Leelaram vs Presiding Officer, School Tribunal

P.R. Bora, J.—Being aggrieved by the Judgment and order passed by the School Tribunal, Nagpur in Appeal No. 137 of 1995, decided on 31-7-2012 and by this Court in Writ Petition No. 5945 of 2012, whereby the learned Single Judge has maintained the order passed by the School Tribunal, the appellant has preferred the present appeal. The appellant was appointed in respondent No. 2 School as an Assistant Teacher in the year 1992. His appointment was in accordance with law and was made after following due process of law. He worked on the said post till 30-4-1995. His services were terminated vide order dated 29-4-1995 issued by respondent No. 2 with effect from 30-4-1995. The appellant challenged the said termination by filing an appeal before the School Tribunal at Nagpur (hereinafter referred to as ''Tribunal''). The respondents contested the said appeal. During the pendency of the said appeal, the appellant got appointment as an Assistant Teacher in Zilla Parishad School in Balaghat District (Madhya Pradesh). He joined the said employment on 24-9-1998. The appellant, by seeking necessary amendment in the appeal filed before the School Tribunal, brought on record the said fact. Appeal No. 137 of 1995, so filed by the appellant, was decided by the School Tribunal at Nagpur vide order passed on 31-7-2012. The Tribunal partly allowed the said appeal. It quashed and set aside the impugned termination, being illegal and contrary to law, but did not grant the relief of reinstatement to the appellant and in lieu of that directed respondent No. 1 to pay the appellant Six months salary corresponding to the rate of 1995 as compensation. Dissatisfied with the order passed by the School Tribunal, the appellant preferred Writ Petition No. 5945 of 2012 before this Court. The learned Single Judge dismissed the said appeal vide order passed on 9-1-2013. The said Judgment is challenged in the present appeal.

Heard Shri Jibhkate, the learned counsel appearing for the appellant and the learned Assistant Government Pleader for respondents 1 and 4. Nobody appeared for respondents 2 and 3.

Shri Jibhkate submitted that the School Tribunal has refused the relief of reinstatement to the appellant on erroneous grounds. The learned counsel submitted that passing of the period of 17 years after the order of termination cannot be a ground for refusing the relief of reinstatement when the order of termination is held to be wrongful and illegal. The learned counsel further submitted that the School Tribunal grossly erred in casting burden on the appellant to show that the post was still vacant or otherwise there was any vacancy in respondent No. 2 School, so that he could have been reinstated. The learned counsel further submitted that his existing employment with Zilla Parishad, Balaghat also cannot be a ground for rejecting the relief of reinstatement to the appellant. The learned counsel submitted that sufficient material was placed before the School Tribunal by the appellant to show what amount of salary is being presently received by the appellant and what amount could have been received to the appellant had he been continued in respondent No. 2 School. The learned counsel further submitted that the appellant would suffer huge future losses and would also be losing the benefit of pension if he is not reinstated. The learned counsel submitted that without considering these facts, the Tribunal has passed the impugned order causing grave injustice to the appellant. The learned counsel submitted that the learned Single Judge also could not appreciate the plight of the appellant and maintained the order passed by the School Tribunal.

The learned counsel placed the reliance on the following Judgments to substantiate his contention that reinstatement cannot be refused unless there are some weighty reasons for adopting the course of granting compensation.

i) B.S.N.L. Vs. Bhurumal, , ii) Deaf Employees Welfare Association and Another Vs. Union of India (UOI) and Others, , iii) Bharat Sanchar Nigam Ltd. Vs. Man Singh, , iv) Incharge Officer and Another Vs. Shankar Shetty, , v) Vinaykishore Punamchand Mundhada and Another Vs. Shri Bhumi Kalpataru and Others, , vi) U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, , vii) Divisional Controller, Maharashtra State Road Transport Corporation, Nagpur vs. Withal Balkrishna Kakde, reported in 2006 (1) CLR 49.

Learned AGP supported the order passed by the School Tribunal which has been maintained by the learned Single Judge. As noticed earlier nobody appeared for respondents 2 and 3, however, their written submission is there on record.

The issue which falls for our consideration in the present appeal is: whether the discretion exercised by the School Tribunal of adopting the course of granting compensation in lieu of reinstatement when it had held the impugned termination to be illegal can be upheld and the reasons stated therefor can be fortified.

We have already noted the facts of the case. In Appeal No. 137/1995 the School Tribunal had framed the following issues:

"1. Whether the school was recognized as defined under the MEPS Act, 1971?

Whether the appointment of appellant was made under section 5 of the MEPS Act and Rules?

Whether the impugned termination order is illegal and contrary to law?

Whether the appellant is entitled to the relief as sought?

What order?"

Issues Nos. 1 to 3 have been answered by the Tribunal in affirmative. The Tribunal has recorded a clear finding that the respondent school is recognized as defined under M.E.P.S. Act and further that the appointment of the appellant was made by following due process of law and was thus a legal and valid appointment. The Tribunal has further unambiguously held that the impugned termination order is illegal and contrary to law. The judgment of the Tribunal further reveals that the two main objections raised by the respondent Management; first that the appellant was not duly qualified and was not appointed as per the advertisement and hence was not eligible to be continued on the regular post and second that his appointment was against the reserved category, have been rejected by the School Tribunal. The Tribunal has also recorded a clear finding that the appellant worked continuously for more than 2 years and acquired the status of permanency. In para 13 of the judgment the Tribunal has held that since the impugned termination was not effected by following due procedure as envisaged under section 4(6) of the M.E.P.S. Act, was illegal and contrary to law. However, even after answering all the issues in favour of the appellant employee the Tribunal did not grant him the relief of reinstatement and in lieu of that preferred to grant him compensation equivalent to the 6 months salary corresponding to the amount of salary in the year 1995. It is not in dispute that the respondent Management has not challenged the decision of the School Tribunal in any higher Court. On the contrary, it has unconditionally complied the direction therein.

The Tribunal has given the following reasoning for not granting the relief of reinstatement to the appellant.

"So far as the relief of reinstatement is concerned, almost 17 years have been passed after his termination. The possibility of filling his post by another candidate cannot be ruled out. He has not brought any document to show that the post is still vacant or even otherwise there is vacancy in the school of respondent No. 2 by which the appellant can be reinstated.

Admittedly, he is in employment of Zilla Parishad, Balaghat district (Madhya Pradesh) as a teacher since 24-9-1998."

The question is, whether the reasons as stated by the School Tribunal can be upheld. Law is well settled that where termination of an employee is held illegal and unjustified the relief which would ordinarily follow would be reinstatement with full backwages. In the instant appeal the appellant himself has not pressed backwages, we are restricting our discussion only to the extent of the relief of reinstatement.

There cannot be a dispute that initial burden to prove that the termination by the Management is bad in law, wrongful and illegal, certainly rests on the employee. In the instant case, the appellant has satisfactorily discharged the said burden; resultantly the Tribunal has unambiguously held that the order of termination is illegal and contrary to law. Since in the appeal before the School Tribunal the appellant was also insisting for backwages, the burden was again on him to show that he was not gainfully employed in the aforesaid period and if was employed was not getting same emoluments which he would have received had he been not terminated. Admittedly, the appellant had placed on record the fact of his securing job as an Assistant Teacher in the Zilla Parishad School at Balaghat during pendency of the appeal and has also provided the particulars of emoluments which were being received to him. It is the matter of record that the appellant has amended his memo of appeal and incorporated the particulars as regards to his employment with Zilla Parishad School at Balaghat.

There is nothing on record to show that the respondent Management had disputed the averments so made by the appellant in para 8 of his memo of appeal introduced by way of amendment. There is further nothing on record to show that the comparative charts which the appellant had produced on record of the School Tribunal to show the difference of salary and the other benefits have been denied or disputed by the respondents. Thus, there is no rebuttal from the side of the respondents to the facts pleaded by the appellant and the material brought on record by him to substantiate his pleading and even in such circumstances, the School Tribunal has refused to grant the relief of reinstatement to the appellant.

Under section 11(2)(e) of the M.E.P.S. Act, no doubt, the School Tribunal was having a discretion whether to grant relief of reinstatement with continuity of service and backwages or to refuse the said relief and grant the relief of compensation in lieu of that. However, when the School Tribunal decided to refuse the normal relief of reinstatement it must have exercised the said discretion keeping in view all relevant circumstances. Such discretion is to be exercised in a judicial and judicious manner. The reasons for exercising such discretion must be cogent and convincing and must appear on the face of the record. After having carefully considered the facts involved in the present case and the material available on record, it appears to us that the Tribunal has exercised the discretion mechanically without weighing the circumstances of the case and without due application of mind. According to us, that was no exercise of discretion at all.

It appears that passing of the period of 17 years between filing of appeal and its decision unreasonably weighed in the mind of the School Tribunal for refusing the relief of reinstatement. The question arises can it be the reason for refusing the relief if an employee is otherwise found to be entitled to the said relief. The answer is definitely "no". Moreover, in the present case, there is nothing on record to show that the appeal remained pending for more than 17 years at the instance of the appellant. There is absolutely no discussion in the Judgment of the School Tribunal as to for what reason/s the appeal remained pending for long 17 years. When no blame has been attributed on the part of the appellant for occurrence of the delay in the decision of the appeal, there was no reason for refusing the relief of reinstatement to him on that ground.

It appears that the Tribunal at its own imagined the situation that the post would have been filled by another candidate. However, since there was no material on record and the Tribunal was also not sure about the said fact, the words used by the School Tribunal are that "the possibility of filling of his post by another candidate cannot be ruled out." When there was no concrete material on record to show whether the said post has been filled by another candidate or it is still lying vacant merely on surmise the Tribunal should not have denied the substantive relief of reinstatement to the appellant for which he had become legitimately entitled. Further, the School Tribunal has wrongly and erroneously put the burden on the appellant to bring on record a document to show that the post was still vacant or even otherwise there was vacancy in the school by which he can be reinstated.

As noticed earlier, the burden lies on the employee to prove that his termination is wrongful and illegal; however once he discharges the same, no further burden can be cast on him to establish that in the event his reinstatement is ordered, his employer is in a position to comply the said order. In such cases, it is the employer who has to specifically plead and prove that there are special circumstances which warrant either non-reinstatement or non-payment of backwages. In the present case there was no such pleading either before the Tribunal or the learned Single Judge. Even in present appeal no such case is pleaded. In such circumstances we find that the relief of reinstatement could not have been refused by the Tribunal. When the Management did not bother to plead and prove there was no reason for the Tribunal to take on its shoulders the unwarranted exercise to see whether the post on which the appellant was working is still vacant or whether there is any other vacancy in the respondent No. 2 School. Moreover, as has been pointed by Shri Jibhkate, the learned counsel for the appellant, it is the usual practice that in case any appeal is filed before the School Tribunal or any proceeding is pending in any Court or before any Authority challenging the order of termination, normally the said post is kept vacant and if filled, is always subject to the outcome of the appeal filed by the aggrieved employee. Thus, it was the issue to be bothered by the Management and not by the Tribunal.

The second reason given by the Tribunal for not granting reinstatement to the appellant is that he is gainfully employed since the year 1998 and is in the employment of Zilla Parishad Balaghat as an Assistant Teacher. Now it is to be seen whether this reason can be sustained. The record of the case shows that the appellant has put on record the complete information regarding his employment with the Balaghat School. However, it is significant to note that even thereafter he did not give up his claim and pursued the relief of reinstatement throughout. Effort on his part to place on record the comparative statement in respect of the monetary emoluments and other benefits being received to him from his employment with the Balaghat School and the monetary emoluments and other benefits which he would have received, had he been continued in respondent No. 2 school, volumnly shows that he was genuinely interested in getting reinstated in the respondent No. 2 school. It also cannot be ignored that while carrying the amendment in the memo of appeal in respect of his employment with the Zilla Parishad School at Balaghat the appellant reiterated the prayer of reinstatement with all consequential benefits. The documentary information placed on record by the appellant on the face of it show that had he been continued in respondent No. 2 school the monetary emoluments which would have been received to him would have been many times more than his employment with the Balaghat Zilla Parishad School. Shri Jibhkate the learned counsel for the appellant brought to our notice that the service of the appellant with Balaghat Zilla Parishad school is not pensionable and that is the greatest loss of the appellant if he loses the employment with respondent No. 2 school. As is revealing from the documents filed on record by the appellant he would be receiving the salary approximately Rs. 42,000/- per month had he not been terminated whereas presently he is receiving the salary only to the tune of Rs. 14,800/- per month. We find that this aspect alone is sufficient to justify the prayer of reinstatement constantly pursued by the appellant. It appears that the Tribunal not at all looked into these aspects. In fact this was the issue requiring serious consideration by the Tribunal. The Tribunal has dealt with this issue casually. Without weighing the circumstances, it mechanically decided the said issue to the detriment of the appellant depriving him from the relief of reinstatement. The view taken by the Tribunal cannot be in any way supported.

It is in this background that we proceed to consider the precedents. The Judgment of the Hon''ble Apex Court in the case of Vikramaditya Pandey Vs. Industrial Tribunal and Another, , lays that delay in decision of the case cannot be a reason for not granting the relief of reinstatement if no such case is made out by the employer. In this case, since the employer did not specifically plead and establish that there were special circumstances which warranted non-reinstatement, in spite of the fact that the services of the employee were put to an end in the year 1985, the Hon''ble Apex Court granted him the relief of reinstatement in the year 2001 i.e. after long fifteen years. What was not granted by the Apex Court was the backwages that too to the extent of 50%. Same course could have been adopted by the Tribunal in the case in hand. When the respondent Management had not specifically pleaded and proved that there were special circumstances warranting non-reinstatement, there was no reason for the School Tribunal to deviate from the normal rule of granting reinstatement and to adopt the alternate course of granting compensation merely on the surmises and conjectures.

In case of the Workmen of Assam Match Co. Ltd. vs. Presiding Officer, Labour Court, Assam and another, reported in 1973 (II) L.L.J. 279 it was argued that after passing an award by the Industrial Tribunal since three years have elapsed, the said shall be taken into account in considering the employees request for reinstatement. However, the Hon''ble Apex Court rejected the said contention holding that:--

"If an employer is shown to have dismissed his employee without justification and the decision of the dispute resulting form such dismissal takes time, it cannot be urged by the employer that by passage of time, reinstatement should not be ordered. One of the objects which industrial adjudication has to keep in mind is to assure industrial employees security of tenure. The normal rule is that when the dismissal is unjustified the employees should be reinstated."

In the case of B.S.N.L. Vs. Bhurumal, , relied upon by Shri Jibhkate the Hon''ble Apex Court has reiterated that:

"the terminated worker should not be denied reinstatement unless there are some weighty reasons for adopting the course of grant of compensation in stead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing such a relief can be denied. "

In a recent decision in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Others, , the Hon''ble Apex Court has reiterated that in the case where termination is challenged, if the employer wants to contest the entitlements of an employee i.e. reinstatement and backwages, in the event termination is held illegal, it is for the employer to specifically plead and prove the reasons therefor and if he fails, all normal reliefs shall follow. The Hon''ble Apex Court has observed that: "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 the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children were 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 backwages. If the employer wants to deny backwages 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 backwages 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 backwages including the emoluments."

In the instant case, for the reasons stated above, it is difficult to approve the view taken by the School Tribunal as well as by the learned Single Judge. According to us, the relief of reinstatement could not have been refused to the appellant when his termination was held illegal and the Management has failed in bringing on record any specific reason for non-reinstatement of the appellant. We, therefore, direct respondent Nos. 2 and 3 to reinstate the appellant with continuity of service within Three months from the date of this order. The order passed by the School Tribunal, Nagpur in Appeal No. 137 of 1995 stands modified to this extent. The appeal stands allowed. No order as to costs.