Punjab-Haryana High Court
M/S G.D. Goenka School vs Parveen Singh Shekhewat And Ors on 14 December, 2022
LPA No. 389 and 390 of 2018 (O & M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
LPA No. 389 and 390 of 2018 (O & M)
Reserved on: 22.11.2022
Date of Decision: 14.12.2022
M/s. G.D. Goenka School .....Appellant(s)
Versus
Parveen Singh Shekhawat and others ....Respondent(s)
AND
LPA No. 390 of 2018 (O & M)
M/s. G.D. Goenka School .....Appellant(s)
Versus
Ajay Singh Shekhawat and others ....Respondent(s)
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
HON'BLE MS. JUSTICE HARPREET KAUR JEEWAN
Present: Mr. Akshay Bhan, Sr. Advocate,
with Mr. Gurmohan Singh Bedi, Advocate,
Mr. Pawandeep Singh, Advocate,
Mr. Amandeep Singh, Advocate,
for the appellant.
Ms. Parveen Shekhawat and Mr. Ajay Singh Shekhawat,
respondents-in-person.
G.S.SANDHAWALIA, J.
The present judgment shall dispose of two letters patent appeals
i.e. LPA Nos. 389 and 390 of 2018, as the same arise out of the similar orders
passed by the Appellate Tribunal and a common order of the learned Single
Judge. The present letters patent appeal has been filed by the employer-
school against the order dated 08.12.2017 passed by the Appellate Tribunal
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comprising of the District Judge under the Haryana Education Act, 2003 and
the subsequent order passed by the learned Single Judge in CWP Nos. 2310
of 2018 and 2335 of 2018 wherein, the writ petitions were dismissed in
limine. The District Judge, Gurugram came to the conclusion that the
employees who are husband and wife were confirmed employees in view of
the letter dated 14.09.2005 and the termination done on
29.06.2015/21.07.2015 was done on the basis of the notices which had been
issued prior to the amendment of the Staff Service Regulations. The show
cause notices as such were issued whereby the performance of the employees
was held to be sub-standard and the children of the school were not happy on
account of which the notices had been served was the alleged ground for
termination of services of the employees. The same having been scrutinized
showed that there was only one month notice given whereas in the
appointment letter dated 17.08.2004 and in the confirmation letter, the period
of notice was required to be of 3 months. Resultantly, it was held that the
action of the appellant-management was to the detriment to the interest of the
employees and implementing the new terms and conditions for termination of
services retrospectively though noticing that the school was a private
autonomous body and was having liberty of having its own regulations and
policy decisions. However, it was held that the policy of 'hire and fire' and of
acting with whimsical and capricious attitude was detrimental to the
employees and violative of the principles of natural justice. At least a regular
domestic enquiry should have been initiated against the employees and they
should have been given an opportunity to face and join inquiry before the
services could be terminated on the principle of fair hearing, equity and
justice. Resultantly, in the absence of the requisite three months' notice
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instead of one month before termination, the finding was recorded that the
termination order was not justified and accordingly it was set aside since it
was violative of the principles of natural justice. The couple was held entitled
for reinstatement in service with immediate effect with full back wages/salary
alongwith interest @6% per annum from the date of the termination of
service i.e. from May, 2015 onwards till final realization.
The writ petitions filed, as noticed, were dismissed by the
learned Single Judge in a terse manner while placing reliance upon the
judgment of the co-ordinate Bench in the Management of S.D. Model Senior
Secondary School and another vs. District Judge-cum-Service Tribunal
and another, 2014 (13) RCR (Civil) 328 and the fact that the Apex Court in
TMA Pai Foundation vs. State of Karnataka, (2002) 8 SCC 481 had directed
constitution of Educational Tribunals. The argument raised as such that the
power to set aside the dismissal order did not vest with the Tribunal was not
accepted by holding that it would result in denuding the judicial power of the
Tribunal to adjudicate the case. The argument that the Haryana School
Education Code would govern was rejected on the ground that the Code does
not deal with the service law disputes and it was held that there was no legal
error in the order of the Tribunal. The argument that the contract inter se was
of a personal service which was not specifically enforceable in law was
rejected on the ground that in view of the statutory protection afforded to the
employees of the private recognized schools in Haryana, all shades of service
disputes are to be settled by the Tribunal.
Senior Counsel for the appellant, with all vehemence, has
submitted that it is a contract of personal service while falling back on
Section 73 of the Contract Act, 1872 to submit that at the most, it was a case
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of damages as such for payment of compensation. It was accordingly
submitted that in pursuance of interim orders, Rs.10,00,000/- each to both the
husband and wife had been paid on an earlier occasion which was sufficient
as such to compensate them and reinstatement had wrongly been ordered.
Counsel has placed reliance upon the judgment of the Apex Court in
Secretary, A.P.D. Jain Pathshala and others vs. Shivaji Bhagwat More and
others, (2011) 13 SCC 99 to contend that reinstatement could not be done and
only a declaration could be issued that the contract of personal service
subsists. Similarly, reliance was placed upon the judgment in Kailash Singh
vs. Managing Committee, Mayo College, Ajmer and others, (2018) 18 SCC
216 to submit that even if there was a breach of contract, compensation is
payable and the issue of reinstatement was not the right relief to be granted.
The employees appearing in person stated that the orders passed
by the District Judge and the learned Single Judge are justified and submitted
that they were unceremoniously thrown out from service after having
rendered over a decade of service without any complaint and the termination
was against the terms of the letter of appointment and, thus, reinstatement had
been rightly ordered.
A perusal of the paper book would go on to show that vide letter
dated 17.08.2004, appointment was offered as a Physical Education Teacher
by the appellant-school to the lady which was at basic pay of Rs.5,500/- and
the scale was of Rs.5,500-175-9000 and the approximate gross emoluments
were to be Rs.13,300/-. They were entitled to the rent free accommodation +
D.A., C.C.A., leave encashment as admissible to Physical Education Teacher
Mrs. Parveen Shekhawat. Similarly, her husband Ajay Singh Shekhawat's
basic pay was Rs.7,500/- and the scale was of Rs.7500-200-10500 against his
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appointment as Post Graduate Teacher (Physical Education). The gross
emoluments were Rs.25,000/- in his case. As per the terms of the letter of
appointment, the appointment was to be governed by Service and Conduct
Rules of the School presently in force or as amended from time to time as per
Clause 2. The appointment was on probation and there was a right with the
employer to terminate by giving 30 days' notice during the said period, which
was to be extended to 90 days after confirmation. The relevant portion reads
thus:-
"2. Your appointment will be subject to and
governed by Service and Conduct Rules of the
G.D.Goenka World School presently in force and / or as
amended from time to time.
3. Your appointment will be on probation for one
year. During this period, your services can be
terminated by either side, without assigning any reason,
by giving 30 days' notice or 30 days' salary in lieu
thereof. However, upon confirmation, the services can
be terminated by either side by giving 90 (ninety) days
prior notice or 90 (ninety) days' salary in lieu thereof."
It is not disputed that both the husband and wife were duly
confirmed vide separate letters of even date of 14.09.2005 (Annexure P-3)
w.e.f. 01.09.2005. Apparently, some complaints were received against them
by the parents of the children studying in the school in April, 2015 (Annexure
P-4 colly) that they were not taking their role seriously. Resultantly, notice
was issued to them on 03.06.2015 that they were taking the positions for
granted in the school and there was lack of interest displayed by both of them.
They were to reply to the said notice within 10 days and the same was
followed up on 15.06.2015 that they had not cared to respond and a last
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opportunity was given to do so within 7 days or appropriate action would be
taken in accordance with the Rules and termination of the contract. The
notice reads as under:-
SUBJECT: SECOND NOTICE OF ENQUIRY
Dear Mr & Mrs Shekhawat,
We are constrained to write, once again, that despite
our earlier notice date 03 June 2015 calling upon of
both of you to furnish your response to the allegations
made therein, you have not cared to respond, either
verbally or in writing; nor has your performance
improved to demand reprieve.
The School Management continues to feel embarrassed
owing to several complaints against both of you,
alleging lack of interest thereby exemplifying your
under-performance.
Therefore, in these circumstances, we hereby call upon
of you, as a last opportunity, to submit your
reply/response in writing within a period of 7 days from
the date of receipt of the present notice.
Please also, take note that in the event of your failure to
furnish your reply in the aforesaid inquiry proceedings,
it shall be presumed by the School that both of you have
no explanation to offer and the school would be left with
no other alternative but to take appropriate action you
in accordance with rules, including termination of your
contract."
Apparently, on 19.06.2016 (Annexure P-6), the school asked
them to try to change their term of the appointment letter by reducing the
period of notice to 30 days and eventually on 29.06.2015, the school
determined their contract and terminated their service with immediate effect
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by coming to the conclusion that they had not cleared their positions and
refuted the charge. The order reads thus:-
"Dear Mrs. Shekhawat,
We are constrained to observe that despite having
repeatedly called upon you to submit your explanation
in writing in respect of the charge/allegation against
you, as reflected from one earlier letters date 03-06-
2015 and 15-06-2015, you have failed to come forward
and clear your position, not only this, you have also
failed respond or refute the charges as referred to in our
earlier letters and therefore, it appears that you have no
explanation to offer in respect of the allegations made
against you.
Consequently, we have been left with no other alterative
but to take appropriate action in accordance with rules,
and therefore, the School Management has taken
decision terminate/determinate your contract of
employment with immediate effect.
You are requested to hand over charges to the
concerned department and deposit all articles belonging
to the School with in a period of one week, and to clear
all your dues from the concerned department to enable
us to finalize your exit carefully.
Yours Sincerely
(For G D Goenka World School)
D.N.A. Mountford"
Aggrieved by the said order, the petitioners chose to firstly
approach the Assistant Labour Commissioner, who issued demand notice to
the school and eventually, they approached the District Judge on 14.03.2016.
The claim was accordingly made that they were being paid Rs.48,315/- in the
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case of Mrs. Parveen Shekhawat and Rs.79,061/- in the case of Ajay Singh
Shekhawat and that without any charge sheet, they had been terminated and
the school gate had been closed on their faces. Accordingly, it was averred
that the effort to amend the Staff Regulations was contrary to the appointment
letter. The three children of the employees were also stated to be studying in
the school and the entry was also denied and school leaving certificates had
been issued and, therefore, they had been humiliated. It is thus pertinent to
notice that neither any claim was made under any statutory provision or with
reference to any protection under the Haryana School Education Rules in the
petition. Resultantly, reinstatement was sought with full back salary
alongwith interest @24% per annum.
The written statement filed by the School as such was that on
account of the poor performance of the husband, who was the incharge of the
boys section, the children were not happy and since they were not
concentrating on their duties. Show cause notice had been issued with the
follow up on 15.06.2015 and resultantly, on account of failure to furnish their
replies, termination had been done on 29.06.2015 consistent with the Staff
Service Regulations of the respondent-school. The amendment which was
sought to be done was within the realm of the school and staff regulations as
amended from time to time. The claim petition was stated to be pending
before the Labour Court, Gurugram and on account of initiating parallel
proceedings, objection was taken. It is an admitted fact that the proceedings
before the Labour Court were withdrawn during pendency before the District
Judge. Resultantly, it was averred that the relationship was contractual inter
se and could be terminated in accordance with the Rules and Regulations. It
was denied that there was any delay in payment of salaries and cheques for
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the month of May had also been prepared, which the employees had failed to
collect. The termination letter was stated to be in accordance with the Staff
Service Regulations and the management possessed complete legal authority
to amend the Staff Service Regulations in the manner they wish to. Even in
the appointment letter, it was specifically mentioned that the same was
subject to the Conduct Rules of the school in force or as amended from time
to time. The entry in the school was denied on account of the fact that they
were no longer employees and it was alleged that the children had been
withdrawn from the school and they were no longer eligible for availing
benefit of free education on account of the termination and that parallel
proceedings as such were not justified.
It is, thus, apparent from the pleadings that even the school as
such has not referred to any of its Rules, Regulations and the procedure which
it had prescribed for terminating the services of the employees. In spite of
specific orders passed on 03.02.2020, the bylaws governing the condition for
the protection of the teachers employed with the schools has not been put
forth. Even the documents put forth are the affiliation as such and the guide
to school authorisation which, even senior counsel, fairly conceded that there
were no such specific Rules which would govern the process of termination
on account of any misconduct. Thus, an adverse inference is to be drawn
necessarily against the appellant-school as it is not coming forth with its
procedure laid down as the same would expose the fact that it has chosen not
to follow its own rules.
Reliance can be placed upon the judgment in Union of India vs.
Ibrahim Uddin and another, (2012) 8 SCC 148 wherein keeping in mind the
principles under Section 114(g) of the Evidence Act, it was held that it was
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the duty of the party to produce the best evidence in its possession which
would throw light on the issue in controversy. An adverse inference could be
drawn in case such materials were withheld.
In the present case, as noticed, directions were issued as such on
03.02.2020 to place on record statutory provisions/regulations/by laws
governing the conditions of affiliation and protection of the teachers
mentioned with the schools of the appellant, if any. The same having not
been produced, it can be safely said that the procedure prescribed under the
Rules of the State Government have been withheld only on account of the
fact that it would not suit the appellant as such to produce the said documents
as it would expose its illegal action in dispensing with the services of the
employees. Thus, on account of the non-compliance with the order of the
Court, it is justified to draw an adverse inference.
It is a matter of record that the Haryana Government has issued
notification dated 07.05.2013 in pursuance of the judgment of the Apex Court
in TMA Pai Foundation (supra) which provides for redressal of the grievance
of the employees of the un-aided educational institutions. The said
notification reads thus:-
"HARYANA GOVERNMENT
SCHOOL EDUCATION DEPARTMENT
Notification
The 7 May, 2012
No. 7/45-2010 PS(2). - In pursuance of the
judgement dated 30-10-2002 of the Hon'ble Supreme
Court of Indian TMA Pai Foundation and others Versus
State of Karnataka (2002) 8 SCC 481, wherein the
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Hon'ble Court has observed that for the redressal of
grievances of employees of unaided educational
institutions who are subjected to punishment of
termination of services, a mechanism will have to be
evolved by constituting appropriate tribunals. The right
of filing appeals would lie before the District and
Sessions Judge or Additional District and Session Judge
till the tribunals are set up.
Accordingly. District and Session Judges in the
State of Haryana have been authorized to hear appeals
of employees of aided/unaided technical education
Institutions against decision of management within their
jurisdiction, by the Hon'ble Punjab and Haryana High
Court Chandigarh vide No. 234140AZ.II/EX.C.11, dated
10-08-200 The Tribunals already notified by the Hon'ble
High Court will also hear appeals of employees of
aided/unaided schools against the orders of
management."
The Division Bench of this Court in Management of S.D. Model
Senior Secondary School (supra) noticed the factum of the issuance of the
said notification and held that the District and Sessions Judge or the
Additional District and Session Judge would have the jurisdiction to decide
all service disputes and, therefore, it was in exercise to the executive powers
of the State and the remedy lay before them rather than the Civil Court which
was found not to be expeditious. However, the remedy of the amount
payable under the Payment of Gratuity Act, 1972 did not lie with the said
Tribunal. It has been brought to our notice that by order dated 29.06.2004,
the Director, Secondary Education while exercising the powers under Rule
34(1) of the Haryana School Education Rules, 2003 (in short 'the 2003
Rules'), granted permanent recognition to the appellant-school for Class I to
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Class XII. Out of the various terms and conditions which were incorporated
for the recognition which was for a period of 10 years, no financial assistance
was to be granted by the Department of School and the Managing Committee
was to abide by the provisions of the 2003 Rules and amendments, if any,
made thereafter. They were also liable for dis-affiliation in case of violation
of any other provisions of the Rules and are supposed to follow instructions
issued by the Government/Director and supply information as and when
required. The relevant terms and conditions read as under:-
"9. Recognition so granted shall be reviewed
after every 10 years.
10. No financial assistance shall be granted by
the Department of the school.
13. The Managing Committee shall follow the
instructions issued by Government/Director from time
supply the information to the Govt./Department as
required.
14. In addition to above the Managing
Committee shall abide by the provisions of the Haryana
School Rules, 2003 and amendments if any thereafter.
The Managing Committee shall be liable for (illegible)
in case of violation of any provisions of the rules."
In such circumstances, we are of the considered opinion that the
finding of the learned Single Judge on the Haryana School Education Code
and the Rules would not apply are not sustainable. However, the view was
rightly taken that the statutory protection afforded to the employees of the
private schools of Haryana in all shades of service disputes were to be settled
by the Tribunal would specifically be enforceable. The Haryana School
Education Act, 1995 provides for the recognition of the school which reads
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thus:-
"2(q) "recognition" means formal certification
granted by an appropriate authority to a privately
managed educational institution that the institution
conforms to the standards and conditions laid down by
the appropriate authority;"
The Act provides the procedure which is to govern the
establishment, recognition and management of aided schools and also
provides for provisions applicable to the unaided minority schools. As
noticed, the present institute is a unaided private school and under Section
24(2)(v), any other matter which is or may be prescribed under the Act is to
be provided by Rules for the purposes of the Act. The 2003 Rules thus
provide Rules for the aided schools, minority schools and the procedure of
admission to recognized schools, aided or unaided under Chapter VI.
Chapter VII provides of a contract of service and the procedure of service
Rules for employees of unaided recognized schools and employees working
in the aided schools on unaided posts. Rule 161 provides for signing of a
contract as provided under Section 20. The same reads thus:-
"161. Signing of contract - Section 20. The
managing committee of every recognised private school
shall enter into a written contract of service in appendix
B with every employee of such school. A passport size
photo of each employee shall be affixed on the filled in
proforma of contract of his service."
Rule 180 provides for the disciplinary procedure prescribed
keeping in view the nature of proceedings which may be initiated against an
employee in various situations including the case of any criminal offence,
charge of embezzlement, cruelty towards students or employees or
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misbehaviour towards any parent, guardian or student and that any breach of
any code of conduct. The said Rule provides that an employee can be placed
under suspension for a period of six months and for reasons to be recorded,
the continuation of suspension can be there beyond a period of six months. It
further provides for subsistence amount which is to be payable and how the
period is to be treated at exoneration after the disciplinary proceedings. Rule
181 talks of the penalty and also removal from service and reads thus:-
"181. Penalties - Section 24(2). The following
penalties may, for good and sufficient reasons, including
the breach of one or more of the provisions of the code of
conduct may he imposed upon an employee:
(a) minor penalties:
(i) censure:
(ii) recovery from pay, the whole or any part of any
pecuniary loss caused to the school by negligence
or breach of orders:
iii) withholding of increment of pay:
(b) Major penalties:
(i) reduction in rank:
(ii) removal from service, which shall not be a
disqualification for future employment in any
school:
Explanation: The following shall not amount to a penalty
within the meaning of this rule, namely:-
(a) retirement of the employee in accordance with the
provisions relating to superannuation:
(b) replacement of a teacher who was not qualified on the
date of his appointment by a qualified one;
(c) discharge of an employee appointed on a short-term
officiating vacancy caused by the grant of leave,
suspension or the like."
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The procedure prescribed for imposing major penalty is under
Rule 183 which thus provides that no order imposing any major penalty to an
employee is to be made except after enquiry. The same reads thus:-
"183. Procedure for imposing major penalty -
Section 24(2). - (1) No order imposing on any employee
any major penalty shall he made except after an inquiry
to be held, in the manner specified below:-
(a) The disciplinary authority shall frame definite
charges on the basis of the allegationon which the
inquiry is proposed and a copy of the charges
together with the statement of the allegations on
which they are based shall be furnished to
employee and he shall be required to submit within
such time as may be specified by the disciplinary
authority but not later than two weeks, a writ- ten
statement of his defence and also to state whether
he desires to be heard in person
(b) On receipt of the written statement of
defence, or where no such statement is received
within the specified time, the disciplinary authority
may itself make inquiry into such of the charges as
are not admitted or if it considers necessary to do
so, appoint an inquiry officer for the purpose.
(c) At the conclusion of the inquiry, the inquiry
officer shall prepare a report of the inquiry
recording his findings on each of the charges
together with the reasons thereof,
(d) The disciplinary authority shall consider the
report of the inquiry and record its findings on
each charge and if the disciplinary authority is of
opinion that any of the major penalties should be
imposed, it shall:-
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(i) furnish to the employee a copy of the
report of the inquiry officer, where an
inquiry has been made by such officer;
(ii) give him notice in writing stating the
action proposed to be taken in regard to him
and calling upon him to submit within the
specified time, not exceeding two weeks, such
representation as he may wish to make
against the proposed action
(iii) on receipt of the representation, if any,
made by the employee, determine what
penalty, if any, should be imposed on the
employee and com- municate its tentative
decision to impose the penalty to the
managing committee for its prior approval;
(iv) after considering the representation
made by the employee against the penalty,
record its findings as to the penalty, which it
proposes to impose on the employee and
send its findings and decision to the
managing committee for its approval and
while doing so the disciplinary authority
shall furnish to the employee all relevant
records of the case including the statement of
allegations, charges framed against the
employee, representation made by the
employee, a copy of the inquiry report,
where such inquiry was made and the
proceedings of the disciplinary authority.
(2) No order with regard to the imposition of a major
penalty shall be made by the disciplinary authority except
after the receipt of the approval of the managing
committee."
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On the perusal of the above, it would be clear that the prescribed
procedure has been put in place and the said procedure was never followed at
any stage by the school while dispensing with the services of the respondents.
It further provides that imposition of major penalty is only to be done by the
disciplinary authority except after the receipt of the approval from the
Managing Committee.
A perusal of the order of termination would also go on to show
that it is signed by one D.N.A. Mountford and as per sub-clause 2 mentioned
above, the imposition of major penalty is to be made by the disciplinary
authority only after receipt of approval of the Managing Committee.
Rule 184 further provides that an employee is liable to be
reinstated as a result of appeal. The same reads as under:-
"184. Payment of pay and allowances on
reinstatement - Section 24(2). - (1) When an employee
who has been dismissed or removed from service
reinstated as a result of appeal or would have been so
reinstated but for his retirement on superannuation
while under suspension preceding the dismissal or
removal, as the case may be, the managing committee
shall consider and make a specific order :-
(a) with regard to the salary and allowances to be paid
to the employee for the period of his absence from duty,
including the period of suspension preceding his
dismissal or removal, as the case may be; and
(b) whether or not the said period shall be treated as the
period spent on duty.
(2) Where the managing committee is of opinion
that the employee who had been dismissed or removed
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from service has been fully exonerated, the employee
shall be paid the full salary and allowances to which, he
would have been entitled had he not been dismissed or
removed from service or suspended prior to such
dismissal or removal from service, as the case may be:
Provided that where the managing committee is of
opinion that the termination of the proceedings
instituted against the employee had been delayed due to
reasons directly attributable to the employee, it may,
after giving a reasonable opportunity to the employee to
make representation, if any, made by the employee,
direct, for reasons to be recorded in writing, that the
employee shall be paid for the period of such delay only
such proportion of the salary and allowance as it may
determine.
(3) The payment of allowance shall be subject to
all other conditions under which such allowances are
admissible and the proportion of the full salary and
allowances determined under the proviso to sub-rule (2)
shall not be less than the subsistence allowance and
other admissible allowances."
Rule 185 further talks about the fact that the employee has a
right of appeal against the order of the disciplinary authority which is to be
referred to the Disciplinary Committee. The same reads thus:-
"185. Disciplinary committee - Section 24(2).-
(1) In case the employee wishes to appeal against the
order of the disciplinary authority, the appeal shall be
referred to a disciplinary committee. The disciplinary
committee shall consist of the following:-
(a) the chairman of the school managing committee or
in his absence any member of the managing committee
nominated by him;
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(b) the manager of the school, and where the
disciplinary proceeding is against him, any other person
of the managing committee nominated by the chairman;
(c) a nominee of the Board/appropriate authority. He
shall act as an adviser;
(d) the head of the school, except where the disciplinary
proceeding is against him, if the disciplinary
proceedings are pending against him then the head of
any other school nominated by the managing committee.
(e) one teacher who is a member of the school managing
committee nominated by the chairman of the managing
committee.
(2) The disciplinary committee shall carefully examine
the findings of the inquiry officer, reasons for imposing
penalty recorded by the disciplinary authority and the
representation by the employee, and pass appropriate
orders as it may deem fit."
Thus, the argument of the learned counsel that there should not
have been reinstatement directed by the Tribunal is without any basis since
the procedure has been prescribed under the Act and the relevant Rules and
the school is a beneficiary of a recognition granted to it by the State
Government. As noticed above, it is bound by the Rules and the provisions
of the Act but unfortunately neither of these provisions were adhered to at
any point of time before the termination and nor has the school produced its
own rules for which an adverse inference has to be taken against it. The
matter was also dismissed in limine by the learned Single Judge without
calling for response and, thus, there was no detailed consideration on the
issue of procedure which was to be followed and the subsequent right of
reinstatement.
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Reinstatement is to be granted to protect the helpless employee
against the illegal acts of the employer who was in a position to dominate. As
per Blacks Law Dictionary, VI Edition, it means to reinstall, to re-establish,
to place again in a former state, condition, or office. Thus, it is to restore to a
state of position from which object or person had been removed. The illegal
action as such taken by the employer which has adversely effected the
employee when the relationship of employer-employee had been cut off has
led to the source of income of the employee to be finished. It is to be noticed
that on account of the said fact, the present respondents-couple's three
children also would have faced harassment and humiliation on account of the
fact that their parents had been unceremoniously shunted out of the school,
the psychological impact of which cannot be gauged in any manner. Thus,
the purpose as such of reinstatement is only to put the person back in position
alongwith the necessary relief as such under normal circumstances with back
wages. In TMA Pai Foundation's case (supra), the Apex Court noticed that
the relationship between the management and employee is contractual in
nature but in disciplinary proceedings which had to be conducted have to be
done by keeping in mind the principles of natural justice. It was, however,
held that disciplinary action has to be evolved by the management itself and
regulations could be framed governing service conditions for teaching and the
other staff subjected to punishment and termination from service.
Resultantly, it was observed that appropriate Tribunal should be constituted.
The relevant portions read thus:-
"64. ...In the case of educational institutions,
however, we are of the opinion that requiring a teacher
or a member of the staff to go to a civil court for the
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purpose of seeking redress is not in the interest of
general education. Disputes between the management
and the staff of educational institutions must be decided
speedily, and without the excessive incurring of costs. It
would, therefore, be appropriate that an educational
Tribunal be set up in each district in a State, to enable
the aggrieved teacher to file an appeal, unless there
already exists such an educational tribunal in a State the
object being that the teacher should not suffer through
the substantial costs that arise because of the location of
the tribunal; if the tribunals are limited in number, they
can hold circuit/camp sittings in different districts to
achieve this objective. Till a specialized tribunal is set
up, the right of filing the appeal would lie before the
District Judge or Additional District Judge as notified by
the government. It will not be necessary for the institution
to get prior permission or ex post facto approval of a
governmental authority while taking disciplinary action
against a teacher or any other employee. The State
government shall determine, in consultation with the
High Court, the judicial forum in which an aggrieved
teacher can file an appeal against the decision of the
Management concerning disciplinary action or
termination of service."
Thus, it is apparent that the Apex Court was conscious of the fact
that employees of unaided institutes also have to be duly protected. It is
keeping in mind these observations and the argument raised by the counsel
for the Institute that it is a case of a contract inter se and, therefore, there
should be no reinstatement and keeping in mind the law laid down by the
Apex Court also in Executive Committee of Vaish Degree College, Shamli
vs. Lakshmi Naraian, AIR (1976) SC 888. The said view was also followed
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in Smt. J. Tiwari vs. Smt. Jawala Devi Vidya Mandir and others, 1979 (4)
SCC 160 wherein, the claim for reinstatement by the Principal as such was
converted by the High Court into decree for damages denying the order of
reinstatement on the ground that the institution was a private one and there
was a contract inter se both of them. The same view was taken in Dipak
Kumar Biswas vs. Director of Public Instructions and others, (1987) 2 SCC
252 wherein, an aided institute had discontinued the services of the Lecturer
in English and one year's salary and allowances as damages had been granted
by the High Court. The said order was modified to the extent that 3 year's
salary and allowances be paid at the rates prevalent at the time of termination.
In the present case, much water has flown after the order of the
termination which was 7 years back. The operation of the orders of the
Tribunal were ordered to be stayed subject to deposit of sum of
Rs.20,00,000/- in both the appeals on 03.08.2018 . It is not disputed that the
amount was deposited with the Registrar (Judicial) of this Court and was
directed to be released to the respondents on furnishing of adequate security
without prejudice to their rights. Liberty was also granted to them to make a
counter offer. Eventually, the said amount was also accordingly received by
them and the matter has remained pending thereafter. An effort was made
thereafter also by this Court that the matter be settled on account of the
additional compensation, to which the respondents were not agreeable and
only claimed reinstatement.
Keeping in view this background, we are of the considered
opinion that the observations of the Apex Court in Kailash Singh's case
(supra) would squarely cover the matter and instead of directing
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reinstatement, the compensation element as such could be increased on
account of the school having failed to follow the procedure prescribed under
the Rules. In the said judgment, two employees, one of whom was a Class IV
employee and the other a Lower Divisional Clerk whose services had been
terminated unceremoniously by the unaided school after they had put in more
than 15 years of service. The reason for their misconduct was the dharna
which they had put on the annual day and the legal error the school had
committed was that they had not taken the prior approval of Director,
Education while passing the order of termination, which was the requirement
under the Rajasthan Non-Government Educational Institutions Act, 1989.
The Tribunal had passed an adverse order against the school which was
upheld by the learned Single Judge of the Rajasthan High Court. Before the
Division Bench, on account of the fact that the employees had lost the
confidence with the management, relief was moulded to compensation
equalling 5 years' salary on the basis of last pay and allowances drawn by
them. It was also noticed that the said employees were staying in the school
and had accordingly been asked to leave.
The employees preferred an SLP and the Apex Court, while
placing reliance upon the judgment in TMA Pai Foundation's case (supra),
came to the conclusion that there is a master-servant relationship inter se both
and it was a contract of employment and was not capable of specific
performance and the conduct of the employees was such that it had resulted
in loss of confidence. Accordingly, it was held that sum of Rs.9.75 lakhs
would be payable to one employee and for the other employee who was still
in service, Rs.21 lakhs was the amount which had become payable as per the
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calculations given by the parties. Accordingly, the Apex Court, while
exercising its jurisdiction, quantified the amount payable as Rs.25,00,000/- in
Kailash Singh's case and Rs.18,00,000/- in the case of the Lower Divisional
Clerk who had already superannuated subject to the adjustment of
Rs.5,00,000/- which had already been paid earlier.
Thus, applying the said principle and keeping in view the fact
that there has been bad blood between the management and the respondents-
employees in as much as three of their children had also been forced to leave
the school where they were getting free education on account of the
employment of their parents. Thus, we are of the considered opinion that the
ends of justice would be served if Mrs. Parveen Shekhawat is paid a total
amount of Rs.20,00,000/- as compensation on account of the illegal action of
the school management in terminating the services without any enquiry as she
was drawing around Rs.13,000/- at the time of appointment and Rs.48,000/-
at the time of termination. Keeping in view the fact that her husband Mr.
Ajay Singh Shekhawat was getting a higher scale and his gross emoluments
were Rs.25,000/- at the time of appointment and Rs.79,000/- at the time of
termination, we are of the considered opinion that he would be entitled to
Rs.30,00,000/- as compensation. The above said compensation of
Rs.50,00,000/- would be subject to the adjustment of Rs.20,00,000/- which
they had already received way back in the year 2018.
Accordingly, in view of the above, the present appeals of the
school are dismissed subject to the condition that the said amount be paid to
the respondents by way of demand draft, bank transfer within a period of one
month from the date of receipt of certified copy of the order. In case the
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needful is not done, the respondents will be free to enforce the orders of
reinstatement, as directed by the Tribunal and claim all necessary back
wages. Resultantly, all pending miscellaneous applications stand disposed of
accordingly.
(G.S. SANDHAWALIA)
JUDGE
14.12.2022 (HARPREET KAUR JEEWAN)
shivani JUDGE
Whether reasoned/speaking Yes/No
Whether reportable Yes/No
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