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Judgment
By this petition, the challenge is to the judgment and order passed by the learned Presiding Officer, School Tribunal, Chandrapur dated 24.01.2014 in Appeal No. 29 of 2003.
The facts can be summarized of the present petition as under:
According to the respondent-Employee, she was appointed to the post of Assistant Teacher in petitioner No.2-School with effect from 01.07.1994. She completed the probation period of two years and acquired the status of a deemed confirmed employee. At the time of her appointment, the School was not receiving grant-in-aid. The School started receiving 100% grant-in-aid from June 2002. It is alleged that after the School started receiving grant-in-aid from June 2002, the Management started harassing the respondent-Employee on trivial issues and consequently terminated her services.
The Management, on the alleged misconduct on the part of the respondent-Employee, initiated a departmental inquiry. The respondent-Employee was placed under suspension with effect from 06.02.2003. Thereafter, the Inquiry Committee was constituted and the inquiry was conducted. According to the respondent-Employee, the Inquiry Committee was constituted in violation of Rule 36 of the MEPS Rules with a predetermined intention to terminate her services. In pursuance thereof, the termination order dated 30.04.2003 came to be issued, which was received by her on 01.05.2003.
Being aggrieved by the said termination order, the respondent-Employee preferred a statutory appeal before the School Tribunal, Chandrapur. The appellant raised various grounds before the School Tribunal to demonstrate how the inquiry was conducted in violation of Rules 36 and 37 of the MEPS Rules. The said appeal was contested on merits by petitioner-Management and defended the order of termination issued to respondent-Employee.
Learned counsel for the respondent-Employee submitted that the learned Tribunal while deciding the appeal has considered all the aspects of the matter and held that the appointment of the respondent-Employee was made by following the due procedure of law as contemplated under Section 5 of the MEPS Act read with Rule 9 of the MEPS Rules, and upon completion of the probation period, she acquired the status of a deemed confirmed employee. The learned Tribunal further recorded a finding that there was non-compliance with Rules 36 and 37 while conducting the inquiry against the respondent-Employee and, consequently, by the impugned judgment dated 24.01.2014, allowed the appeal by directing the petitioner-Management to reinstate the respondent-Employee to her former post within a period of one month from the date of the order, with continuity in service.
It is the submission of the learned counsel for the respondent-Employee that after the judgment of the School Tribunal, she attained the age of superannuation on 31.05.2019. As such, the issue that remains for consideration in the present matter pertains only to continuity of service and back wages. The issue of reinstatement no longer survives for consideration.
In the present petition, this Court, by order dated 18th June 2014, granted interim relief in favour of the petitioner-Management and admitted the petition.
In the present petition, petitioner-Management has raised two grounds. Firstly, it is contended that the learned Tribunal failed to consider that the appointment of the respondent-Employee was not in accordance with Section 5 of the MEPS Act read with Rule 9 of the MEPS Rules. Secondly, though the inquiry was conducted in accordance with Rules 36 and 37, the same was not properly appreciated by the learned Tribunal. On these grounds, indulgence of this Court is sought.
Learned counsel for the respondent-Employee has relied upon the judgment of this Court in the case of Sadhana Janardhan Jadhav Vs. Pratibha Patil Mahila Mahamandal & Ors. reported in 2013 (2) Mh.L.J. 484, wherein the Hon’ble division bench of this Court has held that in every case, the issue of appointment is not to be decided by the School Tribunal. Particularly, hen the termination is effected after conducting a departmental inquiry, the issue relating to appointment is not required to be adjudicated. The relevant observations of the Division Bench read thus:
“ We do not find any reason Why the same tenet of law enunciated by the Supreme Court in case of labour disputes majority of which are 'service matters' should also not apply in relation to 'service-matters' of all employees of private schools who institute appeals before the specially created 'School Tribunal' under MEPS Act, 1977.
We, therefore, hold in the light of the law laid down by the Apex Court that the preliminary issue as to whether the appointment of the appellant is made in accordance with Section 5 of the MEPS Act and the Rules there under, should not be framed mechanically in the first place and should be framed only if it arises and is properly substantiated in the pleadings of the parties to the appeal and further at that the School Tribunal should decide all the issues at the same time without trying any or some of them as preliminary issues.”
It is further pertinent to note that Rules 36 and 37 of the MEPS Rules prescribe a specific procedure for conducting a departmental inquiry against an employee. From the findings recorded by the learned School Tribunal, it is evident that the mandate of Rules 36 and 37 was not duly followed. Hence, the finding recorded by the School Tribunal that the departmental inquiry was not properly conducted deserves to be upheld.
In the present case, admittedly, while deciding the appeal, the School Tribunal granted only the relief of reinstatement with continuity in service to the respondent-Employee. There is no specific direction for payment of back wages.
It is an admitted position that petitioner No.2-School started receiving grant-in-aid from June 2002. It is also the submission of the petitioner-Management that after the termination of the respondent-Employee and till she attained the age of superannuation, no other person was appointed to the said post. Thus, the post remained vacant during the pendency of the appeal before the School Tribunal as well as during the pendency of the present writ petition before this Court.
It is pertinent to note that salary is sanctioned against a post and not against a particular individual. In the present case, if no person was appointed to the said post and the post remained vacant, it would indicate that the salary attached to the post was not released by the Education Department. In such circumstances, once Tribunal held that termination of employee is illegal, from that date, the respondent-Employee would be entitled to salary till the date of her superannuation.
Learned counsel for the petitioner strongly opposed the said contention. According to the petitioner-Management, since this Court had granted stay to the judgment and order of the School Tribunal and the same continued to operate throughout, the respondent-Employee is not entitled to salary for the period during which she did not actually work.
The respondent-Employee has filed an affidavit on record dated 23.06.2025 stating that after the judgment of the School Tribunal till the date of attaining the age of superannuation, she was not gainfully employed elsewhere. So also, she has pointed out that she was age barred to get employment elsewhere. The petitioner-Management failed to contravene her affidavit by filing any counter-affidavit.
As per the judgment of the Hon’ble Supreme Court of India in the case of Deepali Gund Surwase Vs. Kranti Junior Adhyapak in the case of (2013) 10 SCC 324, where the termination of an employee is found to be illegal and the employee is directed to be reinstated, she would ordinarily be entitled to back wages, subject to the facts and circumstances of the case. The relevant observations contained in paragraph 38 of the said judgment, read thus:
“ 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.
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.
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 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.
38.7.The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches 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.”
In light of the aforesaid legal position and considering the fact that the respondent-Employee was not gainfully employed during the period from 2014 to 2019, in my opinion, the respondent-Employee is entitled to back wages for the said period. Hence, the following order is passed:
ORDER
The Writ Petition is dismissed.
The petitioner-Management is directed to forward an appropriate proposal to respondent No.2 – Education Officer (Secondary), Zilla Parishad, Chandrapur, within 15 days for 18.08.2026. release of the salary payable to the respondent-Employee for the period from 24.01.2014 till 31.05.2019 and further benefits of service as per provisions of law.
Respondent No.2 – Education Officer (Secondary), Zilla Parishad, Chandrapur, shall consider the said proposal in accordance with law and take an appropriate decision thereon within eight weeks from the date of receipt of the proposal.
The pensionary benefits of the respondent-Employee shall also be processed by forwarding appropriate proposal in accordance with law to the concern appropriate authority within 45 days from the date of receipt of this order.
No order as to costs.