EDUCATIONAL SOCIETY, TUMSAR AND ORS. Vs. STATE OF MAHARASHTRA AND ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 670 of 2016, Judgment Date: Feb 01, 2016
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 670 OF 2016
(ARISING OUT OF SLP (C) NO.3816 OF 2015)
EDUCATIONAL SOCIETY, TUMSAR AND ORS. .....APPELLANT(S)
VERSUS
STATE OF MAHARASHTRA AND ORS. .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
Leave granted.
2. This appeal raises a short but significant question of law.
Appellants herein is a society running a school. Said school is an aided
institution which is provided aid to the extent of 100% by the State of
Maharashtra (respondent No.1). The aid includes the element of salaries
that is payable to the Teachers and other staff employed by the school.
Services of respondent No. 4 were terminated by the appellants-society.
This termination order was challenged by respondent No. 4 by filing an
appeal in the School Tribunal, Nagpur which was pleased to set aside the
termination with direction to reinstate respondent No. 4 and also pay back
wages for the intervening period. Order of the School Tribunal was upheld
by the High Court as the appellants and respondent No. 4 entered into a
settlement whereby the appellants agreed to abide by the same. As per
the direction of the School Tribunal, which has attained finality,
respondent No. 4 is to be paid back wages. The issue is as to who is to
ultimately bear this financial burden, namely, whether appellants are
supposed to pay the back wages to respondent No. 4 out of its own pocket or
is it to come from the coffers of the State which is granting financial aid
to the school.
The detailed factual backdrop in which the said issue has come up for
discussion needs to be traversed at this stage:
Appellant No. 1 Educational Society, Tumsar is the
registered society, registered in the year 1983 under the Societies
Registration Act. It is registered in the year 1983 under the provisions
of Bombay (now Maharashtra) Public Trusts Act, 1950 having its registration
PTR No. F-896(B). The trust is formed with object of spreading education.
Appellant No. 1 Society is running appellant No. 3 school which is on 100%
grant in aid by the Government of Maharashtra. Appellant No. 1 initiated
departmental enquiry against its employee, respondent No. 4, who was
working on the post of the Assistant Teacher in appellant No.3 school and
was also acting as Incharge Headmaster for a short period. Respondent No.
4 was terminated vide order dated 20.09.2010. Respondent No. 4 was
appointed on sanctioned post as per the provisions of Section 5 of the
Maharashtra Employees of Private Schools (Conditions of Service) Regulation
Act, 1977 and Rules, 1981.
On 28.04.2011, the termination order was challenged by the
respondent No. 4 before the School Tribunal, Nagpur. The School Tribunal,
Nagpur was pleased to set aside the said termination order in Appeal No. A-
56/2010 with a direction to reinstate the respondent No. 4 and pay back
wages. The relevant portion of the direction given by the School Tribunal
in this behalf reads as under:
“ORDER
The appeal is allowed.
The termination order of appellant dated 20.09.2010 issued by the
respondent No. 2 as President of respondent No. 1 is hereby quashed and set
aside being illegal and contrary to law.
The respondents no. 1 and 3 are hereby directed to reinstate the appellant
as Assistant Teacher in the said college with full back wages and all
service benefits within one month from the date of order.
In the consequences, the respondent nos. 1 and 3 shall pay the
cost of Rs.5,000/- to appellant and bear its own costs.”
Respondent Nos. 1 to 3 in the said appeal are the appellants
herein. In the appeal filed by respondent No. 4 herein, the Education
Officer (Secondary), Zila Parishad, Nagpur was also impleaded as 4th
respondent. However, there is no specific direction to respondent No. 4 to
pay the aforesaid back wages.
On 02.06.2011, the appellants challenged the said order of
the School Tribunal in Writ Petition No. 2704/2011. During the course of
hearing of the writ petition, in view of the respondent No.4's retirement,
appellants settled the matter with respondent No. 4 and filed a Joint
Pursis dated 28.06.2011 based on out of court settlement and respondent No.
4. The said Joint Pursis, which was taken on record and petition disposed
of in terms thereof by the High Court, reads as under:
“JOINT PURSIS
The humble Petitioners and Respondent no. 1 most respectfully submit
as under:-
That the Petitioner Management agree to reinstate the Respondent
No.1/ appellant on the post of Assistant Teacher in compliance of the
judgment and order dated 28.4.2011 at Annexure P1 passed by the learned
School Tribunal, Nagpur w.e.f. 29.6.2011. The Respondent No. 1 is
satisfied with the judgment and order passed by the learned School
Tribunal, Nagpur and he will not challenge the same in future.
Hence, this pursis.
(M.B. Nikhade) (S.M. Padole)
Petitioners Respondent No. 1
Working President
The Educational Society, Tumsar
(V.T. Bhoskar) (A.Z. Jibhakate)
Counsel for Petitioner Counsel for Resp No.1”
It is clear from the above that even this agreement was arrived
at between the appellants and respondent No. 4 herein, to which the
Education Officer was not a party.
On 03.09.2011, the appellants reinstated respondent No. 4 and
forwarded the proposal of payment of back wages of respondent No. 4 to
respondent No. 3 herein i.e. Education Officer. Respondent No. 3 returned
the same vide letter dated 03.09.2011 with the remarks that management has
to pay the back wages. Since back wages have not been paid, on 03.10.2011
respondent No. 4 filed Criminal Complaint No.190 of 2011 in the Court of
Judicial Magistrate, First Class, Tumsar, which is still pending. The
appellants made representations to respondent No. 3 for payment of back
wages of respondent No. 4. However, respondent No. 3 refused to make
payment of back wages, but released the retirement benefits, pension etc.
in favour of respondent No. 4. At this stage, the appellants filed Writ
Petition No. 1014 of 2013 for direction to the respondents to pay back
wages of respondent No. 4. The same was permitted to be withdrawn vide
order dated 05.09.2013 to make further representation in accordance of
Government Resolution dated 14.03.1978.
The appellants made further representations which were also rejected by the
respondent-authorities. In these circumstances, the appellants again
approached the High Court by filing Writ Petition No. 5182/2014 which has
been dismissed by the impugned order dated 10.10.2014. The High Court has
dismissed the said writ petition, giving two fold reasons which are:
(a) The Education Tribunal had specifically directed the appellants to
pay the back wages to respondent No. 4. That order was challenged by the
appellants in the writ petition but the matter was compromised between the
appellants and respondent No. 4 whereby, again, it is the appellants who
agreed to pay the back wages. In view of these clear orders of the Court,
the liability could not be fastened on the Education Officer.
(b) The appellants had challenged the order of the Education Officer
refusing to pay the back wages by filing writ petition earlier which was
withdrawn without seeking any liberty to file a fresh petition. Therefore,
second petition on the same cause with same prayer was not permissible in
view of the judgment of this Court in Sarguja Transport Service v. State
Transport Appellate Tribunal, Gwalior and others[1].
It is in this backdrop that the issue formulated above has to be decided in
the present appeal.
Learned counsel for the appellants contended that the Government of
Maharashtra had passed Government Resolution dated 14.03.1978 which
prescribes that in case an employee of an aided school is terminated by the
Management, but his termination is subsequently set aside in appeal by the
competent authority, the Government would pay the back wages to the said
employee subject to the satisfaction of two conditions, namely, that no
other person has been appointed on the post during the intervening period
and payment of back wages would not result in additional financial burden
to the Government. On that basis, it is argued that the financial burden
is to be borne by the Government. He submitted that, no doubt, the
Tribunal specifically passed the order directing the appellant to pay the
salary. If general rule is applicable, this direction may not be of much
consequence inasmuch it is the appellant who is supposed to pay the back
wages to respondent No. 4 as the employer employee relationship is between
the appellant and respondent No. 4. The learned counsel argued that the
issue is as to whether appellant is entitled to recover this amount from
the Government on the ground that the Government is providing 100% aid.
The Government of Maharashtra had itself passed Resolution dated 14.03.1978
in this behalf particularly taking care of such situations. A reading of
this Resolution would show that the precise question which drew the
attention of the Government was as to whether an employee whose services
was terminated and who is reinstated by the Management in pursuance of the
final decision of the competent appellate authority of the Department could
be paid their arrears of salary and allowances by the Department itself.
After considering this problem, the Government decided to pay the same
which can be discerned from the reading of para 2 of the aforesaid
Resolution dated 14.03.1978. To quote:
“2. Government is pleased to direct as follows:-
A) Where the management of a non-Government Sec. School has reinstated the
employee in pursuance of the order of the Competent Appellate Authority of
the Department (issue on a representation/ appeal made by the aggrieved
employee or the management, as the case may be), if his past arrears of
salary and allowances, or any portion thereof, relating to the period from
the date of termination of his service (which was held to be wrongful by
the competent appellate authority of the Department) till the date of his
reinstatement have remained to be paid to him, these should be directly
paid by the Education Officer/Educational Inspector under the Scheme of
payment of salary and all allowances through Cooperative Banks' in all such
cases, no cut should be applied to the non-salary grant due to the school
if all the following conditions are fulfilled.
i) Salary and allowances of the substitute, if any, appointed by the
Management in place of the employee whose services were terminated, have
not been paid by the Department.
ii) That the payment of due arrears of salary and allowances of the
employee who has been reinstated would not involve any additional
expenditure to Government over and above the expenditure which would in any
case have been incurred on the salary etc. of the total teaching and non-
teaching staff admissible to the school on the basis of the total teaching
work-load and other norms prescribed in that behalf by the Government.”
It is further submitted that since the school run by the
appellants society is 100% aided institution, therefore, burden of back
wages of respondent No. 4, which is nothing but the salary for the
intervening period, should fall on the Government.
Learned counsel for the official respondents, on the other hand, submitted
that Government Resolution dated 14.03.1978 is no longer valid as
thereafter the Legislature enacted the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred
to as the 'Act') which became operational from 20.03.1978. He submitted
that since the position is governed by the provisions of the aforesaid Act,
which are statutory in nature, the aforesaid Government Resolution dated
14.03.1978 loses its force. He further submitted that in any case that
Government Resolution is applicable and merely because the school is 100%
aided institution would not make any difference on the facts of this case
wherein specific direction was given by the Tribunal to the appellant
society to make the payment of back wages after recording a finding that
the termination order was without jurisdiction.
We have considered the aforesaid submissions of the learned counsel for the
parties and have gone through the statutory provisions. It cannot be
denied that as per normal principle, whenever a terminated employee of an
aided school challenges the termination and termination is held to be
illegal by a competent judicial forum/Court and order is passed for payment
of back wages etc., the Government is supposed to bear the said burden.
The reason for the same is that such back wages or any other payment are in
the nature of salary for the intervening period or other compensation in
lieu thereof which is to be paid to the employee who would have earn these
benefits had he remained in service. In that eventuality, obviously, the
Government/Education Department would have paid those benefits in terms of
financial aid provided to such a school. However, if there is a specific
provision contained in any statute which contains contrary position, then
such provision would prevail upon the aforesaid general rule. Likewise, if
there is any administrative order which is contrary to the aforesaid
general rule, the said administrative order shall prevail as in that
situation, it would be treated that the aid is given subject to the
conditions contained in such administrative order.
Insofar as present case is concerned, we are of the opinion that it is not
necessary to go into the issue as to whether Government Resolution dated
14.03.1978 is no more valid or whether provisions of the Act or Rules are
contrary to the aforesaid Resolution and, therefore, would govern the
field. For the reasons recorded hereinafter, we find that the manner in
which action was taken by the appellants against respondent No. 4 and the
findings of the Tribunal thereupon, it is the appellants who are obligated
to pay the back wages to respondent No. 4. We find that in the peculiar
facts of the present case, the School Tribunal consciously put the burden
of paying back wages of respondent No. 4 upon the appellant school
authorities. It may be worth noting that an aided school is bound to
follow the dictat of the relevant provisions of applicable rules etc. for
conduct of Departmental enquiries and termination of services of an
employee present thereto. In the instant case, the concerned rules are
Maharashtra Employees Private School Rules, 1981 (hereinafter referred to
as the 'Rules') and the concerned provisions applicable were the Act, 1977
(which came into force from 20.03.1978, as noted above). The School
Tribunal while holding the termination to be illegal gave a specific
finding to the effect that appellant No. 2, who initiated the enquiry, was
not lawfully empowered to do so without the decision of the Enquiry
Committee being supported by the Managing Committee. Issues No. 1 and 2
framed in this behalf were specifically decided against the appellants. It
was further found that no Enquiry Committee as per the Rules was
constituted. The findings of the School Tribunal are also to the effect
that the mandatory provisions of law were not followed. It is, therefore,
a case where appellants acted without jurisdiction and without adhering to
the provisions of the Act and the Rules. Had the provisions of Rules been
followed, that would have initiated participation of the representatives of
the Government in the decision making process right from decision to
initiate the enquiry to the dismissal of respondent No. 4. This would have
led to a situation where the State Government/Education Officer would have
given its imprimatur to the entire proceedings including order of
termination of respondent No. 4. Had termination order been set aside
under such circumstances, it would have amounted to setting aside the order
of the Government making the Government responsible for payment of back
wages, as the act of termination, found ultimately illegal, would have been
with the blessings of the Government/Education Officer. However, in the
present case, what is found is that the State Government/Education Officer
had no role to play in passing the order of termination and the school
authorities acted without jurisdiction thereby transgressing their powers
to terminate. Specific findings to this effect are recorded by the School
Tribunal. For these reasons, even when Education Officer was impleaded as
a respondent in the appeal filed by respondent No. 4, the School Tribunal
consciously did not give any direction for payment of these back wages by
the Education Department.
For the aforesaid reasons, we are not inclined to interfere with the orders
passed by the High Court in the facts of the present case. The appeal is,
thus, devoid of any merit and accordingly dismissed.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ABHAY MANOHAR SAPRE)
NEW DELHI;
FEBRUARY 01, 2016.
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[1] AIR 1987 SC 88
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