat Rai Ward,
Tahsil and District Bhandara                           ... Appellant

-vs-

1. The President,
   Shri Ganesh Shikshan Sanstha,
   Bhandara, Tahsil and District Bhandara

2. The Secretary,
   School Committee,
   Shri Ganesh High School, Bhandara,
   Tahsil and District Bhandara

3. Ganesh High School, Bhandara
   Tahsil and District Bhandara
   Through its Head Master,
   resident of Takiya Ward,
   Near Rajiv Gandhi Chowk,
   Bhandara

4. The Education Officer (Secondary)
   Zilla Parishad, Bhandara,
   Tahsil and District Bhandara                      ... Respondents.


Shri Ram Heda, Advocate with Shri Anand Parchure, Advocate for appellant.
Shri S. S. Ghate, Advocate for respondent Nos.1 to 3.
Smt S. Jachak, Assistant Government Pleader for respondent No.4.

CORAM : A. S. CHANDURKAR AND G. A. SANAP, JJ.

Arguments were heard on    : October 12, 2021
Order is pronounced on      : October 28, 2021

Order : (Per : A. S. Chandurkar, J.)

Do the provisions of Section 11(3) of the Maharashtra Employees

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of Private Schools (Conditions of Service) Regulation Act, 1977 provide an

independent remedy to a successful employee to approach the School

Tribunal for seeking enforcement of the order passed by the School Tribunal

in his favour or are the said provisions merely recommendatory in nature and

in aid of directions issued by the School Tribunal under Section 11(2) while

deciding an appeal under Section 9 ?

2. The facts giving rise to the aforesaid questions are that the

appellant was appointed as an Assistant Teacher on 01/08/1986 at the

secondary School run by the respondent Nos.1 and 2. The services of the

appellant were terminated on 07/05/1988 which led her to file an appeal

under Section 9 the Maharashtra Employees of Private Schools (Conditions of

Service) Regulation Act, 1977 (for short, the Act of 1977). The learned

Presiding Officer, School Tribunal Nagpur by his judgment dated 29/11/1988

allowed the appeal and directed reinstatement of the appellant from

07/05/1988 in the pay scale of Rs.355-760/-. The Tribunal also ordered the

Management to permit the appellant to resume duties forthwith. The

Management being aggrieved by the said judgment challenged the same in

Writ Petition No.2873/1988. By an interim order dated 22/12/1988 the

judgment of the School Tribunal came to be stayed. The said writ petition

however was dismissed for want of prosecution on 19/02/1997. No steps

were taken for having the said writ petition restored. The appellant attained

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the age of superannuation on 07/05/2002 and thus retired from service. On

01/03/2005 the appellant issued a registered notice to the Management

stating therein that the order passed by the School Tribunal had not been

implemented despite dismissal of Writ Petition No.2873/1988. The

Management was therefore called upon to comply with the order passed by

the School Tribunal within a period of eight days failing which it was stated

that the appellant would take further steps against the Management under

Section 11(3) of the Act of 1977. Since no steps as contemplated were taken

by the Management the appellant on 31/03/2005 filed an application under

Section 11(3) of the Act of 1977 praying therein that appropriate directions

be issued to the Management to enable enforcement of the order dated

29/11/1988 passed in the appeal preferred by the appellant and emoluments

be paid to the appellant by directing the same to be deducted from the grants

admissible to the School.

Reply was filed to the aforesaid application on 25/04/2005

opposing the same. It was pointed out that the appellant had attained the age

of superannuation and that in absence of any directions by the School

Tribunal to pay any emoluments to the appellant till the date of

superannuation, the application was liable to be rejected. The learned

Presiding Officer considered the aforesaid application and by his order dated

24/04/2006 was pleased to direct the Management to pay back-wages to the

appellant from 07/05/1988 till her superannuation. The Education Officer

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was directed to deduct the arrears of emoluments for the aforesaid period as

per the Pay Scale applicable and pay the same to the appellant within period

of ninety days from receipt of copy of the order.

3. The Management being aggrieved by the aforesaid order

challenged the same in Writ Petition No.3470/2006 and learned Single Judge

by his judgment dated 16/06/2011 was pleased to allow that writ petition by

holding that the directions issued by the School Tribunal to the Education

Officer to deduct the arrears of emoluments to which the appellant was held

entitled were beyond jurisdiction. The order passed by the School Tribunal

was thus set aside. The appellant being aggrieved by that judgment preferred

Letters Patent Appeal No.20/2012. By the judgment dated 07/02/2012 the

Division Bench observed that in view of directions that the appellant was to

be reinstated forthwith on 29/11/1988, the claim for wages after that period

could not be viewed as back-wages. This aspect not having been considered

by the learned Single Judge, the judgment of the learned Single Judge in

Writ Petition No.3470/2006 was set aside. The proceedings in writ petition

were directed to be decided afresh. Accordingly after restoration of that writ

petition the learned Single Judge decided the same on 11/06/2012.

Considering the question as to whether the appellant was entitled to back-

wages from 07/05/1988 till the date of her notional reinstatement on

29/11/1988 it was observed that there was no direction to pay back-wages.

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As regards entitlement to arrears of salary from 29/11/1988 till the appellant

attained age of superannuation on 07/05/2002 it was held that the School

Tribunal had no jurisdiction under any of the provisions of the Act of 1977 to

grant relief of payment of arrears of salary. On that premise the learned

Single Judge set aside the order passed by the School Tribunal and allowed

the writ petition. It is this judgment of the learned Single Judge that is

challenged in the present Letters Patent Appeal.

4. Shri R. Heda, learned counsel for the appellant submitted that the

learned Presiding Officer had rightly held the appellant entitled to back-

wages from 07/05/1988 till her age of superannuation. According to him

though the judgment of the School Tribunal dated 29/11/1988 was

challenged by the Management by preferring Writ Petition No.2873/1988 the

said writ petition was dismissed for want of prosecution on 19/02/1997. As

a result the order passed by the School Tribunal stood restored and as the

appellant was directed to be reinstated from 07/05/1988 it was clear that she

was entitled for back-wages from that date. As the Management did not

reinstate her services despite dismissal of the writ petition, it was the

responsibility of the Management to pay her emoluments as directed till she

attained the age of superannuation. The Management having prevented the

appellant from discharging duties, there was no reason not to direct the

Management to pay her emoluments for the entire period. He further

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submitted that merely because there was no specific direction to pay back-

wages in the judgment of the School Tribunal dated 29/11/1988 that would

not dis-entitle the appellant from receiving back-wages as the order of

termination dated 07/05/1988 had been set aside. In that regard he relied

upon a decision in Manorama Verma (Smt) vs. State of Bihar and ors. 1994

Supp(3) SCC 671.

As regards the finding recorded by the learned Single Judge that

the provisions of Section 11 did not empower the School Tribunal to grant

relief of emoluments as was done by the School Tribunal the learned counsel

placed reliance on the judgment of the Division Bench in Mohammedi Fida

Hussain vs. State of Maharashtra 1986 (88) Bom. LR 557 to urge that the

remedy provided by Section 11(3) of the Act of 1977 was independent in

nature and it could be exercised even subsequent to passing of an order

under Section 11(2) of the Act of 1977. He thus submitted that the School

Tribunal rightly exercised jurisdiction while allowing the application

preferred under Section 11(3) of the Act of 1977. He also placed reliance on

the decisions in Sudhakar vs. State of Maharashtra and ors. (2000) 4 Bom. CR

113, Badarunnisa Begam Sheikh Abbas vs. State of Maharashtra (2004) 2 Mh.L.J.

407, Mohammad Salam Anamul Haque vs. S. A. Azmi and ors. (2001) 1 Mh.L.J.

249, Vilas Shankarrao Deshmukh and ors. vs. S. A. Ghode and ors. (2001) 1

Mh.L.J. 261, Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalay

(2013) 10 SCC 324 and Union of India vs. Madhusudan Prasad (2004) 1 SCC 43

to substantiate his contentions. It was urged that the learned Single Judge

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therefore was not justified in setting aside that order. He thus submitted that

the order passed by the School Tribunal was liable to be restored.

5. Per contra Shri S. S. Ghate, learned counsel for the Management

supported the judgment of the learned Single Judge. He submitted that since

the School Tribunal while ordering reinstatement of the appellant had not

directed payment of any back-wages, it was not open for the School Tribunal

in proceedings under Section 11 of the Act of 1977 to grant that relief. By

not granting that relief while deciding the appeal it was deemed that the

relief of grant of back-wages stood refused by the School Tribunal. In that

context the learned counsel referred to the decisions in Bahujan Vikas

Education Society and anr. vs. Mrs Vidya Devi w/o Abhimanyu Raut and ors. 2006

(5) Mh.L.J. 124, Rajasthan State Road Transport vs. Shayam Biharilal Gupta

2005(7) SCC 406 and General Manager Haryana Roadways vs. Rudhan Singh

2005(5) SCC 591. The relief that was not granted by the School Tribunal

while deciding the appeal under Section 9 of the Act of 1977 could not be

subsequently granted in proceedings under Section 11 of the Act of 1977. He

then submitted that the order directing reinstatement had been challenged by

the Management in Writ Petition No.2378/1988 and this Court had stayed

the order passed by the School Tribunal. The order of stay operated till

19/02/1997. Even thereafter the appellant did not take any steps to have

her services restored. The application under Section 11(3) of the Act of 1977

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was filed after almost three years from attaining the age of superannuation.

Even on that count there was no basis to direct payment of back-wages from

07/05/1988 till the date of the appellant's superannuation. It was his

contention that if the order passed in the appeal under Section 9 of the Act

of 1977 was not being complied with, it was for the appellant to have

invoked the remedy under Section 13 of the Act of 1977. The same was not

done and resort was taken of the provisions of Section 11 of the Act of 1977.

He therefore submitted that the learned Single Judge rightly found that there

was no jurisdiction whatsoever with the School Tribunal for being exercised

under Section 11(3) of the Act of 1977 for grant of relief to the appellant

that too at a belated stage. He also placed reliance on the decisions in R. N.

Dey vs. Bhagyabati Pramanik 2000(4) SCC 400, Shaikh Badarunnisa Begum vs.

State of Maharashtra 2004 (2) Mh.L.J. 407, Dwarka Bahu Uddeshiya vs. Presiding

Officer School Tribunal 2011 (1) Mh.L.J. 216, Mohammad Salam vs. S. A. Azmi

2001 (1) Mh.L.J. 249, M.P. State Electricity Board vs. Jarina Bee 2003 (6) SCC

141 and Chennai Metropolitan Water vs. T. T. Murali Babu 2014 (4) SCC 108 to

substantiate his contentions. He thus submitted that there was no reason to

interfere with the judgment of the learned Single Judge.

6. We have heard the learned counsel for the parties at length. We

have thereafter given due consideration to their submissions as well as the

relevant statutory provisions that are found applicable.

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In our considered opinion, Section 11(3) of the Act of 1977 does

not provide any independent remedy to a successful employee to approach

the School Tribunal for seeking enforcement of the order passed by the

School Tribunal in his favour. The said provision being merely

recommendatory in nature, it is only in aid of the directions issued by the

School Tribunal under Section 11(2) of the Act of 1977.

7. It is an undisputed position on record that the School Tribunal

allowed the appeal preferred by the appellant under Section 9 of the Act of

1977 on 29/11/1988. After directing reinstatement of the appellant the

Management was further directed to permit the appellant to resume her

duties forthwith. This judgment of the School Tribunal was challenged by

the Management in Writ Petition No.2872/1988 and as stated earlier on

22/12/1988 the order of reinstatement was stayed until further orders. This

writ petition came to be dismissed for want of prosecution on 19/02/1997.

In the application dated 31/03/2005 preferred by the appellant under

Section 11(3) of the Act of 1977 it has been averred in paragraph 4 that the

Management failed to comply with the order of the Tribunal dated

29/11/1988 despite the fact that the writ petition preferred by the

Management had been dismissed long back. In paragraph 5 it has been

pleaded that in these facts since the Management had failed to comply with

the order of the Tribunal, the appellant was compelled to file the said

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application to enforce the order dated 29/11/1988. In reply it was stated by

the Management that the appellant had attained the age of superannuation

and that she had not made any attempt to enforce the order passed by the

School Tribunal. On that count it was stated that the proceedings were

barred by limitation and also liable to be dismissed.

8. In this context it would be necessary to refer to the provisions of

Section 11 of the Act of 1977. Section 11(1) empowers the Tribunal to

dismiss an appeal if it is found that the appeal does not pertain to any of the

matters specified in Section 9 or it is not maintainable or there is no sufficient

ground to interfere with the order of the Management. In the present facts

said provision is not very relevant. Under Section 11(2) the nature of

directions that can be issued by the Tribunal while setting aside the order of

the Management either partially or wholly have been stipulated. These

directions include the direction to reinstate the employee on the same post or

on a lower post or grant any further relief as provided therein. In the present

case the direction issued by the School Tribunal on 29/11/1988 indicates

exercise of jurisdiction under Section 11(2) (a) of the Act of 1977 while

directing reinstatement of the appellant. Sub-sections (3) and (4) of Section

11 being relevant for the present adjudication, the same are reproduced

herein :

(3) It shall be lawful for the Tribunal to recommend to State

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Government that any dues directed by it to be paid to the employee, or in case of an order to reinstate the employee any emoluments to be paid to the employee, or in case of an order to reinstate 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 Act of 1977 thus recognises the power of the

School Tribunal to give appropriate reliefs and directions while deciding an

appeal under Section 9. The nature of the reliefs that could be granted by

the Tribunal are stated in Section 11(2). Such reliefs include the relief of

reinstatement and payment of emoluments till reinstatement. While granting

such reliefs it is permissible for the Tribunal to recommend to the State

Government that any dues directed by it to be paid to the employee or any

emoluments to be paid to an employee till he is reinstated may be deducted

from the grants due and payable or would become due and payable in future

to the Management may be paid to the employee directly. Such

recommendation if made would form part of the directions issued under

Section 11(2) of the Act of 1977. Such recommendation would therefore be

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in aid of the directions issued by the School Tribunal under Section 11(2) of

the Act of 1977. The directions thus issued would have to be communicated

to the parties in writing and are required to be complied with by the

Management as per provisions of Section 11(4) of the Act of 1977. The use

of the expression "direct/direction" in Section 11(2) and (4) in contra-

distinction with the use of the expression "recommend" in Section 11(3) is

too obvious to be ignored. In this regard we draw support from the

observations of the Honourable Supreme Court in Manohar Manikrao Anchule

vs. State of Maharashtra and anr. AIR 2013 SC 681 wherein it has been held that

a recommendation must be seen in contra-distinction to a direction or a

mandate.

9. Since the learned counsel for the appellant has placed

considerable reliance on the decision in Mohammedi Fida Hussain (supra) it

would be necessary to refer to the facts of that case. The petitioner therein

was employed as an Accounts Clerk. The Management on 03/02/1983

terminated his services and that order was challenged by filing an appeal

under Section 9 of the Act of 1977. The School Tribunal on 03/03/1984

allowed the appeal and remanded the proceedings to the Management for

holding a fair enquiry after complying with the prescribed procedure. The

order passed by the School Tribunal though challenged by the Management

attained finality. The petitioner sought to resume his duties and called upon

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the Management to pay him arrears of salary. Since that was not done, the

petitioner filed an application under Section 11(3) of the Act of 1977 before

the School Tribunal. The School Tribunal held that the Act of 1977 did not

provide for any means for executing the order passed under Section 11(2) of

the Act of 1977. It further held that the provisions of Section 11(3) of the

Act of 1977 could be applied only while deciding the appeal under Section 9

and as no directions under Section 11(3) had been issued by the School

Tribunal while deciding the appeal on 03/03/1984 there was no question of

issuing directions at a later stage. Since the order of the School Tribunal did

not direct the Management to reinstate the petitioner or pay him back-wages

there was no question of asking the Management to do so or recommend to

the State Government to he deduct the amount of arrears of salary.

10. This order passed under Section 11(3) of the Act of 1977 was

challenged before the High Court. It was held by the Division Bench that

though the School Tribunal did not direct reinstatement of the petitioner and

pay him back-wages, by directing holding of an enquiry, it was by implication

clear that the order of termination had been set aside and the petitioner

remained in service of the Management. He was therefore entitled to all

arrears of salary and other emoluments up to that date. Further, as it was

found that no enquiry had been held till the time the writ petition was

decided, the petitioner was entitled to receive from the Management arrears

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of salary and other emoluments till date. In the context of the provisions of

Section 11(3) of the Act of 1977, the Division Bench observed as under :

" The School Tribunal erred in holding in the impugned order that there is no provision in the said Act in regard to the execution of its orders. The provision is in Section 11(3). Thereunder the School Tribunal is empowered to recommend to the State Government that any dues directed by it to be paid to an employee be deducted from the grant due and payable or to become due and payable to a school's management and be paid directly to the employee. The State Government would ordinarily be expected to heed and comply with such recommendation. The remedy provided by Section 11(3) is, therefore, as effective as that of more unorthodox execution. It is an independent remedy and is not to be exercised only at the time when an order is made under Section 11(2). It would ordinarily be exercised upon the employee's application pointing out the failure of the school's management to comply with an order of the School Tribunal directing payment to him.

In the circumstances of this case, the School Tribunal ought to have exercised its powers under Section 11(3) of the said Act upon the petitioner's application. "

11. This decision in Mohammedi Fida Hussain (supra) has been

referred to and considered by another Division Bench in Sudhakar (supra).

The facts of this decision indicate that the services of the employee therein

were terminated and the order of termination dated 19/03/1987 was

challenged by filing an appeal under Section 9 of the Act of 1977. The

School Tribunal allowed the appeal and set aside the order of termination

and directed reinstatement with back-wages. This order of the School

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Tribunal attained finality. The employee sought implementation of the order

passed by the School Tribunal. He moved an application under Section 11(3)

of the Act of 1977 before the School Tribunal and sought recommendation to

be made to the State Government to deduct the amount of salary payable to

him from the grant. That application however remained pending and the

employee filed writ petition seeking enforcement of the order passed by the

School Tribunal. When that writ petition was pending the employee filed a

miscellaneous application under Section 13 of the Act of 1977. The

Management opposed that application on the ground that the writ petition

preferred by the employee was pending before the High Court. The School

Tribunal therefore on that count dismissed the application filed by the

employee under Section 13. One of the questions considered was whether an

alternate efficacious remedy for implementing the order of School Tribunal

was available under Section 11(3) and Section 13 of the Act of 1977. The

Division Bench referred to the decision in Mohammedi Fida Hussain (supra)

and in the facts of the case before it observed that the stand taken by the

Management that the writ petition was not maintainable on account of

existence of alternate remedy did not hold ground. The writ petition was

entertained on merits and while allowing the same it directed the

Management to forthwith reinstate the employee and pay him back-wages

from 17/03/1984 till his reinstatement. It was further directed that the

amount of arrears be deducted from the grants payable to the Management

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and thereafter the same were directed to be paid to the employee.

12. Two decisions of learned Single Judges wherein provisions of

Section 11(3) of the Act of 1977 have been considered are required to be

referred to. In Mohammad Salam (supra) the question that was considered by

the learned Single Judge was whether the High Court should initiate

proceedings in exercise of contempt jurisdiction against the Management for

not complying with the orders passed by the School Tribunal. After

considering various provisions of the Act of 1977 it was held that an order

passed by the School Tribunal was an executable order and that it was open

for the successful employee to approach the School Tribunal that passed the

order to get it executed in accordance with the provisions of the Code of Civil

Procedure, 1908. In paragraph 8 the following observations in the context of

Section 11(3) have been made :

"8. .... So far as Sub-section (3) of Section 11 of the Act is concerned, it merely empowers the Tribunal to make recommendation to the State Government. It is further to be seen here that the recommendation made by the Tribunal to the State Government under Sub-section (3) of Section 11 may be of no avail, in case the management is not receiving any grant-in-aid from the State Government.... "

It was further observed that though the legislature while enacting

the Act of 1977 was aware that the remedy of approaching the civil Court for

having the order passed by the School Tribunal executed under provisions of

the Code provided a more effective remedy to the employee. Such intention

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was clear from the provisions of Sections 11(3) and 13 of the Act of 1977.

13. The other decision of learned Single Judge that considers the

provisions of Section 11(3) has been rendered in Vilas Shankarrao Deshmukh

and ors. (supra). In that case the School Tribunal had after setting aside the

order of termination directed reinstatement of the employee within a period

of thirty days of the order and payment of salary from the date of termination

till reinstatement within a period of sixty days of the order. It was further

directed that if the Management failed to pay the back-wages within a period

of sixty days that amount be deducted from the grant admissible to the

School. The employee filed a contempt petition in view of non-compliance of

the directions issued by the School Tribunal. The learned Single Judge

noticed the provisions of Section 11 and especially Sub-section (3) thereof. It

was observed that though the School Tribunal was empowered to make a

recommendation to the State Government to comply with the directions

issued under Section 11(2) of the Act of 1977 there was no outer limit fixed

by the legislature for complying with the recommendations of the School

Tribunal. The State Government was therefore called upon to indicate the

reasonable time that would be required for acting upon the recommendations

or directions of the School Tribunal. An affidavit was accordingly filed and

after considering the same it was held in paragraph 11 as under :

"11. On the basis of the said stand it is possible to hold that when

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recommendation is made by the School Tribunal and if the same is brought to the notice of the State Government or its agency, it is the duty of the authority to forthwith respond to the said recommendation. In case, the school in question is not entitled for grants from the State Government, it would be imperative for the authority to immediately inform the employee concerned that the school is not amenable to any grants. Such intimation should be sent within one month from the receipt of the recommendation or from the date on which the recommendation is brought to the notice of the authority. On the other hand, if the school is amenable to grants from the State Government and in the event no grants are due and payable, even then the authority should immediately bring this fact to the notice of the employee concerned, preferably within a period of one month from the receipt of the recommendation or from the date on which the authority was apprised of the said recommendation. However, if any non-salary grants are available and which are due and payable to the school in question, it would be the duty of the authority to forthwith deduct the amount payable to the employee as per the order of the School Tribunal and make it over to the employee directly. ...."

It was thereafter observed that by taking recourse to the

procedure indicated by the State Government the provisions of Section 11(3)

would become meaningful and effective in larger sense.

14. The decisions in Mohammad Salam and Vilas Shankarrao

Deshmukh and ors. (supra) recognise the fact that under Section 11(3) of the

Act of 1977 the School Tribunal is empowered merely to make a

recommendation to the State Government to deduct the amount due to be

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paid to an employee from the grants that are due and payable or would

become due and payable in future to the Management. It is matter of

common knowledge that grants paid by the State Government to a school are

made admissible subject to complying with various prescribed requirements

by the State Government. Every school in the State does not receive grant-in-

aid from the State Government and there are schools which operate on non-

grant basis. That, the provisions of Section 11(3) in the matter of making

recommendation to the State Government would be effective only with

regard to those schools that receive grant-in-aid and not with regard to those

schools which do not receive grant-in-aid is obvious. This fact has been

noticed in the aforesaid two decisions by observing that the recommendation

made by the School Tribunal to the State Government under Section 11(3)

would not be of any avail in case the Management is not receiving any grant-

in-aid from the State Government. For this reason it has been directed in

Vilas Shankarrao Deshmukh and ors . (supra) that if the school is not receiving

any grant-in-aid, the concerned authority has to immediately inform the

employee concerned that the School is not amenable to any grants. It is thus

clear that recommendation made by the School Tribunal to deduct the

amount of dues payable to an employee would not assist an employee of a

school that does not receive grant or is not entitled to receive such grant. In

any event, Section 11(3) does not empower the School Tribunal to issue any

directions whatsoever to the Management and hence said provisions cannot

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be construed as providing any remedy to a successful employee to have an

order passed in his favour enforced qua the Management. Being merely

recommendatory in nature, Section 11(3) if construed as providing an

independent remedy would be unenforceable being neither a direction nor a

mandate.

15. Another aspect which is jurisdictional in nature is whether an

Authority or Tribunal which has been granted the power to recommend a

course of action can itself enforce its own recommendation in the absence of

any power conferred in that regard ? To put it differently, can a

recommendation inherently carry with it the power of enforceability ?

Under Section 11(3), recommendatory jurisdiction has been

conferred on the School Tribunal and such recommendation has to be made

to the State Government. There is no statutory provision indicating the role

of the State Government after receiving the recommendation made by the

School Tribunal under Section 11(3) of the Act of 1977. Instead, what is

required to be complied with is the direction issued to the Management

under Section 11(2) by the School Tribunal. The School Tribunal has not

and it could not have been clothed with the power and authority to enforce

its own recommendation for what is enforceable is only "any direction"

issued by it under Section 11 to the Management. A relevant distinction as

noticed by the Honourable Supreme Court in Ram Krishna Dalmia vs. Justice S.

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R. Tendolkar and ors. AIR 1958 SC 538 is the one between a decision which by

itself has no force nor any penal effect and a decision which becomes

enforceable immediately or which may become enforceable by some action

being taken. This again indicates that Section 11(3) merely prescribes a

recommendatory course to be followed and it is not in the nature of an

independent remedy for an employee to invoke. This position can also be

gathered from the stand of the State Government as taken and accepted by

the Court in Vilas Shankarrao Deshmukh and ors. (supra).

16. The Division Bench in Mohammedi Fida Hussain (supra) has held

that the remedy provided by Section 11(3) is an independent remedy and is

not to be exercised only at the time when an order is made under Section

11(2) of the Act of 1977. In our view, such interpretation would result in

providing such independent remedy only to those employees of schools

receiving grant-in-aid. This independent remedy would not be available to

employees of schools not receiving grant-in-aid. In this context reference to

the provisions of Section 3(1) of the Act of 1977 is necessary. The said

provisions reads as under :

" 3. Application of Act :

(1) The provisions of this Act shall apply to all private schools in the State of Maharashtra, whether receiving a grant-in-aid from the State Government or not. "

In our view such interpretation of Section 11 (3) making available

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the aforesaid remedy only to schools receiving grant-in-aid would be contrary

to the spirit behind enacting the provisions of Section 3(1) since the

provisions of the entire Act have been made applicable to all private schools

in the State irrespective of the fact whether they are receiving any grant-in-

aid from the State Government or not. An interpretation that results in

negating the effect of any provision of the Act or restricting its application

has to be avoided and it is necessary to harmoniously construe all the

provisions of the Act. Perhaps conscious of the fact that all private schools in

the State would not be admissible to grant-in-aid, the legislature has

therefore conferred merely recommendatory power on the School Tribunal to

recommend to the State Government deduction of the dues directed to be

paid to an employee to be so paid from the grants due and payable to the

Management. On the contrary, the recommendation to be made by the

Tribunal under Section 11(3) is while deciding an appeal under Section 9. In

that process while setting aside the order of the Management, partially or

wholly and issuing directions to the Management under Section 11(2) of the

Act of 1977 the School Tribunal can direct dues to be deducted from the

grants and the amount to be paid to the employee directly. In other words,

the recommendations that can be made by the Tribunal to the State

Government under Section 11(3) are merely in aid of the directions issued

under Section 11(2) of the Act of 1977. Thus what has to be complied by

the Management within the period specified are the directions issued under

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Section 11(2) which position is clear in the light of provisions of Section

11(4) of the Act of 1977. In our view therefore for aforesaid reasons we are

unable to agree with the proposition that Section 11(3) provides for an

independent remedy for seeking compliance of the directions issued by the

School Tribunal as held in Mohammedi Fida Hussain (supra).

17. We may note that the learned Single Judge in Education Society,

Yavatmal vs. Narayan Govindrao Deshpande and ors. 2005(4) Mh.L.J. 417 has

held that Section 11(3) of the Act of 1977 is an independent provision and

said sub-section does not require that the School Tribunal must exercise

power to make recommendation to State Government about deduction from

the grant only while deciding the appeal and not thereafter. It was held that

the School Tribunal could make a recommendation contemplated by Section

11(3) at any time. The argument that direction under Section 11(3) could be

given only while deciding the appeal finally and not thereafter or that the

School Tribunal lost its power to pass such order after deciding the appeal

finally was turned down. In the said case the order of reversion was

challenged by the Head Master and the School Tribunal had dismissed the

appeal under Section 9 of the Act of 1977. The writ petition filed by the

employee was allowed on 08/03/1990 and after setting aside the order of

reversion, the employee was restored to the post of Head Master with

continuity of service and all back-wages. Since this order was not complied

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with entirely a contempt petition was filed in this Court. However since

there was a genuine dispute as regards the effect of the order passed by this

Court it was held that it was not a case of deliberate non-compliance. Liberty

was given to the employee to raise dispute before an appropriate forum.

Thereafter the employee filed an application under Section 11(3) and 13 of

the Act of 1977 claiming the balance amount of salary. The School Tribunal

accordingly directed the Management to pay the arrears of salary and in

default recommended to the State Government to deduct an equal amount

from the grant due and payable to the Management and to pay the same to

the employee.

Since we are of the view that the recommendation under Section

11(3) of the Act of 1977 can be made only while deciding an appeal under

Section 9, we have our doubt as to whether such recommendation could be

made under Section 11(3) at any point of time for the reasons indicated by

us in the foregoing paragraphs.

18. Since we have expressed our respectful inability to agree with the

view taken in Mohammedi Fida Hussain (supra) that the provisions of Section

11(3) of the Act of 1977 provide for an independent remedy for seeking

compliance of the directions issued by the School Tribunal to the

Management, a reference to a larger Bench to resolve the issue is

necessitated. The question that could be considered by the larger Bench is

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as under :

" Do the provisions of Section 11(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 provide an independent remedy to a successful employee to approach the School Tribunal for seeking enforcement of the order passed by the School Tribunal in his favour or are the said provisions merely recommendatory in nature and in aid of directions issued by the School Tribunal under Section 11(2) while deciding an appeal under Section 9 ? "

The Registry to place the papers before the Honourable the Chief

Justice to consider referring the aforesaid question to a larger Bench. Order

accordingly.

`




                  (G. A. Sanap, J.)                          (A. S. Chandurkar, J.)




Asmita