Bombay High Court
B. L. Patil Tantra Niketan, (B. L.Patil ... vs The Statae Of Maharashtra Thru Office Of ... on 14 August, 2024
2024:BHC-AS:32659
902-WP-2758-2019.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
rrpillai CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2758 OF 2019
1. Khalapur Taluka Shikshan Prasarak Mandal
through its Chairman/Secretary Prashant S
Mane having its office at
C/o. Janata Vidyalaya,Khopoli,
Taluka : Khalapur,
District : Raigad, Maharashtra
2. B. L. Tantra Niketan
(B. L. Patil Polytechnic) Khopoli
(Formerly known as Khopoli)
Polytechnic, Khopoli through its Principal
Prashant S. Mane having its office at
..... Petitioners
Taluka : Khalapur, District : Raigad
(Org. Respondent
Maharashtra - 410 203 Nos. 1 and 2
Versus
1. The State of Maharashtra
Through Office of Government Pleader
Civil Appellate Jurisdiction, Bombay High
Court, Mumbai
2. Director of Technical Education, having its
office at: 49, Kherwadi,Aliyavar Jung Road,
Bandra (East), Mumbai-400 041 Org.Respondent No.3
1/39
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3. Vaishali Sudhir Kadam
Aged : 41 years, Occu : Service
An Adult Indian inhabitant
residing at Flat No. 2, Nandadeep
2. Khopoli, Taluka : Khalapur
Org.Appellant
District : Raigad
WITH
INTERIM APPLICATION (ST) NO. 12492 OF 2024
WITH
CIVIL APPLICATION NO. 791 OF 2019
IN
WRIT PETITION NO. 2758 OF 2019
B. L. Tantra Niketan
(B. L. Patil Polytechnic) Khopoli
(Formerly known as Khopoli)
Polytechnic, Khopoli through its Principal
Prashant S. Mane having its office at
Taluka : Khalapur, District : Raigad
Maharashtra - 410 203 ..... Applicant
Versus
1. The State of Maharashtra
Through Office of Government Pleader
Civil Appellate Jurisdiction, Bombay High
Court, Mumbai
Digitally
signed by
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI
2. Director of Technical Education, having its
PILLAI Date:
2024.08.14
19:07:55
+0530
office at: 49, Kherwadi,Aliyavar Jung
Road, Bandra (East), Mumbai-400 041
2/39
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3. Vaishali Sudhir Kadam
Aged : 41 years, Occu : Service
An Adult Indian inhabitant
residing at Flat No. 2, Nandadeep
2. Khopoli, Taluka : Khalapur
..... Respondents
District : Raigad
Mr. P. B. Shah a/w. Mr. K. P. Shah and Mr. Gunjan Shah for the
Petitioners.
Mr. A.I. Patel, Additional GP a/w. Ms. P. J. Gavhane, AGP for the State
- Respondent Nos. 1 and 2.
Mr. Narendra V. Bandiwadekar, Senior Advocate a/w. Mr. Vinayak R.
Kumbhar, Mr. Rajendra B. Khaire, Mr. Aniket S. Phapale i/b. Ms.
Ashwini N. Bandiwadekar for Respondent No. 3.
CORAM : GAURI GODSE J
RESERVED ON : 9th MAY 2024
PRONOUNCED ON : 14th AUGUST 2024
JUDGMENT:
1. Rule. Rule made returnable forthwith.
2. Learned AGP waives notice for respondents nos. 1 and 2, and
Mr Bandiwadekar waives notice for respondent no. 3. In view of the
order dated 24th January 2024 taken up for final disposal.
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FACTS IN BRIEF:
3. This petition arises out of a common Judgment and Order
passed by the School Tribunal allowing the separate appeals filed by
four teachers of petitioner no. 2-school. Though the separate appeals
were decided by a common Judgment and Order, in view of the
submissions made on behalf of the petitioners, all four Writ Petitions
are heard and decided separately.
4. The present petition arises out of Appeal No. 26 of 2016 filed by
respondent no. 3 ("respondent"). Petitioner no. 2 is a polytechnic
institution run by petitioner no. 1 - management. Petitioner no. 2 is a
recognized and permanent unaided institution. Respondent was
appointed as a regular lecturer with effect from 1st July 2008 by order
dated 30th June 2008.
5. It is the respondent's case that she was also working with
petitioner no. 2 - institution between 14th July 2006 to 31st May 2007
and between 2nd July 2007 to 31st May 2008. According to the
respondent, she was appointed during the said period as a lecturer in
the Computer Engineering Department on an ad-hoc basis. According
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to the respondent she was appointed as regular lecturer with effect
from 1st July 2008. Admittedly, the respondent continued on the same
post and on the same pay scale from 1 st July 2008. Respondent was
also granted an annual increment, and her service book was also
maintained.
6. By order dated 11th April 2016, the respondent's service was
terminated by giving three months notice. The termination notice
stated that the number of students had decreased over the last two to
three years, and the management was not able to make payments.
Hence, in view of the financial crisis, the respondent was given notice
stating that her service would come to an end on the expiry of three
months. The said order/letter intimated to the respondent that she
would be granted EPF and gratuity as per the applicable rules.
7. Being aggrieved by the said order/letter, the respondent filed an
appeal under Section 9 of The Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977 ("MEPS Act")
before the School Tribunal challenging the order of termination and
seeking reinstatement with full back wages. In the said appeal, the
respondent filed an application for interim relief, praying for a stay of
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the execution and implementation of the order dated 11 th April 2016
passed by the petitioners. By order dated 2 nd July 2016, the School
Tribunal stayed the implementation of the order/letter dated 11 th April
2016 and directed the petitioners to continue the respondent in service
during the pendency of the appeal. The said order was accepted by
the petitioners.
8. Petitioner no. 1 - Management issued a letter dated 11 th July
2016 intimating the respondent that they are in the process of
challenging the interim order dated 2nd July 2016 before this Court;
hence, the notice period as per the termination notice dated 11 th April
2016 was extended for a further period of two months. However, the
petitioners neither challenged the interim order passed by the School
Tribunal nor complied with the directions.
9. The petitioners filed a written statement in the appeal and
contended about opening a new polytechnic institution on the non-
grant-in-aid pattern of the Government as per the Government
Resolution dated 21st May 1983. The petitioners relied upon the said
Government Resolution to contend that in view of Clause 11 of the
said Government Resolution, the Director of Technical Education
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would not interfere in the administrative and financial affairs of the
management and thus taking into account implementation of the
respective pay scales of their employees, the petitioners had taken a
decision to terminate service of the respondent.
10. The petitioners relied upon the financial documents prepared by
the Chartered Accountant and the bank details to contend that the
petitioners were facing a financial crisis and, hence, had taken the
decision to terminate the service of the respondent. The petitioners
also contended that the respondent was appointed by the Principal of
petitioner no. 2, though there was no resolution authorizing him to do
so. Thus, the petitioners claim that the respondent was a temporary
employee and not entitled to the benefit of a permanent employee.
Hence, it was contended that the petitioners were entitled to terminate
the temporary service of the respondent.
11. The Tribunal framed points for consideration on whether the
respondent proved that she was illegally terminated by the petitioners
and whether she was entitled to the relief as claimed. The Tribunal,
after considering the rival contentions of the parties, allowed the
appeal and disbelieved the case of the petitioners that they were
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entitled to terminate the service on the ground as pleaded by them.
The Tribunal held that the contents of the letter of termination
mandated the procedure of retrenchment. However, the petitioners
failed to follow the procedure laid down under Rule 26 of The
Maharashtra Employees of Private Schools (Conditions of Service)
Rules, 1981 ("MEPS Rules"), permitting the management to retrench
the employees. The School Tribunal disbelieved the case of the
petitioners that the respondent was appointed on a temporary basis
and that the petitioners were entitled to terminate the service without
following due procedure under the MEPS Rules. Thus, the School
Tribunal allowed the respondent's appeal, and the order/letter of
termination dated 11th April 2016 was declared illegal and thus was
quashed and set aside. The petitioners were directed to reinstate the
respondent with full back wages with consequential benefits. Hence,
this petition by the management and the institution.
SUBMISSIONS ON BEHALF OF THE PETITIONERS:
12. Learned counsel for the petitioners submitted that the Tribunal
failed to take into consideration the nature of the appointment letter of
the respondent. He submitted that the procedure for appointment on a
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regular basis was not followed; hence, the respondent was not entitled
to claim permanency. He submitted that the respondent was
appointed on an ad-hoc basis for a fixed period. Hence, she was not
entitled to permanency. Learned counsel for the petitioners further
submitted that the respondent being a temporary employee, the
petitioners were not required to follow any procedure as prescribed
under the MEPS Act and MEPS Rules. He submitted that though the
petitioners were not under an obligation to justify the letter of
termination, the petitioners had intimated to the respondent that due to
financial crisis the management had taken a decision to terminate the
services. Learned counsel for the petitioners further submitted that all
the necessary documents to support the contentions regarding the
financial crisis faced by the petitioners were produced before the
School Tribunal. He submitted that the School Tribunal did not properly
appreciate the supporting documents produced by the petitioners.
13. Learned counsel for the petitioners further submitted that a
perusal of the respondent's appointment order would show that it was
a temporary appointment issued by the Principal, who was not
authorized to make any permanent appointments. Learned counsel for
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the petitioners further submitted that the School Tribunal failed to take
into consideration the nature of the appointment of the respondent
and, without recording any finding on whether the respondent was
appointed on a permanent basis, allowed the appeal by holding that
the termination was illegal. The School Tribunal decided four separate
appeals filed by four teachers who were appointed on different dates
by issuing different appointment orders. Hence, it was necessary for
the School Tribunal to independently decide all four appeals by
examining the nature of the appointment of all four teachers. He thus
submitted that the School Tribunal committed a serious error in holding
that the termination orders were illegal without examining the nature of
the appointment of the respondent and the other three teachers who
were appointed on different dates by different appointment orders.
14. Learned counsel for the petitioners referred to the observations
in the impugned judgment with regard to the petitioners' submissions
on the reduction in the number of students and the financial difficulties
faced by the management. He submitted that the management had
also received closure permission from the Director of the Maharashtra
State Board of Technical Education. He submitted that considering the
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reduction in the number of students and the financial crisis faced by
the management, the respondent was offered alternate employment in
another institution of the petitioner no.1. However, the respondent
turned out to be a rebellious and ungrateful employee who failed to
take into consideration the difficulties faced by the management.
Learned counsel for the petitioners thus submitted that the School
Tribunal erroneously referred to the rules applicable for the
retrenchment of employees and set aside the order of termination.
15. Learned counsel for the petitioners also opposed the grant of
back wages to the respondent. He submitted that the respondent failed
to raise any pleading regarding whether she was unemployed during
the period of termination. Hence, the respondent was not entitled to
seek back wages. Learned counsel for the petitioners relied upon the
Civil Application filed in this petition seeking leave to produce a copy of
Resolution No. 2049 dated 25th February 2016 and the minutes of the
meeting dated 25th February 2016, along with a letter dated 1 st March
2016. Learned counsel for the petitioners submitted that the letter
dated 1st March 2016 and the minutes of the meeting indicate that the
Principal was not authorized to issue appointment orders; however,
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due to oversight, the documents were not produced before the School
Tribunal. He thus submitted that the documents which are sought to be
produced by way of Civil Application would show that the appointment
order of the respondent was not on a permanent basis by following the
necessary procedure prescribed under the MEPS Act and MEPS
Rules framed thereunder.
16. Learned counsel for the petitioners also relied upon a fresh
Interim Application (St) no. 12492 of 2024 filed during the hearing of
the petition. The said application was filed to contend that the
respondent was gainfully employed in another institution and thus was
not entitled to seek back wages. Learned counsel for the petitioners
submitted that though the respondent was gainfully employed, she
deliberately suppressed the said fact from this Court. Hence, she was
not entitled to seek back wages.
SUBMISSIONS ON BEHALF OF THE RESPONDENT:
17. Learned senior counsel for the respondent submitted that the
question of the nature of the appointment of the respondent was not
the subject matter of the appeal before the School Tribunal. Learned
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counsel submitted that a perusal of the termination order/letter dated
11th April 2016 is issued by considering the respondent as a permanent
employee. He submitted that since the respondent's services were
terminated by accepting her as a permanent employee, the issue of
deciding the nature of the appointment never arose before the School
Tribunal. The petitioners did not terminate the respondent's service on
the ground that she was a temporary employee. Hence, there was no
substance in the argument raised on behalf of the petitioners that the
School Tribunal was required to decide the nature of the appointment
of the respondent. He submitted that the contents of the termination
order/letter clearly indicate that it is issued by giving three months
notice and also indicating that the respondent would be entitled to EPF
and gratuity as permissible in law. The said letter does not refer to the
respondent as a temporary employee.
18. Learned senior counsel for the respondent submitted that the
contents of the termination order/letter show that it was a notice under
Rule 26 of the MEPS Rules that permits management to retrench
employees. He submitted that Rule 28 of the MEPS Rules provides for
the termination of temporary employees by issuing one month's notice.
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Hence, even if the respondent was to be treated as a temporary
employee, there was no reason for the management to issue three
months notice of termination. Once the management issued notice on
the grounds of a reduction in the number of students and the financial
condition of the management, the entire procedure prescribed under
Rule 26 of the MEPS Rules was required to be followed. It is a well-
established principle of law that without providing approval and without
following due procedure under Rule 26, the management is not
entitled to retrench employees. The nature of the termination
order/letter itself indicates that the respondent was a permanent
employee. Hence, the School Tribunal was not required to examine
the nature of the appointment of the respondent. In the absence of
procedure being followed by the management for terminating the
services of the respondent, the School Tribunal rightly allowed the
appeal directing reinstatement with full back wages.
19. To support the directions issued for payment of full back wages,
learned senior counsel for the respondent submitted that immediately
on the filing of the appeal, the School Tribunal, by way of interim order,
stayed the implementation of the termination order/letter. The School
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Tribunal also issued mandatory directions to continue the respondent
in service. Though the management informed the respondent that the
management intended to challenge the interim order, hence extended
the period of termination by a further period of two months; however,
even after the expiry of the period of two months, the petitioners failed
to challenge the interim order passed by the School Tribunal. Hence,
the respondent, who was deemed to have continued in service in view
of the interim protection, was not required to submit any pleading as to
whether she was gainfully employed or not during the tenure of
termination. In view of the interim order, the respondent was deemed
to be continued in service. Hence, on setting aside the order of
termination, the respondent is entitled to full back wages and continuity
of service.
20. In support of the submissions for seeking back wages, learned
senior counsel for the respondent relied upon the decision of the
Hon'ble Supreme Court in the case of Deepali Gundu Surwase Vs
Kranti Junior Adhyapak Mahavidyalaya (D.Ed) and Others 1. He
submitted that once an order of reinstatement is granted, an employee
(2013) 10 SCC 324
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is entitled to the same status as on the date of the termination of
service. Hence, no fault can be found in the directions issued by the
School Tribunal for the grant of back wages.
21. Learned senior counsel for the respondent opposed the prayers
made in the Civil Application No. 791 of 2019. He submitted that the
documents sought to be produced by way of Civil Application are to
support the contention of the management that the Principal was not
authorised to issue the appointment order. However, the Civil
Application is also affirmed by the Principal and not by the
management. Thus, according to the learned counsel for the
respondent, the contents of the Civil Application were contrary to the
contentions raised in the Writ Petition.
22. The learned senior counsel for the respondent submitted that the
additional documents referred to a letter dated 23 rd March 2016
received in the meeting held on 25 th February 2016. The minutes of
the meeting record that the vote of thanks in the said meeting was
given by the Chairman; however, the list of members present during
the said meeting, as recorded in the minutes, does not record the
presence of the Chairman. He thus submitted that the documents
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sought to be produced by way of Civil Application are got up
documents, and the same would make no difference on the merits of
the case.
23. The learned senior counsel for the respondent vehemently
opposed the fresh Civil Application filed to oppose the grant of back
wages. He submitted that the earlier application was filed after the
respondent filed her reply dated 4th June 2018 to the Writ Petition.
Thereafter, a rejoinder-affidavit dated 25 th February 2019 was filed on
behalf of the petitioners, and an additional affidavit dated 14 th March
2019 was also filed by the petitioners. However, no such contentions
were raised. Civil Application No. 791 of 2019 was filed on 14th March
2019, raising the contention regarding the principal's authorisation to
issue an appointment order for the first time. The fresh application
regarding back wages was filed only on 23 rd April 2024 after the
petition was partly heard on 17 th April 2024. He submitted that the
supporting documents in the application are not verified as required
under the law. The contention of the petitioners regarding gainful
employment of the respondent is based on an email allegedly issued
by the Principal of an institution. However, the email itself states that
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the respondent had left the institute in January 2024. Thus, in any
case, the documents relied upon by way of the Civil Application and
the contents of the Civil Application would not affect the respondent's
entitlement for back wages.
24. Learned senior counsel for the respondent submitted that as
held by the Hon'ble Supreme Court in the case of Deepali Gundu
Surwase, once the termination order was set aside, the respondent
would be entitled to back wages. Even otherwise, the termination
order/letter was not only stayed by the School Tribunal by way of the
interim order, but mandatory directions were also issued to the
petitioners to continue the respondent in service. Hence, according to
the learned senior counsel for the respondent in view of the interim
order passed by the School Tribunal, the respondent is deemed to
have continued in the employment. Hence, she is entitled to full back
wages as directed by the School Tribunal.
SUBMISSIONS IN REJOINDER ON BEHALF OF THE PETITIONERS:
25. In response to the submissions made on behalf of the
respondent, learned counsel for the petitioners submitted that the
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contents of the Civil Application and the supporting documents clearly
indicate that the respondent left the institution in January 2024 and
joined new employment. Hence, it is clear that the respondent was
gainfully employed, and she suppressed the fact of her gainful
employment from this Hon'ble Court. Hence, she is not entitled to
back wages.
26. On the submissions made by the learned senior counsel for the
respondent under Rule 26 of MEPS Rules, the learned counsel for the
petitioners submitted that the management sought to take permission
by submitting all the necessary documents. He relied upon the closure
permissions by the Director of Maharashtra State Board of Technical
Education addressed to the management, and the letter dated 5 th May
2015 issued by the Government of Maharashtra addressed to the
management. Learned counsel for the petitioners thus submitted that
the documents produced by the management before the School
Tribunal indicated that all the necessary permissions for closure were
sought to be obtained by the management. Hence, in view of sub-rule
(9) of Rule 26, the management was entitled to terminate the service
of the respondent. In support of his submissions, learned counsel for
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the petitioners relied upon the relevant pleading in the written
statement filed before the School Tribunal that the respondent was
offered to work on a lower pay scale; however, she refused the offer of
the management. It is also sought to be contended that the resolution
passed by the management would also support the contention
regarding the alternate offer made to the respondent.
27. Learned counsel for the petitioners relied upon paragraph 11 of
the written statement and contended that 42 employees of petitioner
no. 1 had resigned from the services in view of the closure decision
taken by the management. However, the respondent failed to
cooperate with the management and filed an appeal with a malafide
intention. Learned counsel for the petitioners thus submitted that the
respondent was not entitled to seek any relief by relying upon Rule 26
of the MEPS Rules by contending that the notice was for retrenchment
and not for termination of service.
ANALYSIS:
28. Though there is a dispute on the initial appointment of the
respondent, it is pleaded by the respondent that she was working with
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petitioner no. 2-institution since 14th July 2006 for two years on an ad-
hoc basis. However, the petitioners have disputed this. Hence,
without referring to the said pleading, if the admitted fact is taken into
consideration, the respondent was appointed on a regular basis with
effect from 1st July 2008 by order dated 30th June 2008. The order of
appointment produced on record clearly shows that the same was not
for a limited tenure. The terms and conditions of the appointment order
indicate that the terms are in accordance with the schedule of MEPS
Rules provided for issuing appointment orders on a regular basis on
the permanent post. Thus, in view of the appointment order dated 30th
June 2008, the respondent had continued in service for a period of 8
years till the date of the termination notice. The termination notice
does not indicate that the respondent's service was terminated, as she
was appointed on a temporary basis. The contents of the termination
letter are in conformity with the requirement for intimation of
retrenchment as contemplated under Rule 26. The order/letter of
termination dated 11th April 2016 provides for a termination period of
three months. The letter also indicates that the respondent would be
entitled to EPF and gratuity. After the termination order was
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challenged before the School Tribunal, an interim order was passed on
2nd July 2016 granting a stay to the implementation of the notice/order
dated 11th April 2016 and mandatory directions were issued against the
petitioners to continue the respondent in service during the pendency
of the appeal. In reference to the said interim order, petitioner no. 1
issued a letter dated 11th July 2016 to the respondent intimating an
extension of the notice period by a further two months. Though the
said letter stated that the management intended to challenge the
interim order passed by the School Tribunal, admittedly, no steps were
taken to challenge the interim order. Thus, the effect of the termination
order/letter was stayed during the pendency of the appeal before the
School Tribunal. The petitioners failed to challenge the said order and
also failed to comply with the mandatory directions for continuing the
respondent in service during the pendency of the appeal. Hence,
learned counsel for the respondent is right in submitting that in view of
the interim order passed by the School Tribunal, the respondent was
deemed to have continued in service.
29. I do not find any substance in the arguments of the learned
counsel for the petitioners that the School Tribunal failed to examine
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the nature of the appointment of the respondent. The order/letter of
termination does not treat the respondent as a temporary employee.
In fact, the contents of the order/letter indicate that the respondent was
always treated as a permanent employee, and hence, the notice was
issued as contemplated under Rule 26. The contents of the notice
show compliance with the initial notice required to be issued for the
retrenchment of an employee. The management sought to support the
termination by filing a written statement with all the necessary
particulars required for following the procedure for retrenchment.
Thus, the pleading of the petitioners indicates that the management
did intend to follow the procedure for retrenchment; however, after
issuing the initial notice, the management failed to take appropriate
steps for the retrenchment of the respondent and sought to contend
that the said letter was a letter of termination. The respondent, thus
correctly filed an appeal to challenge the termination letter dated 11 th
April 2016. It appears that the management decided to follow the
procedure prescribed under Rule 26 for the retrenchment of an
employee and thus issued the letter as contemplated under the Rules,
but later discontinued her service without following the mandatory
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procedure.
30. In view of the rival contentions of the parties, the School
Tribunal framed points for consideration regarding the illegal
termination of the respondent. Thus, the letter dated 11 th April 2016
was construed by the management not as a letter of retrenchment but
as a letter of termination. Contents of the letter of termination clearly
show that the respondent was a permanent employee of petitioner
no.2-institution. The documents produced on record with regard to the
service book also showed that the respondent was working as a
permanent employee and given all the benefits, including increments
and leave benefits of a permanent employee. Hence, I do not see any
substance in the submissions made on behalf of the petitioners that
the School Tribunal was required to determine the nature of the
appointment of the respondent.
31. The petitioners' pleadings and the documents produced on
record were to support the contention of the petitioners that the
management, being in a weak financial position, was required to close
down the classes and, hence, was unable to continue the service of
the respondent. The arguments on behalf of the petitioners before the
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School Tribunal was that the provision of Rule 26 of the MEPS Rules
was not applicable, as the institution was an unaided institution.
However, it was also argued on behalf of the petitioners that as per the
provisions under Rule 26, only permanent employees might be
retrenched from the service after giving three months notice on the
grounds stated under the said Rules. The School Tribunal thus
examined the arguments made on behalf of the petitioners that the
Rule for retrenchment was not applicable to the institution. The School
Tribunal held that the petitioners failed to produce any authentic
document to show a reduction in the number of students. The Tribunal
thus examined the contentions of the petitioners on merits on the
grounds raised in support of the termination letter.
32. With regard to the petitioners' argument that the respondent was
a temporary employee, the School Tribunal held that the said
contention could not be appreciated for want of necessary pleadings.
It was argued on behalf of the management that the respondent was a
temporary employee, but the same remained to be mentioned in the
appointment order. In view of the said argument on behalf of the
petitioners, the School Tribunal held that the petitioners were not
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entitled to take shelter of the incapacity of payment of salary by
terminating the service of the respondent, who was a permanent
employee. The School Tribunal thus examined the submissions made
on behalf of the management to support the decision of termination
and held that the management was not entitled to terminate the
services of the respondent.
33. I find substance in the argument made on behalf of the
respondent that if the respondent, for the sake of argument, is to be
treated as a temporary employee, the management was under an
obligation to issue notice of one month for terminating services of
temporary employee as provided under Rule 28 of the MEPS Rules
and if the respondent is accepted as a permanent employee, the
management is not entitled to terminate the services on the ground of
abolition of posts, without following the procedure provided under Rule
26 of the MEPS Rules. If the contents of the termination letter and the
pleading of the petitioners are examined, the same amounts to a
procedure being initiated for termination of services on account of the
abolition of posts for which the procedure under Rule 26 is required to
be followed. The contents of the letter of termination and the
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pleadings of the petitioners indicate that the respondent was always
treated as a permanent employee, and hence, notice as contemplated
under Section 26 of the MEPS Rules was initiated. However, without
completing the procedure as prescribed under Rule 26, the petitioners
terminated the service of the respondent without following the
prescribed procedure for termination. The learned senior counsel for
the respondent correctly relied upon the decision of this court in the
case of Bharat Education Society's Junior College of Commerce and
Economics and Others vs. Shri Balaram Vembulu 2. In the said decision
this court held that even if there is a reduction in the establishment due
to a fall in the number of pupils, classes or divisions, the decision to
retrench an employee cannot rest in the unilateral discretion of the
management of a school. This court, thus held that prior approval of
the competent authorities and following the procedure postulated by
Rule 26 is mandatory. Thus, no fault can be found in the reasons
recorded by the School Tribunal for declaring the notice of termination
to be illegal and thus setting aside the same.
34. So far as the ground of objection on the directions for full back
2000 (1) Bom C. R. 367
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wages and consequential benefits are concerned, learned senior
counsel for the respondent is right in submitting that the
implementation of the order of termination was stayed by way of the
interim order and the School Tribunal directed the petitioners to
continue the service of the respondent. Hence, the respondent was
deemed to be in the employment with the petitioners. In the said
circumstances, the respondent would be entitled to back wages. The
aforesaid findings clearly show that the respondent was in service as a
permanent employee for more than eight years on the date of
termination and that she was illegally terminated in gross violation of
the statutory provisions and in breach of principles of natural justice.
35. The law with regard to the grant of back wages as settled by the
Hon'ble Supreme Court in the decision of Deepali Gundu Surwase
squarely applies to the present case. The legal principles settled by
the Hon'ble Supreme Court in the decision of Deepali Gundu Surwase
read as under;
" 21. The word "reinstatement" has not been defined in the Act
and the Rules. As per Shorter Oxford English Dictionary, Vol. 2,
3rd Edn., the word "reinstate" means to reinstall or re-establish
(a person or thing in a place, station, condition, etc.); to restore
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to its proper or original state; to reinstate afresh and the word
"reinstatement" means the action of reinstating; re-
establishment. As per Law Lexicon, 2nd Edn., the word
"reinstate" means to reinstall; to re-establish; to place again in a
former state, condition or office; to restore to a state or position
from which the object or person had been removed and the word
"reinstatement" means establishing in former condition, position
or authority (as) reinstatement of a deposed prince. As
per Merriam-Webster Dictionary, the word "reinstate" means to
place again (as in possession or in a former position), to restore
to a previous effective state. As per Black's Law Dictionary, 6th
Edn., "reinstatement" means:
"To reinstall, to re-establish, to place again in a former
state, condition, or office; to restore to a state or position
from which the object or person had been removed."
22. The very idea of restoring an employee to the position which
he held before dismissal or removal or termination of service
implies that the employee will be put in the same position in
which he would have been but for the illegal action taken by the
employer. The injury suffered by a person, who is dismissed or
removed or is otherwise terminated from service cannot easily
be measured in terms of money. With the passing of an order
which has the effect of severing the employer-employee
relationship, the latter's source of income gets dried up. Not only
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the employee concerned, but his entire family suffers grave
adversities. They are deprived of the source of sustenance. The
children are deprived of nutritious food and all opportunities of
education and advancement in life. At times, the family has to
borrow from the relatives and other acquaintance to avoid
starvation. These sufferings continue till the competent
adjudicatory forum decides on the legality of the action taken by
the employer. The reinstatement of such an employee, which is
preceded by a finding of the competent judicial/quasi-judicial
body or court that the action taken by the employer is ultra vires
the relevant statutory provisions or the principles of natural
justice, entitles the employee to claim full back wages. If the
employer wants to deny back wages to the employee or contest
his entitlement to get consequential benefits, then it is for
him/her to specifically plead and prove that during the
intervening period the employee was gainfully employed and
was getting the same emoluments. The denial of back wages to
an employee, who has suffered due to an illegal act of the
employer would amount to indirectly punishing the employee
concerned and rewarding the employer by relieving him of the
obligation to pay back wages including the emoluments."
"38. The propositions which can be culled out from the
aforementioned judgments are:
38.1. In cases of wrongful termination of service, reinstatement
with continuity of service and back wages is the normal rule.
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38.2. The aforesaid rule is subject to the rider that while deciding
the issue of back wages, the adjudicating authority or the court
may take into consideration the length of service of the
employee/workman, the nature of misconduct, if any, found
proved against the employee/workman, the financial condition of
the employer and similar other factors.
38.3. Ordinarily, an employee or workman whose services are
terminated and who is desirous of getting back wages is required
to either plead or at least make a statement before the
adjudicating authority or the court of first instance that he/she
was not gainfully employed or was employed on lesser wages. If
the employer wants to avoid payment of full back wages, then it
has to plead and also lead cogent evidence to prove that the
employee/workman was gainfully employed and was getting
wages equal to the wages he/she was drawing prior to the
termination of service. This is so because it is settled law that the
burden of proof of the existence of a particular fact lies on the
person who makes a positive averment about its existence. It is
always easier to prove a positive fact than to prove a negative
fact. Therefore, once the employee shows that he was not
employed, the onus lies on the employer to specifically plead
and prove that the employee was gainfully employed and was
getting the same or substantially similar emoluments.
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38.4. The cases in which the Labour Court/Industrial Tribunal
exercises power under Section 11-A of the Industrial Disputes
Act, 1947 and finds that even though the enquiry held against
the employee/workman is consistent with the rules of natural
justice and/or certified standing orders, if any, but holds that the
punishment was disproportionate to the misconduct found
proved, then it will have the discretion not to award full back
wages. However, if the Labour Court/Industrial Tribunal finds
that the employee or workman is not at all guilty of any
misconduct or that the employer had foisted a false charge, then
there will be ample justification for award of full back wages.
38.5. The cases in which the competent court or tribunal finds
that the employer has acted in gross violation of the statutory
provisions and/or the principles of natural justice or is guilty of
victimising the employee or workman, then the court or tribunal
concerned will be fully justified in directing payment of full back
wages. In such cases, the superior courts should not exercise
power under Article 226 or 136 of the Constitution and interfere
with the award passed by the Labour Court, etc. merely because
there is a possibility of forming a different opinion on the
entitlement of the employee/workman to get full back wages or
the employer's obligation to pay the same. The courts must
always keep in view that in the cases of wrongful/illegal
termination of service, the wrongdoer is the employer and the
sufferer is the employee/workman and there is no justification to
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give a premium to the employer of his wrongdoings by relieving
him of the burden to pay to the employee/workman his dues in
the form of full back wages.
38.6. In a number of cases, the superior courts have interfered
with the award of the primary adjudicatory authority on the
premise that finalisation of litigation has taken long time ignoring
that in majority of cases the parties are not responsible for such
delays. Lack of infrastructure and manpower is the principal
cause for delay in the disposal of cases. For this the litigants
cannot be blamed or penalised. It would amount to grave
injustice to an employee or workman if he is denied back wages
simply because there is long lapse of time between the
termination of his service and finality given to the order of
reinstatement. The courts should bear in mind that in most of
these cases, the employer is in an advantageous position vis-à-
vis the employee or workman. He can avail the services of best
legal brain for prolonging the agony of the sufferer i.e. the
employee or workman, who can ill-afford the luxury of spending
money on a lawyer with certain amount of fame. Therefore, in
such cases it would be prudent to adopt the course suggested
in Hindustan Tin Works (P) Ltd. v. Employees [Hindustan Tin
Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC
(L&S) 53] .
38.7. The observation made in J.K. Synthetics Ltd. v. K.P.
Agrawal [(2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] that on
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reinstatement the employee/workman cannot claim continuity of
service as of right is contrary to the ratio of the judgments of
three-Judge Benches [Hindustan Tin Works (P)
Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] ,
[Surendra Kumar Verma v. Central Govt. Industrial Tribunal-
cum-Labour Court, (1980) 4 SCC 443 : 1981 SCC (L&S) 16]
referred to hereinabove and cannot be treated as good law. This
part of the judgment is also against the very concept of
reinstatement of an employee/workman."
emphasis applied
36. The contents of Interim Application (St) No. 12492 of 2024 do not
assist the petitioners' objection that the respondent is not entitled to full
back wages. Nothing is produced on record to indicate that the
respondent was gainfully employed. The printouts of emails relied on
by the petitioners cannot be accepted as valid proof.
37. The documents annexed to the Civil Application No. 791 of 2019
are relied upon by the management to support the contention that the
Principal was not authorised to issue the appointment order. Thus, the
documents are sought to be relied upon to contend that the
respondent was not appointed lawfully as provided under the MEPS
Act and Rules framed thereunder and, thus, not entitled to
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permanency. The letter of termination was not issued by the
management on the ground that the respondent was a temporary
employee. The School Tribunal has thus dealt with the challenge to the
termination letter that was issued by treating the respondent as a
permanent employee. The pleadings and evidence on record show
that the respondent was working as a permanent employee and steps
were accordingly taken by the management to terminate her services.
Hence, the documents relied upon by way of the Civil Application are
irrelevant at this stage in view of the controversy in the matter. Even
otherwise, the contents of the application do not justify the non-
production of the said documents during the hearing of the appeal
before the Tribunal.
38. Learned counsel for the petitioners has placed reliance on the
decisions of the Hon'ble Supreme Court in the cases of Hari Nandan
Prasad and Another Vs Employer I/R to Management of FCI and
Another3, Surinder Prasad Tiwari Vs U.P. Rajya Krishi Utpadan and
Others4, State of Rajasthan and Others Vs Daya Lal and Others 5 and
(2014) 7 SCC 10
(2006) 7 SCC 684
(2011) 2 SCC 429
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National Gandhi Museum Vs Sudhir Sharma 6. The said decisions were
relied upon by the learned counsel for the petitioners to support the
contention that the respondent was not a permanent employee of the
petitioners. All the aforesaid decisions are on the illegal termination
being violative of Section 25F of the Industrial Disputes Act, 1947,
regularisation of service in public employment, parity in payment of
salary, and entitlement for regularisation on the ground of continuing in
service in view of interim orders. Hence, the principles laid down in
the said decisions are irrelevant so far as the controversy in the
present petition is concerned. The present petition deals with the
validity of the order of termination and the appeal filed under Section 9
of the MEPS Act. Hence, none of the decisions relied upon by the
learned counsel for the petitioners are of any assistance to the
arguments raised on behalf of the petitioners.
39. Learned counsel for the petitioners also relied upon the decision
of this court in the case of Shreemati Nathibai Damodar Thakarsey
Women's University Vs Ms Smita Govind Takale and Another 7. The
issue under consideration in the said decision was about the
(2021) 12 SCC 439
Writ Petition No. 10737 of 2019 and Writ Petition No.10645 of 2019 dated 7th May 2024.
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appointment of the teacher as Shikshan Sevak and the appointment of
a teacher on a temporary basis. In the present case, the issue is not
with regard to the nature of the appointment of the respondent, as the
petitioners had issued a termination letter by treating the respondent
as a permanent employee. Hence, reliance on the said decision is
also misplaced so far as the facts of the present case are concerned.
40. This petition is filed invoking powers under Articles 226 and 227
of the Constitution of India. The scope of interference under Articles
226 and 227 is a well-established principle of law. The legal principles
with regard to the same are summarised by the Hon'ble Supreme
Court in the case of Shalini Shyam Shetty and Another Vs Rajendra
Shankar Patil8. The Hon'ble Supreme Court has summarised the
scope of interference under Article 227 of the Constitution of India. The
relevant extracts from paragraph 49 are as under:
"49. On an analysis of the aforesaid decisions of this
Court, the following principles on the exercise of High
Court's jurisdiction under Article 227 of the Constitution
may be formulated:
(2010) 8 SCC 329
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(e) According to the ratio in Waryam Singh [AIR 1954
SC 215], followed in subsequent cases, the High Court
in exercise of its jurisdiction of superintendence can
interfere in order only to keep the tribunals and courts
subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such
tribunals and courts by exercising jurisdiction which is
vested in them and by not declining to exercise the
jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f),
High Court can interfere in exercise of its power of
superintendence when there has been a patent
perversity in the orders of the tribunals and courts
subordinate to it or where there has been a gross and
manifest failure of justice or the basic principles of
natural justice have been flouted.
(h) In exercise of its power of superintendence High
Court cannot interfere to correct mere errors of law or
fact or just because another view than the one taken by
the tribunals or courts subordinate to it, is a possible
view. In other words the jurisdiction has to be very
sparingly exercised.
emphasis applied
41. In the present case, I do not find any illegality, infirmity, or
manifest error in the impugned order. Facts of the case shows that the
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respondent is a victim of breach of principles of natural justice and
gross violation of applicable laws. Hence, this is not a fit case to
exercise the powers under Articles 226 or 227 of the Constitution of
India.
42. Hence, for the reasons recorded above, the petition is
dismissed.
43. For the reasons recorded above the Civil Application No. 791 of
2019 and Interim Application(St) No.12492 of 2024 are also dismissed.
[GAURI GODSE, J.]
