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Judgment
These petitions presented under Articles 226 and 227 of the Constitution of India challenge the orders passed by the learned Presiding Officer, School Tribunal, Nashik Region, Nashik, in the respective appeals.
Since all these petitions involve common questions of law and arise from similar facts, are heard together and disposed of by this common judgment. For the purpose of adjudication, Writ Petition No. 2373 of 2010 is treated as the lead petition.
The petitioner challenges the judgment and order dated 19.12.2009 rendered by the learned Presiding Officer, School Tribunal, Nashik Region, Nashik, in Appeal No. JAL/10/06. The School Tribunal upheld the retrenchment of the petitioner, however, directed the respondent Management to pay compensation equivalent to 12 months' salary. The petitioner seeks reinstatement / absorption in Respondent No. 3 – Engineering College with continuity of service and full back wages or alternatively, enhance the compensation.
The petitioner was appointed as a Lecturer in Respondent No. 2–Polytechnic College on 22.06.1987 and was subsequently promoted as Senior Lecturer on 04.05.1999. Due to dwindling students intake, AICTE placed Respondent No. 2 under the "No Admission" category for the academic year 2005–2006. In view of the resulting financial difficulties, the Management issued a retrenchment notice dated 31.03.2006, effective from 01.07.2006.
The petitioner challenged the retrenchment before the School Tribunal. The Tribunal held that due to the closure of the Polytechnic Division and that the termination was governed by Rule 25A of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 ("MEPS Rules"). Considering the circumstances, the Tribunal granted compensation equivalent to 12 months' salary.
The learned counsel for the petitioner submitted that the retrenchment was illegal as the Management had not obtained prior approval for closure under Section 35(1) of the Maharashtra State Board of Technical Education Act, 1997. It was further submitted that the matter was governed by Rule 26 of the MEPS Rules relating to surplus staff and not Rule 25A relating to closure. Therefore, the Management was required to absorb the petitioner in Respondent No. 3–Engineering College, which is managed by the same Trust and situated in the same premises. The retrenchment order was a colorable exercise of power in light of the previous pay-scale dispute raised by employees in Writ Petition No. 7410 of 2005. Furthermore, the Tribunal failed to consider the petitioner's long and continuous service.
The learned counsel appearing for Respondents Nos. 1 to 4 – Management opposed the petition and supported the order rendered by the School Tribunal. It was submitted that closure of the Polytechnic College was not voluntary but was the result of the institution being placed under the "No Admission" category by AICTE and the State Government due to absence of students. The petitioner's services were retrenched.
The learned counsel for respondents No. 1 to 4 further submitted that the petitioner has no statutory right to claim absorption in another institution merely because both institutions are managed by the same Trust. The compensation awarded by the Tribunal was stated to be reasonable.
The learned AGP supported the submissions of the Management and submitted that the Directorate of Technical Education had processed the closure proposal in view of the regulatory regime. Since the institutions are unaided and self-financed, there is no statutory obligation upon the State to arrange absorption of employees in another private institution.
Having considered the submissions of litigating sides and perusing the material on record, it is apparent that Respondent No. 2 Polytechnic College was unable to continue its activities due to absence of student intake after being placed under the "No Admission" category by AICTE and the State Government.
The reliance placed by the petitioner on Section 35(1) of the Maharashtra State Board of Technical Education Act, 1997, is well founded since unilateral closure of collage is contrary to provision, as regulatory regime regulates closure of collage. In absence of necessary and due permission to close the collage, the plea of closure is not available to respondents No. 1 to 4.
As such, the order of dismissal of appeal presented by petitioner has to be regarded as perverse. However, the request of reinstatement does not warrant consideration in the wake of passage of substantial long period, whereas this Court cannot ignore the fact that the petitioner rendered nearly two decades of service and lost substantial employment due to closure of the institution in derogation of statutory regime. As such, the petitioners are required to be adequately compensated. Where reinstatement is not possible, the Court is required to mould the relief to provide reasonable compensation. While determining such compensation, factors such as length of service, length of remaining employment, and loss of future livelihood are required to be considered.
The record indicates that the petitioner has not been gainfully employed after termination. The compensation of 12 months' salary awarded by the School Tribunal, in the facts of the present case, does not adequately address the hardship caused. It is also brought on record that the respondent no. 1 to 4 acting under the Trust, is a financially sound institution and still continues to operate Respondent No. 3–Engineering College and other educational institutions.
The closure of the institution does not absolve the managing Trust of its legal liabilities toward its employees who have rendered years of service. It is precisely in such situations that the equitable doctrine of "moulding of relief" must be invoked. The High Court, under Article 226 and 227, possesses wide plenary powers to mould the relief to meet the ends of justice and prevent the employees from being left entirely remedy-less.
As held by the Apex Court in Andi Mukta Sadguru v. V.R. Rudani 1989 AIR 1607, a managing trust performing a public duty is fully amenable to writ jurisdiction, and its financial obligations toward its employees can be enforced via a writ of mandamus notwithstanding the operational status of the college.
In Andi Mukta Sadguru (supra), the Apex Court further observed as follows:-
“Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative 'Act 4th Ed. p. 540). We share this view. The judicial control over the fast expanding maze of bodies effecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition. ”
In the present petitions, the petitioners are highly qualified professionals, such as the lead petitioner who served as a Lecturer since 1987 and eventually promoted to the position of Senior Lecturer. They were wrongfully separated from service due to the mismanagement or dwindling student intake that led to the AICTE to place college in "No Admission" categorization. To award a mere 12 months' salary as compensation after decades of dedicated service fails to balance the scales of equity or adequately mitigate the sudden loss of employment security.
Consequently, while this Court upholds the School Tribunal's finding of reinstatement is impossible due to the closure of the Polytechnic Division, the relief must be moulded to safeguard the employees' rights. The compensation awarded by the Tribunal warrants substantial enhancement. Furthermore, the managing Trust cannot escape its financial liabilities behind the veil of a closed institution. The financial burden to satisfy this enhanced lump-sum compensation, along with all accrued statutory terminal benefits must be fastened directly, jointly, and severally upon the Respondent-Trust and its surviving assets.
Considering the peculiar facts and circumstances of the case, including the long years of dedicated service rendered by the lead petitioner along with other petitioners and also remainder of the service at the relevant time of retrenchment, this Court is of the considered view that a lump-sum compensation of Rs. 20,00,000/- (Rupees Twenty Lakhs Only) would meet the ends of justice. The said amount shall be treated as full and final settlement of all claims arising out of the petitioner's retrenchment, including back wages, in lieu of reinstatement.
Accordingly, the order rendered by the School Tribunal needs to be modified to the extent of the compensation awarded. Hence, following order :-
ORDER
The writ petitions are partly allowed.
The judgment and order dated 19.12.2009 passed by the School Tribunal, Nashik, in Appeal No. JAL/10/06 is modified in following terms:-
I) Respondents Nos. 1 to 4– Management shall pay consolidated lump-sum compensation of Rs. 20,00,000/- (Rupees Twenty Lakhs Only) to each of the petitioner/employees.
II) The said amount shall be paid / deposited within a period of three months from today. In case of failure, the amount shall carry interest at the rate of 9% per annum until actual realization. Any amount already paid pursuant to the order of the School Tribunal shall be adjusted against the final amount payable.
Rule is made absolute in the above terms. No order as to costs.
After the pronouncement of the judgment, the learned counsel for the respondents requested that the implementation of the judgment and order be stayed for enabling to approach the Hon’ble Supreme Court.
However, considering that the petitioners have been litigating these petitions since the year 2010, the request made by the counsel for the respondents does not warrant consideration. Consequently, the same is rejected.