SUKANYABEN G VAKIL Vs. RASIKLAL T DALAL

JUDGEMENT

(1.) THE petitioner is the Secretary of a Trust which administers a secondary school. The petitioner takes exception to a judgment and order passed by the Presiding Officer, School Tribunal, Bombay dated 9. 3. 1993 which in turn partly allows the appeal filed by respondent No. 1 and grants back wages in lieu of reinstatement dehorse of section 11 (2) (e) of the Maharashtra Employees of Private Schools and Prevention of Unfair Labour Practices Act, 1977 (the "act" ). Few facts that are relevant for adjudicating the issue involved in this petition are narrated herein below.

(2.) THE respondent No. 1 came to be appointed as Head Master in a school known as Shishu Sadan Prathamik and Madhyamik Shala with effect from 1. 7. 1980. The school in question is a minority school administered by linguistic minority. The order of appointment appointing respondent No. 1 as Head Master mentions that the appointment is for a period of two year but on temporary basis. The respondent No. 1 came to be terminated from service by a notice of termination dated 16. 3. 1982 with effect the same date after paying one month salary in lieu of notice. Aggrieved by the termination respondent No. 1 filed an appeal before the School Tribunal under section 9 of the Act. The respondent No. 1 contended before the Tribunal that though the appointment order describes the appointment of the respondent No. 1 as temporary appointment the appointment in fact was on probation for a period of two years. Further limb of the submission was that if the appointment of the respondent No. 1 is construed to be one on probation then said appointment can only be terminated under section 5 (3) of the Act on the ground that the work and/or behaviour of the employee was not satisfactory. Lastly it was submitted by respondent No. 1 that as the notice of termination does not mention unsatisfactory work or behaviour as reason for termination, the termination must fall to the ground and hence respondent No. 1 herein claimed reinstatement with full back wages. Per contra the petitioner/ management submitted that the order of appointment itself describes the appointment to be temporary in nature for a period of two years and hence respondent No. 1 is temporary employee. It is then submitted that assuming that the appointment was on probation still the termination was effected much before completion of period of two years and hence no fault can be found with the termination. There is one more angle to this dispute about legality and validity of termination of respondent No. 1 and the same is that after termination of respondent No. 1 with effect from 16. 3. 1982 some other person came to be appointed as Head Master and long back assumed confirmation and permanency. It was also noticed by the Tribunal that after termination of respondent No. 1 he had secured various appointments under different employers and was gainfully employed from the year 1984 onwards. It is further noticed by the Tribunal that respondent No. 1 herein had worked for a period of more than three years under Adarsh Vidyalaya with effect from 5. 10. 1985 to 1. 8. 1988 and had challenged the said termination before the School Tribunal. The dispute was settled by respondent No. 1 accepting sum of Rs. 40,000/- towards full and final settlement of his claim. Taking over all view of the matter and being convinced that in the facts of the present case reinstatement was not to be granted, though the Tribunal has quashed and set aside the termination notice, it had proceeded to grant relief in the following terms:

(3.) LEARNED counsel for the petitioner states that as the Tribunal was convinced that in the facts of the present case there was no reason to grant reinstatement and a recourse had been taken to section 11 (2) (e) of the Act then it was wholly unjustified for the Tribunal to have proceeded to award further compensation by directing payment of back wages from the date of termination till the date of the order. Learned counsel for the petitioner has contended that once recourse is taken to section 11 (2) (e) of the Act there is no scope for granting back wags as the statute lays down and prescribes the quantum of compensation to be awarded to an employee depending upon the number of years of service rendered by him. It is thus submitted that the later part of direction in relation to the payment of back wages from the date of termination till the date of judgment is without jurisdiction and the Tribunal which has limited jurisdiction could not have granted the said payment of back wages by placing reliance on the judgments of the Supreme Court in the cases of O. P. Bhandari Vs. India Tourism Development Corporation, AIR 1987 SC 111 and Bharat Fritz Werner (P) Ltd. and Anr. Vs. Workmen of Bharat Fritz Werner (P) Ltd. , 1990 (3) SCC 565. It will not be out of place to mention at this juncture that while issuing rule in the writ petition this Court has granted stay to the payment of back wages from the date of termination till the date of judgment subject to condition that the petitioner deposits an amount of compensation equivalent to six months salary as is payable under section 11 (2) (e) of the Act and the respondent No. 1 is also permitted to withdraw the same. The learned counsel for the respondent submits that the respondent No. 1 was very meritorious candidate and was really instrumental in getting the school admitted to the grants and hence he need be properly and adequately compensated. As the Tribunal has refused to grant reinstatement and as much water has flown after termination of respondent No. 1 in the year 1982 the question as to whether the termination of respondent No. 1's service is legal or otherwise looses its significance as the respondent No. 1 thereafter had sought employment elsewhere under various employers and the petitioner on the other hand has appointed some other person as Head Master. The only question that remains to be answered is that if the School Tribunal finds that termination is illegal and further finds that in the facts of given case reinstatement is not to be granted then is it incumbent on the Tribunal to exercise powers under section 11 (2) (e) of the Act or can the Tribunal in its discretion grant compensation contrary to criteria laid down under section 11 (2) (e) of the Act as has been done in the present case.