PETITIONER:
KAYASTHA PATHSHALA, ALLAHABAD ANDANR. ETC. ETC.
Vs.
RESPONDENT:
RAJENDRA PRASAD AND ANR.
DATE OF JUDGMENT08/12/1989
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
AHMADI, A.M. (J)
CITATION:
1990 AIR 415 1989 SCR Supl. (2) 450
1989 SCC Supl. (2) 732 JT 1989 Supl. 381
1989 SCALE (2)1394
ACT:
Labour & Services: Educational institution registered
under the Societies Registration Act--Reinstatement of
dismissed official by Court--Consideration to be taken into
account--Contract for personal service--Whether enforceable.
HEADNOTE:
The respondent was appointed on 15.7.1962 as a Chemistry
lecturer in Kulohaskar Ashram Agriculture Intermediate
College run by the appellant society. By a communication
dated 20.6.1963, he was informed by the management that his
services were no longer required after 15.7.1963. He filed a
civil suit for permanent injunction restraining the manage-
ment from proceeding with the proposed action. But the
management having withdrawn the letter, he withdrew the suit
as having become infructuous. However on 28.8.1964, the
respondent was placed under suspension whereupon he again
filed a civil suit for a declaration that the order of
suspension was illegal. The trial court dismissed the suit
but the first appellate court allowed the appeal and decreed
the suit as prayed for. On appeal the High Court affirmed
that decision, on 9.4.69. During the pendency of the appeal
before the High Court, the management-appellant had passed a
fresh order suspending the respondent pending enquiry on
certain allegations. The respondent again filed a civil suit
to challenge the competency of the managing committee to
take action against him. In the said suit he also pleaded
that the prior approval of the District Inspector of Schools
having not been taken, the order placing him under suspen-
sion was bad. The Munsiff Court accepted the suit and de-
clared the suspension order as illegal and void. The first
appellate court reversed that order and the respondent
preferred second appeal to the High Court.
During the pendency of the respondent's second appeal,
U.P. Secondary Educational Laws (Amendment) Act, 1976 came
into force from 18.8.76 which inter alia provided that prior
approval of the District Inspector of School was necessary
before any action could be taken against teaching staff of a
college. The respondent sought to amend the pleadings of
second appeal in consonance with the Act but
451
the High Court declined but he succeeded on this question
before this Court.
Contemporaneously with the litigation set out above, the
respondent filed a suit for recovery of arrears of salary,
past pendente lite and future. It was claimed for the period
between 21.2.1964 and 20.2.1967. The trial court decreed the
suit for Rs.7812/92 p. being the arrears of salary for the
period of three years. The management appealed to the Dis-
trict Court and the respondent filed cross-objection. As
stated earlier, the second appeal preferred by the respond-
ent was pending in the High Court. Hence the parties moved
the High Court for withdrawing the appeal pending before the
District Court for being disposed of alongwith the second
appeal No. 2038/1970, which request was accepted and the
said appeal came to be registered as First Appeal No. 460 of
1982. The High Court disposed of both the appeals by a
common judgment whereby the second appeal was dismissed and
the finding as to the validity of the suspension order was
confirmed. However the First Appeal was allowed and the
decree of the trial court was reversed and a suit for ar-
rears of salary filed by the respondent was dismissed. The
respondent appealed to this Court and his appeal was allowed
and his claim to salary between 20.2.1964 to 15.1.1966 was
settled at Rs. 10,000 and the court further held that the
order of suspension ceased to be operative w.e.f.
17.10.1975.
Thereafter the respondent on May 18, 1986 moved the High
Court under Article 227 of the Constitution for a writ of
Mandamus against the State of U.P. and the management of the
College for his reinstatement in service and for payment of
entire arrears of salary. The High Court accepted the writ
petition and granted him the relief asked for. Hence these
appeals by the Management of the school and the State of
U.P.
Allowing the appeals, this Court,
HELD: Indeed, the reinstatement would be an unwise move
from any point of view. In educational institutions, the
Court cannot focus only on the individual. The Court must
have regard to varying circumstances in the academic atmos-
phere and radically changed position of the individual
sought to be reinstated. The court must have regard to
interests of students as well as the institution. [459E]
In the instant case, during the gap of twenty-five
years, the respondent must have clearly lost touch with
Chemistry as well as the
452
art of teaching. It must have been also deeply buried and
disintegrated under the new acquisition of his legal knowl-
edge. Reinstatement of such a person seems to be unjustified
and uncalled for. [459G]
Legal profession may not be considered as an employment
but the income from profession or avocation if not negligi-
ble, cannot be ignored while determining damages or back
wages for payment. [463G]
In a case like this. the Government cannot be saddled
with the liability to make payment. There is no relationship
of master and servant between Government and respondent and
such relationship existed only between the management and
respondent. So far as statutory liability to pay salary to
teacher is concerned, the Government has been paying salary
to Dr. Gopendra Kumar who has since been appointed as Lec-
turer in the place of the respondent. Therefore, the manage-
ment alone should pay the amount ordered. [464D-E]
Vaish Degree College v. Lakshmi Narain, [1976] 2 SCC 68;
G.R. Tiwari v. District Board, Agra and Anr., [1964] 3 SCR
55, 59; The Executive Committee of U.P. Warehousing Corpo-
ration Ltd. v. Chandra Kiran Tyagi, [1970] 2 SCR 250, 265;
Bank of Baroda v. Jewan Lal Mehrotra, [1970] 3 SCC 677 and
Sirsi Municipality v. Kom Francis, [1973] 3 SCR 348; Smt. J.
Tiwari v. Smt. Jawala Devi Vidya Mandir & Ors., [1979] 4 SCC
150; Deepak Kumar Biswas v. The Director of Public Instruc-
tions, [1979] 4 SCC 160; Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvaran Jayanti Mahotsav Samarak Trust & Ors.
v.V.R. Rudani & Ors., [1989] 2 SCC 691 at 697; TrilokChand
Modichand & Ors. v. H.B. Munshi & Anr., [1969] 2 SCR 824;
Maimoona Khatun & Anr. v. State of U. P. & Anr., [1980] 3
SCR 676; Managing Director U.P. Warehousing Corporation &
Anr. v. Vinay Narain Vajpayee, [1980] 2 SCR 773; Maharaja
Sayajirao University of Baroda & Ors. v. R.S. Thakur, AIR
1968 SC 2112 and S.M. Saiyad v. Baroda Municipal Corpora-
tion, [1984] Supp. SCC 378, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 917 of
1989 etc.
From the Judgment and Order dated 15.12.1988 of the
Allahabad High Court in C.M.W.P. No. 10059 of 1987.
Yogeshwar Prasad, Satish Chandra, Mrs. S. Dixit and
Mukul Mudgal for the Appellants.
453
A.K. Srivastava for the Respondents.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. This is the third time the
matter is coming before this Court and we hope that this is
the last of a series of litigations between the parties.
We have been helpfully provided with a chronology of the
events leading up to this appeal. It is important that the
chronology is made clear. It is as follows:
At Allahabad, there is a private college called “Kulb-
haskar Ashram Agriculture Intermediate College”. It is run
by the “Kayastha Pathshala” which is a society registered
under the Societies Registration Act. Rajendra Prasad, the
common respondent in the appeals, was a Chemistry lecturer
in that College. He was appointed on 15 July 1962 in the
scale of Rs. 175-10-2 15. On 20 June 1963, the management
wrote to him stating that his services would not be required
after 15 July’ 1963. It was indeed a termination letter. The
respondent moved the Civil Court with suit No. 422/1963 for
permanent injunction restraining the management from inter-
fering with his teaching work. The management resisted the
suit inter alia, contending that the respondent was appoint-
ed only for one year. He was removed after the period of
probation since his work was found to be unsatisfactory. It
was also contended that no injunction could be granted for
enforcement of the contract of personal service and the suit
was not maintainable. On 20 May 1964, the Trial Court dis-
missed the suit as not maintainable. It was also held that
the suit had become infructuous since the management had
withdrawn the impugned communication.
It seems that the management had withdrawn its earlier
communication only to make another order. On 28 August 1964,
the respondent was placed under suspension and he again
approached the Civil Court for relief. He instituted suit
No. 198 of 1964 in the Munsif Court seeking a declaration
that the order of suspension was illegal. The trial court
dismissed the suit, but the appeal therefrom, F.A. No.
583/1965, was allowed by the First Additional Civil Judge,
Allahabad decreeing the suit as prayed for. That decision
was affirmed by the High Court in Second Appeal No. 1111 of
1966. The High Court rendered the judgment on 9 April 1968.
Before the disposal of the appeal by the High Court, the
manage-
454
ment made a fresh order suspending the respondent pending
enquiry on certain allegations- That order was issued on 30
December 1965/7 January 1966. This order was also the sub-
ject matter of a suit. The respondent filed Civil Suit No.
48 of 1966 in the Munsif Court at Allahabad challenging the
competency of the managing committee to take action against
him. He also contended that the prior approval of District
Inspector of Schools (DIOS) was not taken for placing him
under suspension- The Munsif Court accepted the suit and
declared that the suspension order was illegal and void. But
the management successfully took up the matter of Civil
Appeal No. 117 of 1969 before the Additional Civil Judge.
The appeal was allowed reversing the trial court decree and
upholding the respondent’s suspension. The respondent pre-
ferred second appeal to the High Court and it was numbered
as S.A. No. 2038 of 1970. We may stop here for a moment and
refer to some other events.
During the pendency of the said second appeal in the
High Court, the U.P. Secondary Education Laws (Amendment)
Act, 1976, was brought into force with effect from 18 August
1976. The provisions thereunder required the management of
the college to take prior approval of DIDS for taking any
action against teaching staff. The respondent took advantage
of those provisions and made an application for amendment of
his plaint to incorporate additional paragraphs 13-A and
14(g). In the additional paragraphs, he challenged the
validity of the suspension order since management did not
take prior permission of the DIOS. It was alleged that the
suspension order became invalid and inoperative on the
expiry of 60 days from the date of service.
The State of Uttar Pradesh was not a party to the
original suit. For the first time, on 31 October 1980 the
respondent made an application for impleading the State of
U.P. and DIOS as supplemental respondents to the appeal.
Their impleading was perhaps necessitated in view of the
liability of the State Government to pay salaries to teach-
ers under the U.P. High School and Intermediate College
(Payment of Salaries of Teachers and Other employees) Act,
1971. Section 10(1) of the Act provides that the State
Government shall be liable to payment of salaries of teach-
ers and employees of every institution due in respect of any
period after March 31, 1971.
The High Court did not consider it necessary to allow
the said amendment of the plaint. But the respondent suc-
ceeded in this Court. By order dated 20 April 1980 the Court
allowed his appeal and
455
directed the High Court to allow the amendment. The second
appeal No. 2038 of 1970 thus fell for consideration in the
light of fresh points raised in the amplified plaint.
Next, as to proximity, there is one other related liti-
gation between the same parties. It is now necessary to
refer to it. The respondent filed a suit for recovery of
arrears of salary past, pendente lite and future. It was
claimed for the period between 21 February 1964 and 20
February 1967. That suit was filed in 1968 and registered as
Civil suit No. 53 of 1968. On 31 July 1969, the trial court
decreed the suit for Rs.7812.92 being the arrears of salary
for the period of three years. The management of the college
appealed to the District Court in Civil Appeal No. 268 of
1969. The respondent filed a cross objection to the extent
of the relief denied to him. The second appeal no. 2038 of
1970 was then pending in the High Court. It seems that the
parties moved the High Court for withdrawal of C.A. No. 268
of 1969 from the District Court for being disposed of along
with the second appeal No. 2038 of 1970. That request was
allowed and the said appeal was withdrawn. It was renumbered
by the High Court as First Appeal No. 450 of 1982.
The High Court disposed of both the said appeals by
common judgment dated 22 October 1982. The second appeal No.
2038 of 1970 was dismissed confirming the finding of the
Additional Civil Judge as to the validity of the suspension
order. The first appeal No. 450 of 1982 was allowed revers-
ing the decree of the trial court and dismissing the re-
spondent’s suit for arrears of salary. His claim for pen-
dente lite salary also vanished along with that.
The respondent stopped into this Court for the second
time. Being aggrieved by the decision of the High Court, he
appealed to this Court in C.A. No. 5891 of 1983. The appeal
was allowed by a brief order dated 25 September 1986 which
has since been reported in AIR 1987 SC 1644. For immediate
reference we may set out the same hereunder:
“The High Court in the judgment recorded the
following findings:
“The result is, as noticed above, that al-
though it cannot be said that the order dated
30 December 1965/7 January 1966 suspending the
plaintiff from service of the defendant col-
lege was illegal or null and void inoperative
against the
456
plaintiff from its inception, it did cease to
be operative with effect from 17 October 1975
on the expiry of 60 days from the commencement
of the U.P. Secondary Education Laws (Amend-
ment) Act, 1975.
Having recorded this finding, the
High Court refused to exercise its discretion
to grant a declaration that the order of
suspension ceased to be operative with effect
from 17 October 1975. We think that the High
Court was wrong in refusing to grant the
declaration. We, therefore, declare that the
order of suspension ceased to be operative
with effect from 17 October 1975. The appeal
against the judgment of the High Court in
second appeal No. 2038 of 1970 is disposed of
accordingly.
In the appeal against the judgment
of the High Court in First Appeal No. 450 of
1982 we do not see how the appellant can be
denied his salary for the period between 20
February 1964 to 15 January 1966, the date on
which the effective order of suspension was
communicated to him. Instead of sending the
case back to the trial court for determining
the amount, we think that a decree may
straight away be passed for a sum of Rs.
10,000 which will include salary for the
period, interest up to date and costs.”
With due apologies for this lengthy introduction, we
then come to the proceeding out of which the present appeals
arise. On 18 May 1986 the respondent moved the High Court
under Article 226 of the Constitution seeking a writ of
Mandamus against the State of U.P. and management of the
college for his reinstatement in service with payment of
entire arrears of salary. He rested his case on the afore-
said decision. This High Court accepted the writ petition
and gave him all the reliefs asked for.
As to the validity of suspension order, the High Court
remarked:
“The order of suspension being illegal was
correctly set aside by the Supreme Court after
the enforcement of U.P. Secondary Education
Laws (Amendment) Act, 1975 as none of the
conditions mentioned in sub-section (5) of
Section 16-G of the Act were fulfilled as no
charges were framed against the petitioner,
nor any charge sheet was served on
him ………….. The petitioner, there-
fore,
457
could not have been suspended and the order of
suspension, in our view, was void ab initio.
Under law there was no provision to keep the
petitioner under suspension for more than 21
years without enquiry being held and without
any charge sheet being submitted. The peti-
tioner has a legal right to continue in serv-
ice and we direct him to be reinstated forth-
with.”
As regards the arrears of salary, the High Court observed:
“Once the order of suspension ceased to
be operative and was ab initio void from its
very inception, the petitioner shall be deemed
to be in continuous service. That application
of the petitioner was sent to State of U.P.
through the Education Secretary and also the
District Inspector of Schools. The District
Inspector of Schools has already sent a letter
dated 7.1. 1987 (Annx. 28) to the Manager,
Kulbhaskar Ashram Agriculture Intermediate
College, Allahabad about the payment of ar-
rears of salary to the petitioner. But the
Manager and the State of U.P. do not seem to
be interested in making payment of arrears of
salary to the petitioner. We are accordingly
of the opinion that the petitioner has made
out a case for issuance of a writ of mandamus
directing the State of U.P. and the District
Inspector of Schools, Allahabad to make pay-
ment of arrears of salary to the petitioner in
view of Section 10 and prior to that date the
arrears of pay and other emoluments would be
payable by the institution. In case the insti-
tution fails to make payment the procedure
under Section 11 of the Payment of Salaries
Act may be adopted.”
Finally, the High Court issued the following directions:
“In view of the premises aforesaid, the
present petition succeeds and is allowed
Respondents Nos. 1 and 2 the State of Uttar
Pradesh and the District Inspector of Schools,
Allahabad are directed to make payment of
salary to the petitioner since 16.1.1966 till
date, forthwith including D.A. and other
emoluments admissible under law, of course,
after deducting the amount, if any, paid to
him as subsistence allowance during the period
of his suspension. We further add that the
petitioner shall be reinstated forthwith and
shall be paid his salary regularly in accord-
ance
458
with the provisions of Section 3 of the Pay-
ment of Salaries Act, 1971.”
Challenging the judgment of the High Court, the
management as well as State Government by obtaining leave
have now appealed. This how the matter is coming before the
Court for the third time.
The first question for consideration is whether the High
Court was justified in directing reinstatement of the re-
spondent? There is a long established rule of Courts that
service contract cannot be specifically enforced. There are,
however, three exceptions which have been adverted to in
very many cases. In Vaish Degree College v. Lakshmi Narain,
[1976] 2 SCC 68 at 71 after examining a large v. number of
authorities like: S.R. Tiwari v. District Board, Agra and
Anr., [1964] 3 SCR 55, 59: The Executive Committee of U.P.
Warehousing Corpora,on Ltd v. Chandra Kiran Tyagi, [1970] 3
SCR 250, 265: Bank of Baroda v. Jewan Lal Mehrotra, [1970] 3
SCC 677 and Sirsi Municipality v. Kom Francis, [1973] 3 SCR
348 the Court rounded off the conclusion:
“On consideration of the authorities mentioned
above, it is, therefore, clear that a contract
of personal service cannot ordinarily be
specifically enforced and a court normally
would not give a declaration that the contract
subsists and the employee, even after having
been removed from service can be deemed to be
in service against the will and consent of the
employer. This rule, however, is subject to
three well recognised exceptions: (i) where a
public servant is sought to be removed from
service in contravention of the provisions of
Article 311 of the Constitution of India; (ii)
where a worker is sought to be reinstated on
being dismissed under the Industrial Law; and
(iii) where a statutory body acts in breach or
violation of the mandatory provisions of the
Statute.
This decision has been affirmed in Smt. J. Tiwari v.
Smt. Jawala Devi Vidya Mandir and Ors., [1979] 4 SCC 160 and
reiterated in Deepak Kumar Biswas v. The Director of Public
Instructions, [1979] 4 SCC 160 and adverted to in Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvaran Jayanti Mahotsav
Samarak Trust and Ors. v. V.R. Rudani and Ors., [1989] 2 SCC
691 at 697. These authorities say that a college owned by a
private body, though recognised by or affiliated to a Statu-
tory University will not become a statutory body
459
since not enacted by or under a statute. And the dismissed
employee of such institution cannot get specific performance
of service contract:
The submission for the respondent, however, was that the
present case stands on a different footing since there was
no repudiation of the respondent’s contract of service. The
contract of service, according to him is still subsisting
and it was, therefore, not inappropriate for the High Court
to put the respondent back into service. But counsel for the
appellants added that the respondent himself has abandoned
his post after he was suspended and there was therefore no
need to terminate his service. The declaration made by the
respondent when he enrolled himself as an advocate in 1968
stating that he was not employed nor engaged in any business
or profession was relied upon to support the submission. It
is said that the law required that the respondent at the
time enrolment must have given particulars of his employment
or of his business or trade it he had one. He must have also
produced a character certificate from the employer and
proved as to how the employment came to an end. Since he did
not furnish any such particulars counsel urged that it was a
clear case of abandonment of service and no specific order
of termination was necessary.
Much could be said on both the contentions, but we
refrain from expressing any opinion since this is not a
proper case for reinstatement. Indeed, the reinstatement
would be an unwise move from any point of view. In educa-
tional institutions, the Court cannot focus only on the
individual forgetting all else. The Court must have regard
to varying circumstances in the academic atmosphere and
radically changed position of the individual sought to be
reinstated. The Court must have regard to interests of
students as well as the institution. It is not unimportant
to note that the respondent was out of teaching for over 25
years. He seems to have taught Chemistry for one or two
years in 1962 and 1963. Thereafter, he did not teach Chemis-
try at any time in any College. In 1964-65 he diverted his
attention and sought admission in LL.B. Degree Course. In
1968, he enrolled himself as an advocate and since then
concentrated only in law courts. In this gap of twenty five
years he must have clearly lost touch with Chemistry as well
as art of teaching. It must have been also deeply buried and
disintegrated under the new acquisition of his legal knowl-
edge. Reinstatement of such a person seems to be unjustified
and uncalled for.
The next question for consideration is whether the
respondent is entitled to damages or salary as ordered by
the High Court and if so what should be the measure for
determination? Counsel for the appel-
460
lants urged that the respondent’s claim for salary was the
subject matter of previous litigation which finally ended
with a decree by this Court in C.A. No. 5891 of 1983 and it
was a final settlement of all his claims. It was also argued
that in any event, the respondent is not entitled to damages
or salary for more than three years. Our attention was drawn
to the decision in Tilok chand Motichand & Ors. v. B. Munshi
& Anr., [1969] 2 SCR 824.
In reply and in support of the High Court order, counsel
for the respondent referred to us a number of decisions and
in particular (i) Malmoona Khatun and Anr. v. State of U.P.
& Anr., [1980] 3 SCR 676; (ii) Managing Director, Uttar
Pradesh Warehousing Corporation and Anr. v. Vinay Narain
Vajpayee, [1980] 2 SCR 773 and (iii) Maharaja Sayajirao
University of Baroda and Ors. v. R.S. Thakur, AIR 1969 SC
2112.
We have read cases carefully, but it is not necessary to
refer to them in detail when we have guidance from binding
precedents in similar cases. There is a triology of cases on
the question, See: (i) The Vaish Degree College, (ii) Smt.
J. Tiwari and (iii) Deepak Kumar Biswas to which brief
reference was made earlier. in the first of the three cases,
the institution concerned was a degree college managed by a
registered co-operative society. The dismissed Principal of
the College filed a suit for reinstatement, inter alia,
contending that the management of the college though a
society registered under the cooperative societies Act was a
statutory body since affiliated to the Agra University (and
subsequently to Meerut University). It was contended that
the Principal’s termination was in violation of statutory
obligation of the society, and therefore, his reinstatement
should be ordered. But that contention was not accepted and
the Court said (at 74-75):
“That the plaintiff/respondent served the
institution for a short period of two years
only, i.e. from 1964 to 1966 and thereafter he
was bereft of all his powers and did not work
in the college for a single day.
(2) That if the declaration sought for or the
injunction is granted to the plaintiff/re-
spondent the result would be that he would
have to be paid his full salary with interest
and provident fund for full nine years, i.e.
from 1966 to 1975, even though he had not
worked in the institution for a single day
during this period.
461
(3) That consequent upon the declaration the
appellant would have to pay a very huge amount
running into a lakh of rupees or perhaps more
as a result of which the appellant and the
institution would perhaps be completely wiped
out and this would undoubtedly work serious
injustice to the appellant because it is
likely to destroy its very existence.
(4) It is true that the plaintiff/re-
spondent is not at fault,but the stark reali-
ties, hard facts and extreme hardship of the
case speak of themselves.
And said:
“It appears but by virtue of the interlocutory
orders passed by this Court, the appellant has
already deposited Rs.9,000 before the High
Court which was to be withdrawn by the re-
spondent after giving security, and a further
sum of Rs.9,100 being the salary of 13 months
has also been deposited by the appellant
before the trial court under the orders of
this Court. It is also stated by Counsel for
the appellant that the appellant has deposited
Rs.3,000 more. We feel that in the circum-
stances the respondent may be permitted to
keep these amounts with him and he will not be
required to refund the same to the appellant.
The amount of deposit in the High Court, if
not withdrawn by the respondent may now be
withdrawn by him without any security and if
he has already withdrawn the amount he will be
discharged from the security. This will vindi-
cate the stand of the respondent and compen-
sate him for any hardship that may have been
caused to him by the order terminating his
services, and will also put a stamp of finali-
ty to any further litigation between the
parties.”
The case of Smt. J. Tiwari seems-to be closer to the
case before us. There the appellant claimed arrears of
salary for six years covered by the period of suspension
from 1952 till 1958. In January 1952 she filed a suit in the
court of Munsif challenging her suspension which was later
withdrawn by the High Court of Allahabad for trial by it-
self. The High Court decreed the suit holding that the order
of suspension was not made by a properly constituted Commit-
tee. On 24 May 1958, her services were terminated by the
management of the college with retrospective effect from the
date of suspension. On 28 August 1958, she filed a suit for
a declaration that she continued in the service and
462
for setting aside the termination order. She claimed a
decree in a sum of Rs.37,657.40 by way of salary. The trial
court upheld her contention that the termination of service
was bad and ineffective. The trial Court, however, passed a
decree in her favour in the sum of Rs. 15,250 as arrears of
pay for a period of 3 years from August 1, 1955 to July 31,
1958. Both the parties filed appeals before the High Court.
The Division Bench of the High Court partly allowed the
appeal of the management and dismissed the appeal of Smt. J.
Tiwari. The High Court took the view that though the dis-
missal was wrongful, she was entitled to a decree of damages
only and not to a declaration that she still continued to be
in the service of the management. The High Court upheld the
money decree passed by the trial court, but did so on the
ground that the amount awarded by the trial court by way of
arrears of salary could justifiably be granted to her by way
of damages. This Court while affirming the decree of the
High Court has, however, said as follows (at p. 162):
“The High Court has treated the claim for
three years’ arrears of salary as being pay-
able to the appellant on account of damages.
But that is not a right approach to the prob-
lem. The appellant is entitled to three years’
arrears of salary for the period of suspension
,since the order of suspension was without
jurisdiction and until May 1958 no order of
termination of her service was passed by the
Society. In addition to the arrears of three
years’ salary, the appellant would be entitled
to three months’ salary as provided for by
clause 10 of the agreement.
We would like to add that even if the appel-
lant could be held to be entitled to a decla-
ration that she continued to be in the service
of respondent 1, this is not a proper case in
which such a declaration should be granted to
her. The appellant’s claim according to her
counsel would amount to over Rs.2 lakhs. The
appellant has admitted in her evidence that
she did not make any attempt to mitigate the
damages by trying to obtain an alternative
employment during the last 20 years. The
difficulty of obtaining employment is an
argument which cannot be permitted to a person
who, on her own showing, has made no effort to
obtain any employment.”
Deepak Kumar Biswas case appears to be the closest to
the present case. There the appellant was a Lecturer in
English in Lady Keane
463
Girls College, Shillong. The college was governed by the
statutes of the Meghalaya University and the Education Code
framed by the State Government. The college was also receiv-
ing financial aid from the Government. His appointment was
terminated for want of approval by the Director of Public
Instruction. The trial court decreed the suit for declara-
tion and permanent injunction. The appellate Court set aside
that decree and granted monetary compensation of one year
salary as damages although his removal was found to be
wrongful. This Court sustained the removal but enhanced the
compensation to three years’ salary following the pattern
adopted in the aforesaid two cases.
What do we have here? In 1962 the respondent was ap-
pointed as a Chemistry lecturer in the scale of Rs. 175-10-
215. His performance was found to be unsatisfactory. In
August 1964, he was placed under suspension. In January
1966, he was again suspended. Thereafter, he brought suit
after suit, appeal after appeal from the lowest court to the
Apex Court. He continued the litigation for about 25 years.
On 17 March 1976 the management had appointed Dr. Gopendra
Kumar as Chemistry Lecturer and his appointment was approved
by the DIOS. On 28 October 1982 the management passed a
resolution confirming his appointment w.e.f. 27 September
1975. That was also approved by the DIOS. Dr. Gopendra Kumar
was not a party to any one of the earlier litigations nor to
the present appeal.
The respondent knew very well that his service contract
was with the private management. In 1964 itself learned
Munsif while dismissing the first suit No. 422/1963 has held
that his contract of employment could not specifically be
enforced. He was then obliged to place his services on the
market to mitigate the damages. But he did nothing of the
kind. In 1968 he joined legal profession and he is still not
out of it. He has not disclosed his professional income. In
fairness he ought to have disclosed his income to the Court
since it is in his personal knowledge. Instead, he seems to
have urged before the High Court that the professional
income is not relevant for consideration. The High Court
while accepting the submission went a step further and
observed: “that joining the legal fraternity can never be
said to be employment and could not disentitle the respond-
ent to claim his arrears of salary.” Legal profession may
not be considered as an employment but the income from
profession or avocation if not negligible, can not be
ignored while determining damages or back wages for payment.
It must also be taken into consideration. In S.M. Saiyad v.
Baroda Municipal Corporation, Baroda, [1984] (Supp) SCC 378
the Court gave deduction of even a small income of Rs. 150
per month
464
earned by the worker turned advocate while awarding back-
wages upon reinstatement.
But we cannot accept the contention for the appellants
that the sum of Rs. 10,000 decreed in favour of the respond-
ent in Civil Appeal No. 5891 of 1983 was a final settlement
of all his claims. There is no indication in the order of
this Court to that effect.
In the light of all these facts and circumstances and
the authorities to which we have called attention, it seems
to us that it would be sufficient if the respondent is given
salary for three years on account of damages.
In the result, the appeals are allowed and in reversal
of the judgment of the High Court, we direct that the re-
spondent be paid three years salary. The payment shall be
treated as a final settlement of all his claims. The payment
shall be made by the management and not by Government. In a
case like this, the Government cannot be saddled with the
liability to make payment. There is no relationship of
master and servant between Government and respondent and
such relationship existed only between the management and
respondent. So far as statutory liability to pay salary to
teachers is concerned, the Government has been paying salary
to Dr. Gopendra who has since been appointed as Lecturer in
the place of respondent. Therefore, the Management alone
should pay the amount ordered. The payment shall be made
within four weeks.
In the circumstances of the case, we make no order as to
costs.
Y. Lal Appeals al-
lowed.
465