AI Structured Summary
Not yet generated for this judgment
Judgment
Rule. Rule made returnable forthwith. Heard finally with the consent of the parties.
By way of this petition, petitioner prays for payment of full back wages from the date of termination till date of reinstatement in service i.e. from 15.04.2019 to 16.05.2023 to him by respondents.
The facts in present petition are restricted to which are necessary for disposal of the present petition. The petitioner has working under respondent Nos. 1 to 3 on the post of 'Assistant Teacher' under Nomadic Tribe-NT-B Category in the respondent No.3 school vide approval order dated 28.03.2002 accorded by respondent No. 4. There is prior history to the litigation between present petitioner and respondents with regards to termination order of the petitioner and the said issue has been decided by order and judgment of learned Additional School Tribunal, Chandrapur, vide judgment dated 01.12.2023, which is not challenged by the respondents and has attained finality.
The petitioner herein has challenged the very same order only in respect of the payment of back wages from the date of termination till date of reinstatement in service.
I have heard learned Senior Counsel for the petitioner, learned Counsel respondent Nos. 1 to 3 and learned AGP appearing for respondent Nos. 4 and 5/State.
Learned Senior Counsel for petitioner submits that Tribunal failed to consider back wages from the date of termination of petitioner till the date of appeal, without mentioning any reason whatsoever and thus the petitioner is entitled for full payment of back wages.
Learned AGP for respondent/State submits that respondent No.1 have not followed the procedure and passed dismissal order against petitioner but in lieu of the order dated 01.12.2023 passed by the learned tribunal respondent Nos. 1 to 3 have reinstated the petitioner on 06.12.2023 and has paid the back wages for the period of 17.05.2023 to 07.12.2023 to the tune of Rs 4,52,407/- and there is no adverse finding recorded by tribunal against respondent No. 4 and 5 and they are not liable to pay any kind of back wages to petitioner.
She further submits that as statutory requirements are not followed by the management, he prays to direct the management to deposit the amount given by respondent Nos. 4 and 5 to the petitioner while complying with the order passed by the learned tribunal.
Learned Counsel for respondent Nos. 1 to 3 has opposed the relief sought by petitioner, she states that ample amount of time was given to petitioner to complete the D.Ed course but he failed to do so and therefore the respondents terminated the service of the petitioner vide order dated 28.04.2012. She further submits that petitioner was served with two show cause notices where the petitioner chose not to give any explanation and again terminated the service of petitioner vide order dated 15.04.2019, thus petitioner has suppressed material facts.
She submits that, the behavior of petitioner tainted where different allegations are made against petitioner including outraging modesty of girl, being absent during prayer sessions of school and regularly leaving the school before the prescribed time. He further submits that FIR has been lodged against the petitioner by Shri Bommawar, Headmaster of School as petitioner has threatened to kill him.
Lastly, she submits that petitioner is not entitled to back-wages as it was petitioner's fault for not taking appropriate legal steps and approach the Competent Authority therefore respondent cannot be saddled with burden of paying back wages.
I have considered the contentions canvassed by the learned Counsel for the respective parties and, with their assistance, have also gone through the record.
It is an admitted fact on record that the judgment of the Additional School Tribunal, Chandrapur, in Appeal No. 15 of 2023 is impugned by the appellant to the extent it refuses full back wages for the period from 15.04.2019 to 16.05.2023 to him. It is further admitted that the said judgment has neither been challenged by the respondents. Therefore, the direction in the judgment of the School Tribunal regarding reinstating the appellant as an Assistant Teacher with continuity of service attains finality. As can be seen from the submission on behalf of respondents Nos. 1 to 3 that in pursuance of the said judgment, the petitioner was reinstated in service with effect from 08.12.2023.
Therefore, the only question which calls for adjudication is the question of back wages. As can be seen from the judgment impugned, the respondents herein are directed to pay full back wages to the petitioner from 17.05.2023 till his reinstatement, within three months from the judgment. The date 17.05.2023 is decisive since it is on the said date that the petitioner herein filed an appeal before the School Tribunal along with application for condonation of delay. This has weighed with the School Tribunal to grant back wages from the said date onwards.
True it is that Section 11 of the Maharashtra Employees Of Private Schools (Conditions Of Service) Regulations Act confers a discretion on the School Tribunal while deciding appeal under Section 9 to grant back wages from a date as it deems fit. However, as observed by the School Tribunal in paragraph No. 21 of the impugned judgment, no person is appointed on the post after dismissal of the petitioner. The School Tribunal further records a finding that in view of the conclusion that the order of dismissal was illegal, the petitioner is required to be reinstated with continuity of service. As can be seen from the said paragraph, there is an affidavit filed at Exhibit 22 on the record of the School Tribunal that he is not in any employment after his dismissal.
It is noteworthy to mention that the counter affidavit has also been filed by the management, but in the said affidavit, it is not denied regarding the appellant being out of employment after his dismissal. The affidavit of the management further goes on to show that the school is receiving 100% grant and the post is still vacant. Therefore, the judgment records a finding that granting full wages to the appellant would be just and proper. But, according to the School Tribunal, the said back wages are to be from the date on which the appeal along with delay application was filed.
The learned Counsel for the respondent Nos. 1 to 3 have relied upon the following judgments :
Ajaib Singh versus Sirhind Co-operative Marketing-Cum-Processing Service Society Limited and another, (1999) 6 SCC 82.
ii) Assistant Engineer, Rajasthan Development Corporation vs. Gitam Singh, (2013) 5 SCC 136.
iii) Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota, (2013) 14 SCC 543.
iv) Jayant Vasantrao Hiwarkar vs. Anoop Ganpatrao Bobde, (2017) 11 SCC 244.
State of Uttar Pradesh vs. Krishna Murari Sharma, 2025 SCC OnLine SC 2928.
The learned Senior Counsel for the petitioner has relied upon the following judgment :
vi) Constable Uma Shankaran vs. Union of India and Others, in Special Leave Petition (C) No. 6903-6904/2020.
In the judgment of Ajaib Singh referred to supra, the Hon'ble Apex Court, in the context of the facts of the case, has stated that the plea of delay if raised by the employer is required to be proved as a matter of fact by showing real prejudice and not as a merely hypothetical defence. However, in the present case, the delay in filing appeal is already condoned.
As far as the judgment of Assistant Engineer, Rajasthan Development Corporation referred to supra, the same was a matter under Section 11-A of the Industrial Disputes Act, and the Hon'ble Apex Court has stated that before exercising its judicial discretion under the said Act, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of appointment, length of service, etc. In the present matter, the same is not in dispute since it is an admitted fact on record that the petitioner was appointed on a clear vacant post which was fully aided.
Another judgment of the Assistant Engineer, Rajasthan State Agriculture Marketing Board, referred to supra speaks about award of compensation in lieu of reinstatement of workman. This is not the present case, and therefore, this judgment also is not applicable.
In the judgment of Jayant Hiwarkar referred to supra, the School Tribunal has granted alternate relief in lieu of reinstatement without indicating, and therefore, the present judgment is also not applicable.
The last judgment which has been relied upon by the Counsel for respondent is State of Uttar Pradesh versus Krishna Murari Sharma, referred to supra, wherein the Hon'ble Apex Court was dealing with a question about the consequence of delay in seeking reference. All these judgments are in view of those peculiar facts, are not applicable in my considered opinion.
The learned Counsel for the petitioner in turn relies on a judgment of the Hon'ble Apex Court in Constable Uma Shankaran versus Union of India and Others, supra, wherein the Hon'ble Apex Court has held that the High Court ought to have undertaken an exercise to ascertain whether the writ petitioner was gainfully employed in the interregnum before denying arrears of salary back wages. Such an exercise seems to have been undertaken by the School Tribunal in the present case since there is an affidavit on record which has not been denied by the respondent herein. In the light of these facts, it was obligatory on the School Tribunal to grant back wages from the date when he was terminated since it is held that the termination is illegal.
In my considered opinion, the said finding is perverse in as much as it does not take into consideration the fact that as the appellant, i.e., the petitioner herein was dismissed from service vide order dated 15.04.2019, the unemployment (which is admitted, it being not denied), would start from 15.04.2019, and the cut-off date as has been mentioned as 17.05.2023 is uncalled for.
The judgment of the School Tribunal is therefore modified and the petition is allowed in following terms:
ORDER
The Writ Petition is allowed.
ii) The respondents are directed to pay full back wages for the period from 15.04.2019 to 16.05.2023 to the petitioner within three months from the date of receipt of the order.
The petition is allowed in above terms. Rule is made absolute.