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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos. 878, 359, 3186 & 3187 OF 2010.
..........
WRIT PETITION No. 878/2010.
Baburao son of Gomaji Dahat,
Aged about 67 years, Occupation
Retired teacher, resident of
42, Thaware Colony, New Subhedar Layout,
Nagpur. ....PETITIONER.
VERSUS
1. Jawahar Education Society,
through its Secretary, c/o. Jawahar
Night High School, Sitabuldi,
Nagpur.
2. Head Master,
Jawahar Nigh High School,
Sitabuldi, Nagpur - 12.
3. The Education Officer (Secondary)
Zilla Parishad, Nagpur. ....RESPONDENTS
.
..........
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WRIT PETITION No.359/2010.
Smt. Sulbha wife of Shri Prabhakar Hejib,
Aged about 65 years, Occupation
Retired teacher, resident of
'Suprabhat' Plot no.160,
Bajiprabhu Nagpur, Near Ramnagar,
Nagpur. ....PETITIONER.
VERSUS
1. Jawahar Education Society,
through its Secretary, c/o. Jawahar
Night High School, Sitabuldi,
Nagpur.
2. Head Master,\
Jawahar Nigh High School,
Sitabuldi, Nagpur-12.
3. The Education Officer (Secondary)
Zilla Parishad, Nagpur. ....RESPONDENTS
.
..........
WRIT PETITION No. 3186/2010.
1. Jawahar Education Society,
through its Secretary, c/o. Jawahar
Night High School, Sitabuldi, Nagpur.
2. Head Master,
Jawahar Nigh High School,
Sitabuldi, Nagpur - 12. ....PETITIONERS.
VERSUS
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1. Baburao son of Gomaji Dahat,
Aged about 67 years, Occupation
Retired teacher, resident of 42,
Thaware Colony, New Subhedar Layout,
Nagpur.
2. The Education Officer (Secondary)
Zilla Parishad, Nagpur. ....RESPONDENTS
.
..........
WRIT PETITION No. 3187/2010.
1. Jawahar Education Society,
through its Secretary, c/o. Jawahar
Night High School, Sitabuldi, Nagpur.
2. Head Master,
Jawahar Nigh High School,
Sitabuldi, Nagpur - 12. ....PETITIONERS.
VERSUS
1. Smt. Sulbha wife of Shri Prabhakar Hejib,
Aged about 65 years, Occupation
Retired teacher, resident of
'Suprabhat' Plot no.160,
Bajiprabhu Nagpur, Near Ramnagar,
Nagpur.
2. The Education Officer (Secondary)
Zilla Parishad, Nagpur. ....RESPONDENTS
.
-----------------------------------
Mr. A. Shelat, Advocate for Employees.
Mr. N.S. /R.N. Badhe, Advocate for Employer.
Learned A.G.P. for Education Officer.
------------------------------------
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CORAM : B.P. DHARMADHIKARI, J.
Date of reserving the Judgment. - 25.10.2010
Date of Pronouncement. - 15.11.2010
JUDGEMENT.
1.
Writ Petition No. 878 of 2010 is filed by Assistant Teacher – Baburao
assailing the judgment dated 30/9/2009 of School Tribunal, Nagpur in his
Appeal No. STN/349/1995 allowing it partially by granting him salary of one
year and he prays for direction to his Employer and Education Officer to pay
him back wages from 19/10/1995 till 31/7/2001 with all consequential
benefits. He was terminated on 19/10/1995 and has attained the age of
superannuation on 31/7/2001. Employer educational institution has filed Writ
Petition No. 3186/2010 for quashing very same judgment. In Writ Petition No.
359/2010 another Assistant Teacher – Mrs. Sudha has also assailed the
identical judgment dated 30/9/2009 of School Tribunal, Nagpur in her Appeal
No. STN/335/1995 allowing it partially by granting her salary of one year and
she prays for direction to same Employer and education officer to pay him back
wages from 19/10/1995 till 31/7/2002 with all consequential benefits. She
was also terminated on 19/10/1995 and has attained the age of
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superannuation on 31/7/2002. However as she worked with other school from
22/2/2001 to 31/7/2002, no relief is sought for this period. Employer
educational institution has filed WP 3187/2010 for quashing very same
judgment. Baburao joined the services on 1/9/1979 while Sudha joined on
11/8/1981 and both were terminated on 19/10/1995 alleging reduction in
number of sections in the employer Night School.
2.
I have heard Shri Shelat, learned Counsel for Employees, Shri
Badhe, learned Counsel for Employer and learned AGP for respective
Respondent No.3/2- Education Officer in all matters. The parties were heard
finally with consent by making Rule returnable forthwith in all 4 Petitions.
3. Dates of joining and termination and reason therefor are not in
dispute. Fact that termination orders are by Headmaster is also not disputed.
School Tribunal has found that due to long service in excess of 12 years, both
teachers had become confirmed and hence, Rule 26 of Maharashtra Employees
of private Schools (conditions of service) Rules,1981 (hereinafter referred to as
“the 1981 Rules” for short), obliged Employer to obtain previous permission of
Education Officer and 3 months notice was found not issued. If retrenchment
was to be done, junior most employee needed to be sent out and seniority was
not observed while terminating teachers who were Appellants before it
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resulting in violation of Rule 27. In case of Baburao, it noticed that though he
was working as full time Headmaster in day school, and therefore presumed to
be a part-time or temporary teacher, still Rule 28(1) required one month
advance notice. Findings reached by it in other Appeal are identical. As it
found that both teachers were not totally jobless but worked as regular teachers
in day school and earned regular salary, they were not entitled to back wages.
It therefore set aside termination of their services as violative of Rules 26,27
and 28(1) of 1981 Rules and granted them one year salary in lieu of back
wages. It turned down the contention of Employer that being a night school,
provisions of Maharashtra Employees of private Schools (conditions of service)
Act,1977 (herein after referred to as “the 1977 Act” for short) and the 1981
Rules framed thereunder were not applicable to it.
4. By inviting attention to 1981 Rules, particularly Rule 22 and 23,
Shri Shelat, learned Counsel contends that law enables teacher and other
employees in day school to work in night school also and here, there is no
dispute about this position. The Education Officer also recognized this position
and granted approval to both the Teachers. Headmaster in regular school can
become Headmaster in night school and is entitled to receive ½ of basic
prescribed for regular Headmaster. About the other staff or Assistant Teacher,
the Rules are silent. He has invited attention to Secondary School Code and to
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the 1977 Act read with the 1981 Rules to demonstrate that said provisions
recognize night school establishment and confer status of permanency upon its
employees. Part time recognition is due to availability of such work load but
then that is not temporary work as understood in the 1977 Act or the 1981
Rules. They equally enjoy the security of service and no discrimination on that
count is possible. According to him, merely because both teachers were
working in day school as regular employees, the denial of back wages is
arbitrary. In any case, according to him grant of salary of one year as
compensation therefor is unsustainable. He also points out that Mrs. Sudha was
not working in any day school and finding in this connection recorded by the
School Tribunal are perverse. Denial of back wages is thus based on erroneous
belief. He has relied upon the unreported judgment dated 1/10/2010 by
learned Single Judge of this Court at Bombay in Writ Petition No. 7905/2008–
Shri Shaikh Barkatullah Hussein vs. Muslim Education Committee, Sangli and
also in case of Vaidya Bharati P. Shah vs. The State of Maharashtra in Writ
Petition Nos. 2870/1986, 3085/1986 etc. dated 23/7/1990 of learned Single
Judge at Bombay reported at Maharashtra Education Cases i.e., MEC 2085.
5. Respective learned AGP has supported the approach of School
Tribunal by urging that back wages can not be granted just for asking. Both the
teachers were having regular full time jobs in the day schools and though
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terminated from night school, they were earning their livelihood. As night
school functions for 2.5 hours every day, the concept of permanency is alien to
it. Reliance is placed on judgment of learned Single Judge reported at 2007
(1) Mah.L.J. 544 – (Maratha Samaj Sewa Mandal, Solapur vs. Mrs. Rajani
Rajan Dixit) and others. Division Bench judgment reported at 2010 (5)
Mah.L.J. 364 – (Sunil Vilasrao Patil vs. Swami Vivekananda Shikshan Sanstha,
Kolhapur) is also cited. It is urged that public money can not be allowed to be
used in such a way.
6. Shri Badhe, learned Counsel for Employer has adopted the
arguments advanced by AGP and added that there was / is no permanent post
and hence, part timer can not claim reinstatement on any post as such.
Therefore he/she is not entitled to claim back wages also. He relies upon AIR
1986 SC 1455 – (G.K. Dudani and Others vs. S.D. Sharma and Others) to lay
stress on difference between temporary and permanent posts. His contention is
there can be no two permanent posts held by the Teachers simultaneously and
approach of the School Tribunal in the matter is contrary to service
jurisprudence. He has also urged that as workload was on part time basis and
sections were reduced, the School Tribunal should not have interfered in the
matter.
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7. It will first be appropriate to find out whether orders of School
Tribunal setting aside the termination of both the teachers call for any
interference in two petitions filed by Employer. Though the Petitions contain a
ground that the 1977 Act and the 1981 Rules do not apply to Night School,
Employer management could not point out why and how the negation of said
contention by School Tribunal is erroneous. Tribunal has found that night
school before it satisfied the requirements of Section 2 (21) of the 1977 Act
defining what is “Recognized” and also its Section 2 (24) which defines what is
“School”. I find that requirements of Section 2 (24) explaining what is meant
by a “Private School” is also satisfied in this matter. The Employer has not
brought on record any material to enable this Court to view the factual finding
in this regard differently. It is also not disputed that it is a Night School as
defined in Chapter I of Secondary Schools Code and has due recognition
thereunder. Rule 2(l) of 1981 Rules also expressly defines “Night School” on
same lines with minor changes not relevant here. Clause(i) of proviso to Rule
3(1) (b) of 1981 Rules stipulates that a person to be appointed as Headmaster
of night school shall not be the Head or Assistant Head of a School. In other
words an Assistant Teacher in a day school is eligible for consideration as
Headmaster of a night school. Rule 7(i) of 1981 Rules while stating that pay
scales of school employees shall be as given in Schedule “C” also covers night
schools within its fold. Similarly, in Schedule C in part VII, it prescribes pay
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scale for Headmaster of a night school with students up to 500 and above it
separately. It is one half of the basic prescribed for those posts in day school.
Rate per clock hour is prescribed for teachers with less than half workload of a
full-time teacher. Part-time teachers with half workload are eligible to receive
half the amount of pay as per their qualification. Note 4 of Rule 21 dealing with
workload states that night school teachers will have half the half the workload
specified for the full time teachers. Same arrangement is made in last “note”
thereto about non-teaching staff in night school. Rule 22 deals with duties and
code of conduct and its sub-rule (2)(g) shows that a full-time teacher can work
as part-timer after prior written permission of his school for about 2 hours.
Non-teaching staff can similarly work but for entire working period of the night
school. Rule 23(1)(b) regarding private tutions also permits day school
teachers working in night school to work for its full duration if they are not
undertaking private tutions. It is therefore evident that the 1977 Act and the
1981 Rules also govern and regulate night schools. These provisions are not
challenged by the Employer at all.
8. It therefore follows that provisions like Section 4 of 1977 Act
regarding terms and conditions of service of employees of private schools is
squarely attracted in present matters and teaching as also non-teaching staff in
night school enjoys same security of tenure and protections as are available to
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full-time staff of a day school. On facts, violation of said provisions noticed by
School Tribunal in its judgments are not even argued to be perverse. Tribunal
has therefore set aside the terminations of both Teachers as in breach of Rules
26, 27 and 28(1) of the 1981 Rules. The finding that said orders of termination
dated 19/10/1995 are unsustainable, therefore, deserves to be maintained.
9. Fact that Mrs. Sudha, Petitioner in Writ Petition No. 359/2010 was
not working anywhere else except the night school is not in dispute. None of
the Respondents have challenged the specific assertion made by her in
paragraph 21 of her petition. School Tribunal has refused back wages to her
only because of its finding that she was regular full time employee who earned
her salary regularly even after termination from night school. The said refusal
and application of mind therefore deserves to be quashed and set aside. She
was in employment only from 22/2/2001 till 31/7/2002 and hence, her
entitlement to wages from 19/10/1995 till 31/7/2002 by making adjustment
for this period needs to be adjudicated in this matter.
10. Grant of one year’s salary in lieu of back wages to both the Teachers
is now the issue to be considered. Connected question is whether this part-time
employment is temporary employment and whether it does not enable
incumbent to claim back wages. Judgment in case of G.K. Dudani and Others
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vs. S.D. Sharma and Others (supra) relied upon by the Employer needs
consideration here. The record there showed that there were thirty vacancies
in permanent posts and thirty-one vacancies in temporary additional posts.
These thirty-one posts were created initially for a period of one year but
renewed from year to year from 1960 onwards and have been in existence
continuously since then. These temporary additional posts were, therefore,
held not fortuitous posts created for the purpose of special tasks but formed an
integral part of the regular cadre, and appointments to those posts were also
made from the approved select list of Mamlatdars prepared in consultation with
the Gujarat Public Service Commission. Rule 9(8) of the Bombay Civil Service
Rules, 1959, defines “cadre” as meaning the strength of a service or a part of
service sanctioned as a separate unit”. Hon’ble Apex Court found the service of
Deputy Collectors admittedly a separate unit under the Revenue Department.
Cadre consisted of permanent posts and temporary posts added to the cadre
from time to time according to the exigencies of the service. The difference
between permanent and temporary posts was found brought out by the
definition of these expressions given in Rule 9. Under Rule 9(43), a permanent
post is a post carrying a definite rate of pay sanctioned without limit of time
and under Rule 9(56) a temporary post is a post carrying a definite rate of pay
sanctioned for a limited time. This judgment does not advance the cause of
Employer at all.
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11. The judgment also necessitates perusal of the 1977 Act and the 1981
Rules to find out what is meant by permanent and temporary. Rule 10 lays
down categories of employees. It recognizes them as permanent and non-
permanent. Non-permanent employees are stated to be either temporary or on
probation. Its sub-rule (2) states – “A temporary employee is one who is
appointed to a temporary vacancy for a fixed period.” Probationer, therefore is
not a temporary employee in sense as required in law i.e., the 1981 Rules.
Though appointment of probationer is for fixed period still vacancy occupied by
him is permanent and not a temporary one. Similarly, when a full-time teacher
in day school proceeds on long leave, his permanent workload is required to be
entrusted to another full-time teacher during his absence. Thus though the
available workload is full-time, still the vacancy is in leave period i.e.,
temporary vacancy. Appointment as full-time teacher against such temporary
vacancy is for fixed period of leave. Such substitute full-timer is therefore not
permanent employee but a temporary one under scheme of the 1981 Rules.
Thus understood, nature of appointment (either as permanent or temporary)
has got no bearing on type of workload available i.e., full-time or part-time.
Classification of workload in night school is essentially due to normal working
hours of a day viz. regular school. It has no co-relation with nature of
establishment. Establishment of Night School here is permanent establishment
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and not recognized for temporary period. Night School functions for 2.5 hours
permanently and recognition to it is of permanent nature. 2.5 hours work is full
time workload for any night school. It is ½ of the average or normal working
hours of a regular day schools governed by the 1977 Act and the 1981 Rules.
Only because it functions for half the time as compared to day school, for its
regulation and service conditions, it is compared with part-time service.
Concept of part-time work is applied because provisions in Rules mostly deal
with full-time work in day school. It can not by itself be relevant in permanent
establishment which itself is functioning for maximum possible hours. There
may be several part-time jobs available permanently in establishment
functioning for full time. It is therefore wrong to construe such part-time work
as temporary at least in the face of Rule 10(2) above.
12. Reliance by AGP on Maratha Samaj Sewa Mandal, Solapur vs. Mrs.
Rajani Rajan Dixit (supra) and others states that teachers in night school can
not be declared as full-time teachers. Challenge there was to judgment of
school tribunal declaring appellant before it to be full-time teacher. It is obvious
that school tribunal can not give direction contrary to express scheme of the
1981 Rules which equate or recognize them as part-time. Division Bench
judgment reported at Sunil Vilasrao Patil vs. Swami Vivekananda Shikshan
Sanstha, Kolhapur (supra) dismisses demand of night school teachers for
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absorption as full-time teachers. The employer management there appears to be
running a day school and some teachers in night school were given
appointment in that day school. Petitioners were therefore claiming parity in
treatment and also relied upon some government recommendations in their
favour. Division Bench noticed absence of provision in the 1977 Act or in
Secondary School Code enabling such absorption. But then in view of
government resolutions recommending such absorption and previous conduct
of employer, Division Bench hoped that employer would act fairly in the matter
and treat petitioners before it similarly. These judgments are therefore not on
the controversy raised before me and are not relevant. Also Vaidya Bharati P.
Shah vs. The State of Maharashtra (supra) in Writ Petition Nos. 2870/1986,
3085/1986 etc. dated 23/7/1990 of learned Single Judge at Bombay reported
at Maharashtra Education Cases i.e., MEC 2085 (supra) considers total length
of service put in by temporaries and recognizes it as permanent. The
consideration is in the light of legal provisions as also Constitution of India, and
here Employer has not come with case that appointment of Teachers before this
Court was temporary in nature. Effort is to urge that part-time status itself
demonstrates such temporary nature. The relevant legal scheme is already
looked into and commented upon above.
13. Unreported judgment dated 1/10/2010 by learned Single Judge of
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this Court at Bombay in Writ Petition No. 7905/2008– Shri Shaikh Barkatullah
Hussein vs. Muslim Education Committee, Sangli (supra) does not deal with
night school. There the vacancy was for Marathi subject for a part-time teacher
in Urdu medium school. School tribunal dismissed his appeal by treating him as
part-time employee and upheld his termination by one month notice. This
Court allowed the writ petition and set aside the order of termination by
holding that a part-time teacher is not always a temporary teacher. Discussion
undertaken there in paragraphs 6 and 7 show absence of any co-relation
between nature of appointment and availability of type of workload. This
judgment helps the teachers before this Court and is sufficient to reject the
stance of Employer in Writ Petition Nos. 3186 and 3187 of 2010. Reference can
also be made to G.K. Dudani and Others vs. S.D. Sharma and Others (supra) as
it also accepts the position that work being done for sufficiently long time can
not be treated as temporary in the light of rules considered there by Hon’ble
Apex Court. Rule 10 of the 1981 Rules here is little stringent for Employer than
those rules. There the temporary appointment was possible even against
permanently available work load viz. permanent vacancy. Here, legally, under
1981 Rules, appointment can be viewed as temporary not only when it is
against a temporary vacancy but it also has to be for fixed duration. Thus
workload needs to be available for temporary period only. Employer before
this Court has not pointed out any temporary vacancy as also fixed period
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appointment of these Teachers. There is absolutely no pleading in this regard
on record. Needless to mention that position prevailing in year 1979 or 1981
ought to have been placed on record before urging that these two teachers
were temporary employees. Facts show that both teachers before me are
working for full 2.5 hours duration of Night School and hence, can not be
regarded as temporaries. Both of them are permanent teachers in a permanent
establishment recognized as part-time employment and establishment for its
regulation qua the 1981 Rules.
14. This brings me to the issue of back wages in both matters i.e., Writ
Petition Nos. 878 and 359 of 2010. Hon’ble Apex Court has in Reetu Marbles
v. Prabhakant Shukla,(2010) 2 SCC 70, after considering almost all leading
precedents. (2009) 5 SCC 705 : (2009) 2 SCC (LandS) 134, P.V.K. Distillery
Ltd. v. Mahendra Ram, (2007) 5 SCC 742 : (2007) 2 SCC (LandS) 255, HUDA
v. Om Pal, (2006) 9 SCC 434 : 2006 SCC (LandS) 1830, Haryana State
Electronics Development Corpn. Ltd. v. Mamni, .(2006) 1 SCC 479 : 2006 SCC
(LandS) 250, U.P.
State
Brassware Corpn. Ltd. v. Uday Narain Pandey ,
(2002) 6 SCC 41 : 2002 SCC (LandS) 818, Hindustan Motors Ltd. v. Tapan
Kumar Bhattacharya, (1979) 2 SCC 80 : 1979 SCC (LandS) 53, Hindustan Tin
Works (P) Ltd. v. Employees, (1978) 1 SCC 154 : 1978 SCC (LandS) 31,
Western India Match Co. Ltd. v. Third Industrial Tribunal and 1891 AC 173 :
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(1886-90) All ER Rep 651 (HL), Susannah Sharp v. Wakefield on this subject,
mentions that payment of full back wages upon an order of termination being
declared illegal cannot be granted mechanically. It does not automatically
follow that reinstatement must be accompanied by payment of full back wages
even for the period when the workman remained out of service and contributed
little or nothing to the industry. Grant of that relief would depend on the fact
situation obtaining in each case. It will depend upon several factors, one of
which would be as to whether the recruitment was effected in terms of the
statutory provisions operating in the field, if any. It is held that the tribunals
and the courts have to be realistic albeit the ordinary rule of full back wages on
reinstatement. Hon’ble Apex Court then examined the factual situation in the
case before it. The services of the respondent were found terminated on
11.6.1987. The Labour Court gave its award on 27.9.2002 after a gap of more
than 15 years. The Labour Court upon examination of the entire issue had
concluded that the respondent would not be entitled to any back wages for the
period he did not work. Perusal of its award also revealed that the respondent
did not place on the record of the Labour Court any material or evidence to
show that he was not gainfully employed during the long spell of 15 years
when he was out of service of the appellant. Hon’ble Apex Court noticed that
the High Court without examining the factual situation, and placing reliance on
the judgment in Hindustan Tin Works (P) Ltd. v. Employees (supra) held that
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the normal rule of full back wages ought to be followed in this case. It is held
that such a conclusion could have been reached by the High Court only after
recording cogent reasons in support thereof, especially since the award of the
Labour Court was being modified. The Labour Court exercising its discretionary
jurisdiction concluded that it was not a fit case for the grant of back wages.
Hon. Apex Court pointed out its earlier observations in P.V.K. Distillery Ltd. to
the effect :– “15. The issue as raised in the matter of back wages has been dealt
with by the Labour Court in the manner as above having regard to the facts and
circumstances of the matter in the issue, upon exercise of its discretion and obviously
in a manner which cannot but be judicious in nature. There exists an obligation on
the part of the High Court to record in the judgment, the reasoning before however
denouncing a judgment of an inferior tribunal, in the absence of which, the
judgment in our view cannot stand the scrutiny of otherwise being reasonable.”.
Hon’ble Court then held that the High Court was unjustified in awarding full
back wages. It also opined that the Labour Court having found the termination
to be illegal was unjustified in not granting any back wages at all. Keeping in
view the facts and circumstances ,it directed that the employer to pay 50% of
the back wages from the date of termination of service till reinstatement.
15. It is already found that reasons for not awarding back wages to Mrs.
Sudha are perverse. She was never in gainful employment after her illegal
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termination except for brief period from 22/2/2001 to 31/7/2002 i.e., her
superannuation. Other teacher Shri Baburao also superannuated on
31/7/2001. He was however a full-time permanent teacher in a day school and
did not earn anything from his second job i.e., service in Night School. Perusal
of their Appeal memos and Writ Petition of Baburao does not show any
specific assertion about absence of source of income or then efforts made to
secure it. Second employment, though not legally prohibited, can be a relevant
circumstance. Period from 19/10/1995 till 31/7/2001 is of about 6 years and
thus by getting one years salary, teacher Baburao is indirectly getting amount
equal to about 16.6% of back wages. He has not brought on record
circumstances constraining him to work in night school and to show that
despite efforts, he could not get other source to augment his income. Bald
assertion in paragraph 23 of his Writ Petition is as his termination was held
illegal, School Tribunal ought to have given him full back wages. Hon’ble Apex
Court in Reetu Marbles v. Prabhakant Shukla in labour matter granted 50%
back wages in absence of any material by workman to sustain his claim to back
wages. Here, there is absence of such material and that too not by a poor
labour but by a teacher who already had full time regular job. It can not be said
that School Tribunal has committed any jurisdictional error as it has looked
into relevant facts and then reached its conclusion. There is nothing here to
enable this Court to interfere as far as this aspect is considered. I therefore do
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not find anything wrong with this use of its discretion under Section 11 of the
1977 Act by the School Tribunal.
16. By same logic, Petitioner Mrs. Sudha is getting amount equal to
14.3% of the full back wages- i.e., even less than Baburao. But then, reason
given to deny her back wages is incorrect and hence, entire application of mind
in relation to it stands vitiated. Though absence of gainful employment is not
expressly averred before the School Tribunal, in her Writ Petition, she has
stated that except for brief period from 22/2/2001 till 31/7/2002, she had no
source of income. School Tribunal granted interim direction to maintain status
quo on 20/11/1995 and she was not allowed to join duties on 21/11/1995
when she reported. Headmaster then wrote to her to join on 5/7/2000 and
again she was not permitted to join. School Tribunal directed the Education
Officer to absorb her, but that direction was not implemented. School Tribunal
had by separate judgments delivered on 9/2/2009 partly allowed both these
Appeals and directed Employer to pay 3 months salary with costs of Rs. 500/-
towards Appeal. Their claim for reinstatement with back wages was rejected
but the Education Officer was directed to take their names on waiting list for
absorption in other night schools as per Rule 26 of the 1981 Rules. Said
judgments were set aside by this Court by a common judgment dated 9/2/2009
in Writ Petition No. 2202/1999 and Writ Petition No. 2203/1999. Hence, in
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case of Mrs. Sudha sufficient facts are on record to show that she had no source
of income. I, therefore, find her entitled to relief of full back wages. The
impugned judgment of School Tribunal stands modified to that extent in her
matter.
17. But both these teachers are entitled to grant of continuity so that
wages last received by them on their respective dates of superannuation and
service till then can be looked into for computation of any retirement or
terminal benefits or other similar purposes, if due and payable as per their
service conditions. The impugned judgments stand modified to that extent in
both matters. I also find that this is second round of litigation and they need to
be compensated even for delay by awarding them some interest and by making
some provision to coerce their Employer and Education Officer to expedite the
recovery.
18. Accordingly as a result of above discussion:–
(a) Writ Petition Nos. 3186 and 3187 of 2010 stand
dismissed. Rule is discharged in those matters with no
orders as to costs.
(b) Writ Petition No. 878/2010 filed by Baburao is partly
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allowed. Judgment dated 30/9/2009 of School Tribunal,
Nagpur in his Appeal STN/349/1995 is modified with
direction to all Respondents to treat him as in continuous
employment till 31/7/2001.
(c ) Writ Petition No. 359/2010 filed by Mrs. Sudha is partly
allowed. Judgment dated 30/9/2009 of School Tribunal,
Nagpur in her Appeal STN/335/1995 is modified with
direction to all Respondents to treat her as in continuous
employment till 31/7/2001. Employer is also directed to
pay her back wages from 19/10/1995 till 31/7/2002
except for the period from 22/2/2001 till 31/7/2002.
(d) If Employer fails to pay the above amounts to the
respective teacher within period of three months from
today, the Education Officer shall deduct it from the non-
salary grants due and not paid or payable to Employer
and make it over to concerned teachers within further
period of one month thereafter. This however does not
preclude the two Teachers viz. Baburao and Sudha to
take recourse to any other mode of recovery in addition.
The Education Officer shall not withhold or stop
recovery by him as per above directions only because
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these teachers have resorted to some other mode of
recovery.
(e) If the Employer Management does not pay the amounts
within time stipulated above, it shall pay interest at 8%
P.A. on amount due till its realization. If the Education
Officer does not initiate action for recovery as directed
above, he shall pay 2% interest more on amount of non-
salary grants which could have been appropriated
towards discharge of said liability. In the later
contingency, teacher/s shall be entitled to 8% interest
from Employer and 2% interest from Education Officer
on such amount of grant.
(f) Judgments of School Tribunal impugned herein stand
modified to that extent and both Writ Petitions are
allowed accordingly with no order as to costs. Rule is
made absolute in above terms in Writ Petition Nos. 878
and 359 of 2010.
JUDGE.
Dragon.
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