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Judgment
B.P. Dharmadhikari, J—In L.P.A. the management/employer questions the judgment and order of learned Single Judge dated 11.6.2002 in W.P. No. 2314 of 2001. There is also a prayer to set aside the judgment dated 20.3.2001 in appeal No. STN143/93 delivered by Additional School Tribunal, Nagpur (Chandrapur).
The School Tribunal found termination of respondent/assistant teacher with effect from 15.3.1993 and 15.4.1993 unsustainable. A direction to reinstate her with 50% salary from 15.3.1993 till reinstatement came to be issued. The learned Single Judge of this Court on 11.6.2002 dismissed the writ petition and that dismissal is questioned by the management in L.P.A.
It is not in dispute that in the meanwhile, the respondent/assistant teacher has been reinstated and though the learned counsel for respondent/employee is not in a position to confirm, counsel for management submits that she is being paid regular salary.
W.P. No. 3159/01 is filed by the said assistant teacher for releasing remaining 50% of salary for the period from 15.3.1993 till 29.6.2001, i.e. the date of her reinstatement.
As the respondent/assistant teacher is already reinstated, the management has chosen to restrict the challenge in L.P.A. to grant of 50% back wages. Submission in the light of case law is that burden to plead and prove absence of gainful employment is on the respondent and as the respondent failed to do so, even grant of 50% back wages cannot be allowed. According to Advocate Pathak, appearing for the employer/management, conduct of respondent/employee is also an important circumstance. She avoided to perform her duties by remaining absent and hence a notice dated 15.1.1993 was served upon her. In fact, the management had then felt the need of holding of Departmental Enquiry, but later on that idea was given up. As the employee was keeping away, with the permission of Education Department one M.P. Jaiswal was appointed to discharge the workload of respondent/assistant teacher. Submission is, thus the wages for work for which respondent/assistant teacher ought to have performed are already paid to said Jaiswal.
In this background, our attention is invited to the judgment of the Hon''ble Apex Court reported in Kendriya Vidyalaya Sangathan and Another Vs. S.C. Sharma, AIR 2005 SC 768 : (2005) 1 ESC 125 : (2005) 104 FLR 863 : (2005) 1 JT 336 : (2005) 2 LLJ 153 : (2005) 2 SCC 363 : (2005) SCC(L&S) 270 : (2005) 1 SCR 374 : (2005) 2 SLJ 261 to substantiate the argument that burden in this situation was always upon the respondent. It is submitted that the School Tribunal as also the learned Single Judge have overlooked this aspect and granted 50% back wages almost mechanically.
It is further submitted that W.P. No. 3159/01 filed by respondent/assistant teacher is erroneous as it does not challenge the judgment of School Tribunal or even the judgment of learned Single Judge.
Advocate Chitale holding for Advocate Naik supports the judgment of School Tribunal as also the judgment of learned Single Judge. He relies upon the judgment of Hon''ble Apex Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Others, (2013) 6 ABR 304 : (2013) 10 AD 89 : (2013) 139 FLR 541 : (2013) LabIC 4249 : (2013) 4 LLN 417 : (2013) 11 SCALE 268 : (2013) 10 SCC 324 : (2013) 4 SCT 716 to urge that there is a larger Bench judgment of Hon''ble Apex directly on the point and reported in Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, AIR 1979 SC 75 : (1978) 37 FLR 240 : (1978) 2 LLJ 474 : (1979) 2 SCC 80 : (1979) 1 SCR 563 : (1978) 10 UJ 712 , has been considered. He further submits that when the matter was pending before the School Tribunal, in the light of grievance of the respondent that she was not permitted to join, an attempt was made in 1996 and that attempt is looked into by the School Tribunal while delivering the judgment. Our attention is also drawn to the fact that as judgment was not being delivered by the School Tribunal because there was no Presiding Officer, W.P. No. 212/01 was filed before this Court by respondent for expeditious disposal of that appeal. In that writ petition, the poor financial condition and near starvation situation of respondent was placed before this Court. The writ petition was disposed of on 15.3.2001 with a direction to dispose of the appeal expeditiously.
Our attention is also invited to the prayer clause made before the School Tribunal to show that a prayer for back wages was very much made. Learned counsel submits that the entitlement of an employee like respondent No. 1 needs to be found out after evaluation of entire material on record. There cannot be any straight-jacket formula for the same. It is further submitted that writ petition No. 3159 of 2001 has been filed on 27.8.2001, while the judgment impugned in L.P.A. Is delivered thereafter, i.e. 11.6.2002 by Single Judge.
The relationship between the parties is regulated under the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder. Termination order was questioned before the School Tribunal by the respondent and that forum is made available by Section 9 of the said Act. Judgment in that appeal came to be delivered on 20.3.2002. As per that judgment, respondent has been given relief of reinstatement with continuity and 50% back wages. This judgment was questioned by the employer/management by filing W.P. No. 2314/01 which came to be dismissed on 11.6.2002 after hearing both the sides. Thus, the respondent/employee was very much aware of pendency of said challenge.
In the face of this challenge, on 27.8.2001 when it was open to the respondent to question the judgment delivered by the School Tribunal to the extent it denied 50% back wages to her, respondent chose not to question that judgment and preferred a writ petition before this Court. By that writ petition, remaining 50% back wages which were denied or rejected by the School Tribunal were sought.
As already mentioned supra, when in a statutory appeal entitlement of parties is already decided and it has become final, without challenging that adjudication, a direct writ petition to get over it could not have been filed. So long as the judgment dated 20.3.2001 delivered by the School Tribunal holds the field, the respondent cannot claim 100% back wages. That was possible only by questioning said judgment of School Tribunal before the learned Single Judge. That having not been done, it is apparent that a direct writ petition bearing W.P. No. 2314/01, for the very same purpose cannot be looked at this stage. We only mention that it was open to the respondent to have W.P. No. 3159/01 considered along with W.P. No. 2314/01 filed by the management and decided on 11.6.2002.
The only question left to be considered is, whether grant of 50% back wages to respondent by school Tribunal and upheld by the learned Single Judge of this Court can be faulted with.
Perusal of judgment of School Tribunal shows that the said grant appears only in paragraph 32 thereof. In earlier paragraphs there is absolutely no discussion on issue of back wages. The question whether the appellant before it is entitled to any back wages is, therefore, not touched by the School Tribunal at all. In the penultimate paragraph, while granting relief of reinstatement, it has been mentioned 50% of back wages. Why 50% salary is allowed or why remaining 50% is denied is not discussed.
Perusal of order of learned Single Judge dated 11.6.2002 in W.P. No. 2314/01 again does not disclose any specific application of mind on these lines. It appears that no such contention was raised before the learned Single Judge when the writ petition was argued. The appellant management has not urged before us that grant of 50% back wages was questioned before the learned Single Judge specifically and contentions in that regard were raised during arguments. It is not their case that though said challenge was argued, learned Single Judge has failed to consider it.
The developments show that in the light of subsequent judgment delivered by the Hon''ble Apex Court in Kendriya Vidyala Sangathan & anr. v. S.C. Sharma and U.P. State Brassware Corporation Ltd. & anr. v. Uday Narain Pandey, 50% back wages are being assailed before us.
We have perused the judgments cited by the respective parties. Shri Pathak also invited our attention to the judgment in Novartis India Ltd. Vs. State of West Bengal and Others, (2009) 120 FLR 618 : (2008) 13 JT 12 : (2009) 2 LLJ 9 : (2008) 15 SCALE 470 : (2009) 3 SCC 124 : (2009) 1 SCC(L&S) 595 : (2009) 2 SLJ 252 : (2009) 1 SLR 675 . The judgment is delivered by the Hon''ble Shri S.B. Sinha, J., (as he then was) who also authored the judgment in case of U.P. State Brassware Corporation Ltd., supra. The judgment delivered by the Hon''ble Apex Court in Deepali Gundu Surwase v. Karanti Jr. Adhyapak Maha Vidyalaya, supra, is also considered by us. In the last judgment, in paragraph 22, the Hon''ble Apex Court has explained the logic behind restoring the employee to the position which he held before his termination. It is explained that with the passing of an order of termination, employee''s source of income gets dried up and his entire family suffers great adversities. It is observed that if an employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for the employer to specifically plead and prove that during the intervening period the employee was gainfully employed and getting some emoluments. In paragraph 23, the view of larger Bench of Hon''ble Apex Court in the case of Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, AIR 1979 SC 75 : (1978) 37 FLR 240 : (1978) 2 LLJ 474 : (1979) 2 SCC 80 : (1979) 1 SCR 563 : (1978) 10 UJ 712 finds mention with approval. The Hon''ble Apex Court in U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey, supra, has in paragraph 27 referred to this large Bench judgment. In paragraph 17, the Hon''ble Apex Court has observed that with passage of time a pragmatic view of the matter is being taken after realising that an Industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to the Industry. In paragraph 18, it has taken note of undisputed fact that employer did not plead anything about the absence of employment after his retrenchment.
It, therefore, appears that the situation, facts and circumstances, prevailing and available in each matter need to be considered by a Court to find out entitlement of such employee for grant of back wages. Here, the question has been raised for the first time in L.P.A.
Perusal of the appeal memo filed before the School Tribunal by the respondent/employee shows a prayer for reinstatement with continuity and full back wages. In ground No. 3 of appeal memo, respondent prayed that she had not given up her service and was not terminated by the management and hence action of respondents was illegal. In ground (a), it is alleged that action of management had put the students to inconvenience and it also resulted in hardship to the appellant, as she is not getting monthly salary. In this background, when there was a prayer for grant of reinstatement with full back wages before the School Tribunal, the employer/management could have opposed relief of back wages by pointing out availability of gainful employment or alternate source of income. The management remained satisfied by denying the story of the employee.
It is in this background that we have to consider the order of School Tribunal. The School Tribunal heard both the sides and while delivering the judgment found it proper to grant only 50% back wages. In other words, it has denied remaining 50% to the respondent. Though no express reasons are recorded therefor, a Judicial Officer functioning as Presiding Officer has reached that view. This exercise or view was not questioned effectively before the learned Single Judge of this Court. With the result, the learned Single Judge has also maintained that grant.
The counsel for respondent No. 1/employee has produced before us a certified copy of the order passed in W.P. No. 212 of 2001 on 15.3.2001. Submission is, the respondent/employee was constrained to file that writ petition due to absence of source of income. Plight of petitioner was pressed into service and early disposal of pending appeal was requested. However, as those documents are not on record, we are not inclined to look into the same.
It cannot be said that before the School Tribunal there was no material on record to allow back wages to employee/respondent No. 1. Hence, grant of 50% back wages cannot be said to be wholly misconceived and it is not without jurisdiction.
The contention that employer/management made alternate arrangement with prior permission of Education Officer and appointed one M.P. Jaiswal to discharge her work load, cannot have any bearing on entitlement of respondent No. 1 to 50% back wages. This may be a valid ground to claim reimbursement of 50% wages directed to be paid by the School Tribunal to respondent No. 1, however, we cannot record any conclusive finding in this respect as Education Officer is not a party to the present litigation.
In view of this discussion, L.P.A. and also writ petition are dismissed. Rule discharged. No costs.