{"id":246758,"date":"2007-04-05T00:00:00","date_gmt":"2007-04-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/secretary-akola-taluka-vs-shivaji-and-ors-on-5-april-2007"},"modified":"2018-10-22T19:50:09","modified_gmt":"2018-10-22T14:20:09","slug":"secretary-akola-taluka-vs-shivaji-and-ors-on-5-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/secretary-akola-taluka-vs-shivaji-and-ors-on-5-april-2007","title":{"rendered":"Secretary, Akola Taluka … vs Shivaji And Ors on 5 April, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Secretary, Akola Taluka … vs Shivaji And Ors on 5 April, 2007<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  1816 of 2007\n\nPETITIONER:\nSecretary, Akola Taluka Education Society & Anr\n\nRESPONDENT:\nShivaji and Ors\n\nDATE OF JUDGMENT: 05\/04\/2007\n\nBENCH:\nS.B. Sinha & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
CIVIL APPEAL NO.    1816                OF 2007
\n[Arising out of SLP (Civil) No.13907 of 2006]<\/p>\n
S.B. SINHA, J :\n<\/p>\n
Leave granted.\n<\/p>\n
The State of Maharashtra enacted ‘The Maharashtra Employees of
\nPrivate Schools (Conditions of Service) Regulation Act, 1977 (for short, ‘the
\nAct’) to regulate recruitment and conditions of service of employees in
\ncertain private schools.  It came into force with effect from 20.03.1978.
\n‘Private School’ has been defined in Section 2(20) of the Act to mean :\n<\/p>\n
“Private School”, means a recognized school established
\nor administered by a Management other than the
\nGovernment or a local authority.”\n<\/p>\n
The terms ‘recognized’ and ‘school’ have been defined in Section
\n2(21) and  2(24) respectively in the following terms :\n<\/p>\n
“2(21).-“Recognized” means recognized by the Director,
\nthe Divisional Board or the State Board, or by any officer
\nauthorized by him or by any of such Boards;”\n<\/p>\n
“2(24).- “School”, means a primary school, secondary
\nschool, higher secondary school, junior college of
\neducation or any other institution by whatever name
\ncalled including technical, vocational or art institution
\nor part of any such school, college or institution, which
\nimparts general, technical, vocational, art or, as the case
\nmay be, special education or training in any faculty or
\ndiscipline or subject below the degree level;”\n<\/p>\n
Appellant No.1 herein runs a training institute.  It imparts vocational
\ntraining to the students admitted therein in different disciplines e.g.
\nDraftsman Civil, Electrician, Wireman, Welder and Fitter etc. The strength
\nof the students in the aforementioned disciplines allegedly began to go down
\nfrom year to year.  So much so, no student took admission in the courses of
\n‘Draftsman Civil’ or ‘Welder’.  The relevant portion of the chart showing
\ndetails of admissions in the aforementioned disciplines reads as under :
\n”\n<\/p>\n
Sr.\n<\/p>\n
No.\n<\/p>\n
Academic
\nYear
\n   Draftsman Civil
\n      Electrician
\n       Wireman
\n      Welder
\n       Fitter<\/p>\n
Sanctioned
\nstrength
\nActual
\nadmission
\nSanctioned
\nstrength
\nActual
\nadmission
\nSanctioned
\nstrength
\nActual
\nadmission
\nSanction
\ned
\nstrength
\nActual
\nadmission
\nSanction
\ned
\nstrength
\nActual
\nAdmission
\n14<\/span>
\nAugust
\n1998<\/span>
\n16<\/span>
\n08<\/span>
\n16<\/span>
\n18<\/span>
\n16<\/span>
\n18<\/span>
\n16<\/span>
\n18<\/span>
\n24<\/span>
\n26<\/span>
\n15<\/span>
\nAugust
\n1999<\/span>
\n16<\/span>
\n09<\/span>
\n16<\/span>
\n18<\/span>
\n16<\/span>
\n09<\/span>
\n16<\/span>
\n18<\/span>
\n24<\/span>
\n19<\/span>
\n16<\/span>
\nAugust
\n2000<\/span>
\n16<\/span>
\n07<\/span>
\n16<\/span>
\n17<\/span>
\n16<\/span>
\n07<\/span>
\n16<\/span>
\n12<\/span>
\n24<\/span>
\n14<\/span>
\n17<\/span>
\nAugust
\n2001<\/span>
\n16<\/span>
\n00<\/span>
\n16<\/span>
\n09<\/span>
\n16<\/span>
\n06<\/span>
\n16<\/span>
\n05<\/span>
\n24<\/span>
\n11<\/span>
\n18<\/span>
\nAugust
\n2002<\/span>
\n16<\/span>
\n00<\/span>
\n16<\/span>
\n01<\/span>
\n16<\/span>
\n05<\/span>
\n16<\/span>
\n00<\/span>
\n24<\/span>
\n02<\/span><\/p>\n
Similarly, in the certificate courses of six months and one year also,
\nthere had been a steady decline, as would appear from the following charts :\n<\/p>\n
“Details of Admission for Certificate Courses of six months<\/p>\n
Sr.\n<\/p>\n
No.\n<\/p>\n
Academic
\nYear
\nElectric Motor & Armetcher
\n            Winding
\nElectronic Assembly &
\nTrouble shooting<\/p>\n
Sanctioned
\nStrength
\nActual
\nAdmission
\nSanctioned
\nStrength
\nActual
\nAdmission\n<\/p>\n
1.
\nJan. 1999
\n      20<\/span>
\n      13<\/span>
\n       25<\/span>
\n       10<\/span>\n<\/p>\n
2.
\nJul. 1999
\n      20<\/span>
\n      16<\/span>
\n       25   <\/span>
\n       05<\/span>\n<\/p>\n
3.
\nJan. 2000
\n      20<\/span>
\n      05<\/span>
\n       25<\/span>
\n       06<\/span>\n<\/p>\n
4.
\nJul. 2000
\n      20<\/span>
\n      15<\/span>
\n       25<\/span>
\n       07<\/span>\n<\/p>\n
5.
\nJan. 2001
\n      20 <\/span>
\n      08<\/span>
\n       25 <\/span>\n<\/p>\n
       —\n<\/p>\n
6.
\nJul. 2001
\n      20<\/span>
\n      06<\/span>
\n       25<\/span>\n<\/p>\n
       —\n<\/p>\n
7.
\nJan. 2002
\n      20<\/span>\n<\/p>\n
      —\n<\/p>\n
       25 <\/span><\/p>\n
       —\n<\/p>\n
8.
\nJul. 2002
\n      20<\/span>\n<\/p>\n
      —\n<\/p>\n
       25<\/span><\/p>\n
       —\n<\/p>\n
Details of Admission for Certificate Courses of one year
\nSr.\n<\/p>\n
No.\n<\/p>\n
Academic
\nYear
\nTailoring &
\n Cutting
\nLathe Machine
\nOperator
\nComputer Operation
\n    (Part-time) <\/p>\n
Sanctioned
\nStrength
\nActual
\nAdmission
\nSanctioned
\nStrength
\nActual
\nAdmission
\nSanctioned
\nStrength
\nActual
\nAdmission\n<\/p>\n
1.
\nJul. 1998
\n      40<\/span>
\n      34<\/span>
\n       25<\/span>
\n    17<\/span>
\n    20<\/span>\n<\/p>\n
     —\n<\/p>\n
2.
\nJul. 1999
\n      40<\/span>
\n      24<\/span>
\n       25   <\/span>
\n    09<\/span>
\n    20<\/span>\n<\/p>\n
     —\n<\/p>\n
3.
\nJul. 2000
\n      40<\/span>
\n      26<\/span>
\n       25<\/span>
\n    05<\/span>
\n    20<\/span>\n<\/p>\n
     —\n<\/p>\n
4.
\nJul. 2001
\n      40 <\/span>
\n      32<\/span>
\n       25 <\/span>
\n    06<\/span>
\n    20<\/span>\n<\/p>\n
     —\n<\/p>\n
5.
\nJul. 2002
\n      40<\/span>\n<\/p>\n
      —\n<\/p>\n
       25<\/span><\/p>\n
    —\n<\/p>\n
    20<\/span><\/p>\n
     —\n<\/p>\n
\t\t\t\t\t\t\t\t\t\t          ”\n<\/p>\n
Respondent No. 1 herein was appointed on a temporary basis.  The
\nservices of the private respondents were purported to have been temporarily
\nterminated as allegedly a decision had been taken to close down the institute
\nwith effect from 12.08.2002, contending that the said purported orders of
\ntermination were violative of the Act and the Rules framed thereunder.\n<\/p>\n
Appeals thereagainst were filed by the aggrieved employees\/teachers
\nbefore the School Tribunal, Pune Region.  The jurisdiction of the Tribunal to
\nentertain the said appeals was questioned on the ground that the institute in
\nquestion was not a school within the meaning of the provisions of the said
\nAct.  The Tribunal, however, in its judgment held : (i) As the appellant was
\nduly recognized by the Central Government permanently without grant-in-
\naid, it was a school within the meaning of the provisions of the said Act; (ii)
\nInter alia, on the premise that the services of all the staff and teachers were
\nnot terminated, the plea of  the appellant that the institute had to be closed
\ndown being incorrect, the orders of termination were mala fide;\n<\/p>\n
The Tribunal furthermore took note of the fact that during pendency
\nof the said appeals, some new teachers had been appointed.\n<\/p>\n
The writ petition preferred by the appellant thereagainst has been
\ndismissed by reason of the impugned judgment.\n<\/p>\n
Mr. Shekhar Naphade, the learned Senior Counsel appearing on
\nbehalf of the appellants, would urge :\n<\/p>\n
(i)\tThe institute is not covered by the definition of the ‘private school’
\nwithin the meaning of the provisions of the said Act, as it was not
\nrecognized by the authorities under the said Act.\n<\/p>\n
(ii)\tThe Tribunal in its judgment merely proceeded on the basis that the
\nschool, in fact, was not closed down, but having failed to take into
\nconsideration the charts filed before it; from which, it would appear that the
\nnumber of students had gone down in different disciplines, and thus, the
\nimpugned judgment cannot be sustained.\n<\/p>\n
(iii)\tThe Tribunal wrongly allowed full back wages to the teachers without
\ntaking into consideration the financial condition of the appellant.\n<\/p>\n
\tOur attention, in this behalf,  has also been drawn to the following
\nstatements made in the Rejoinder to the Counter Affidavit of Respondent
\nNos. 1 to 3  before  this Court \t :\n<\/p>\n
\t“I say that the details of the number of students currently
\nstudying in the Institute and the fees collected from them are as
\nfollows :\n<\/p>\n
Students studying in 2nd
\nyear of ITI
\n47 x Rs.6,000 (Fees
\ncollected from every
\nstudent)
\nRs.2,82,000\/-\n<\/p>\n
Students studying in 1st
\nyear of ITI
\n72 x Rs.8,000\/- (Fees
\ncollected from every
\nstudent)
\nRs. 5,76,000\/-\n<\/p>\n
Students studying in
\ncertificate course
\n7 x 2,000 (Fees
\ncollected from every
\nstudent)
\nRs.14,000\/-\n<\/p>\n
                         Total
\nRs.8,72,000\/-\n<\/p>\n
\tI say that the details regarding the expenses incurred by
\nthe Petitioner on the salary and other miscellaneous expenses
\nare as follows :\n<\/p>\n
1.
\nTowards salary of
\nstaff at current rate of
\nconsolidated pay
\nRs. 65,200\/- per month x
\n12 months
\nRs.7,80,400\/- per
\nannum\n<\/p>\n
2.
\nExpenses for raw
\nmaterial per student
\nper year (Rs.2400)
\nRs.2,400 x 126 (No. of
\nstudents)
\nRs.3,02,400\/-\n<\/p>\n
3.
\nMisc. Expenses
\n(Telephone bill,
\nelectricity bill,
\nstationery, travel
\nexpenses, repairs, etc.<\/p>\n
Rs.2,00,000\/-\n<\/p>\n
                  Total
\nRs.12,82,800\/-\n<\/p>\n
\tConsidering the above mentioned two tables, it becomes
\nclear that the Petitioner is facing a deficit of Rs.4,10,800\/- in
\nthe current academic year.  The Petitioner if is directed to pay
\n100% back wages to the Respondents employees, it would
\ncreate a burden of more than Rs. 40 lacs.  The Petitioner is not
\nin a position to pay back wages and the said direction would
\naffect the poor students, who are studying in the Institute and
\nthe efforts of the Management to re-establish the Institute
\nwould be thwarted.  It is respectfully submitted that the institute
\nis being run by reducing the tuition fees so as to attract the
\nhigher number of students.  As stated earlier the fees charged
\nfrom the students have dwindled from Rs.20,000\/- per annum in
\nthe year 1998 to Rs.6,000\/- to 8,000\/- at present.”\n<\/p>\n
\tIt was furthermore submitted that the institute having been set up in a
\ntribal area, it is unlikely that many  students would take admission in the said
\ninstitute in future.\n<\/p>\n
\tMr. Vinayak Dixit, the learned Senior Counsel appearing on behalf of
\nthe respondents, on the other hand, supported the impugned judgment
\ncontending  that the plea taken by the appellant that the school was required
\nto be closed down was an act of mala fide on the part of the appellants.  The
\nlearned counsel would contend that in terms of Rule 26 of the Maharashtra
\nEmployees of Private Schools (Conditions of Service) Rules, 1981, as the
\nappellant was bound to give three months’ notice and was furthermore
\nrequired to obtain prior approval of the competent authority specified
\ntherein; and as the mandatory conditions for retrenching the services of the
\nrespondents had not been complied with, the orders of termination were void
\nab initio.\n<\/p>\n
\tIt was submitted that the appellant had not paid any salary to the
\nteachers for the last 23 months, although they had been reinstated in terms of
\nthis Court’s order dated 19.08.2006.  \tIt was also submitted that even after
\ntheir reinstatement, they are being paid salary only on a consolidated basis.\n<\/p>\n
\tThe question as to whether the provisions of the said Act were
\napplicable in the case of Appellant school although raised a question of
\njurisdiction, in our opinion, it was necessary for the appellant to plead the
\njurisdictional fact in relation thereto.\n<\/p>\n
\tIt is true that in the light of the interpretation clause contained in the
\nsaid Act, a ‘private school’ was required to be recognized by the authorities
\nspecified therein.  The Tribunal had found that it was recognized by the
\nCentral Government.  The State also in its counter affidavit contended that it
\nis recognized by the State.  Appellant herein did not raise a contention
\nbefore the Tribunal that the institute in question was not recognized by the
\nauthorities specified under sub-section (21) of Section 2 of the Act.  The said
\ncontention was required to be specifically raised so as to enable the
\nrespondents herein to meet the same.  As the jurisdictional fact required for
\ndetermining the jurisdiction of the Tribunal had not been stated by the
\nappellants, we are of the opinion that such a contention cannot be allowed to
\nbe raised before us for the first time.\n<\/p>\n
\tThere cannot be any doubt whatsoever that if the ‘institute’ comes
\nwithin the description of ‘school’ in terms of the provisions of the said Act,
\nbefore terminating the services of the respondents, it was obligatory on their
\npart to satisfy the conditions precedent therefor.\n<\/p>\n
\tRule 26 of the Rules provides that a permanent employee may be
\nretrenched by the management after giving him three months’ notice on one
\nor  more grounds specified therein.  Stoppage of imparting coaching in
\nrespect of some courses of studies was one of them.  Admittedly, the
\nrespondents had not been given three months’ notice.  The order of
\ntermination was, therefore,  bad in law.\n<\/p>\n
\tWe may, however, state that in view of the provisions contained in
\nsub-clause (ii) of clause (2) of Rule 26, it was not necessary to obtain prior
\napproval of the Education Officer, as a technical or a vocational school does
\nnot come within the purview thereof.  There cannot furthermore be any
\ndoubt whatsoever that the contention raised by the appellants before the
\nTribunal that the institute was required to be closed down was found to be
\nfactually incorrect and on that ground the decision of the Tribunal to the
\neffect that the termination of services of the respondents were bad in law
\ncannot be said to be suffering from any error of law apparent on the face of
\nthe records.\n<\/p>\n
\tThe Tribunal, however, in our opinion ought not to have granted full
\nback wages.  Full back wages, as is well-known, should not be directed to be
\ngranted only because it would be lawful to do so.  Before such an order is
\npassed, a judicial or a quasi-judicial authority must consider all aspects of
\nthe matter.  Appellant herein has produced facts to show decline in strength
\nof the students in different disciplines.  The same has not been disputed.  We
\nhave noticed hereinbefore that in some disciplines the strength of the
\nstudents has considerably gone down.  The school is an unaided one.  It,
\ntherefore, must meet its financial need from the fees realized from the
\nstudents.  It was a relevant consideration.  The Tribunal, in our opinion,
\nfailed to take the said fact into consideration.  The financial condition of the
\nschool, as noticed supra, has also not been denied or disputed.\n<\/p>\n
\tIt is now well-settled by a large number of decisions of this Court that
\nback wages should not granted automatically.  In U.P. State Brassware
\nCorporation Ltd. and Anr. v. Uday Narain Pandey<\/a> [(2006) 1 SCC 479], this
\nCourt observed :\n<\/p>\n
“22. No precise formula can be laid down as to under
\nwhat circumstances payment of entire back wages should
\nbe allowed. Indisputably, it depends upon the facts and
\ncircumstances of each case. It would, however, not be
\ncorrect to contend that it is automatic. It should not be
\ngranted mechanically only because on technical grounds
\nor otherwise an order of termination is found to be in
\ncontravention of the provisions of Section 6-N of the
\nU.P. Industrial Disputes Act.”\n<\/p>\n
[See also Banshi Dhar v. State of Rajasthan & Another<\/a>  2006 (11) SCALE
\n199  Para 11]<\/p>\n
\tIn U.P. SRTC  v. Mutthu Singh<\/a> [(2006) 7 SCC 180], this Court
\nopined :\n<\/p>\n
“But we are fully satisfied that in the facts and
\ncircumstances of the case, back wages should not have
\nbeen awarded to the respondent-workman. In several
\ncases, this Court has held that payment of back wages is
\na discretionary power which has to be exercised by a
\ncourt\/tribunal keeping in view the facts in their entirety
\nand neither straight jacket formula can be evolved nor a
\nrule of universal application can be laid down in such
\ncases.”\n<\/p>\n
[See also A.P. SRTC and Another v. B.S. David Paul  – (2006) 2 SCC 282]<\/p>\n
\tWe, therefore, are of the opinion that in the peculiar facts and
\ncircumstances of this case,  interest of justice shall be met if grant of back
\nwages is confined to 25% only from the date of termination of the
\nrespondents  till their reinstatement.  It is, however, made clear that the
\nrespondents shall be entitled to receive entire salary for the period they had
\nworked prior to their termination as also post reinstatement.\n<\/p>\n
\tThe appeal is allowed to the aforementioned extent with the
\naforementioned directions.  However, in the facts and circumstances of the
\ncase, there shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Secretary, Akola Taluka … vs Shivaji And Ors on 5 April, 2007 Author: S.B. Sinha Bench: S.B. Sinha, Markandey Katju CASE NO.: Appeal (civil) 1816 of 2007 PETITIONER: Secretary, Akola Taluka Education Society & Anr RESPONDENT: Shivaji and Ors DATE OF JUDGMENT: 05\/04\/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-246758","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSecretary, Akola Taluka ... vs Shivaji And Ors on 5 April, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/secretary-akola-taluka-vs-shivaji-and-ors-on-5-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Secretary, Akola Taluka ... vs Shivaji And Ors on 5 April, 2007 - 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