# 9 S.C.R. 1 DEEPALI GUNDU SURWASE v. KRANTI JUNIOR ADHYAPAK MAHAVIDYALAYA (D.ED.) AND OTHERS

- **Citation:** [2013] 9 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2013-08-12
- **Case number:** Civil Appeal No. 6767 of 2013
- **Bench:** G.S. Singhvi, V. Gopala Gowda
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/9-s-c-r-1-deepali-gundu-surwase-v-kranti-junior-adhyapak-mahavidyalaya-d-ed-and-29430
- **Pages:** 51

## Headnote

Service Law:
A
B
c
Back wages on reinstatement -
Suspension and
termination of services of school teacher - Declared by
Tribunal as illegal - Reinstatement - Award of full back
wages, set aside by High Court - Held: High Court committed
grave error by interfering with the order passed by Tribunal
0
for payment of back wages, ignoring that the charges levelled
against appellant were frivolous and the inquiry was held in
gross violation of the rules of natural justice -
Impugned
order set aside and order passed by Tribunal restored -
Management shall pay full back wages to appellant.
Award of back wages, when termination of employee
found to be illegal - Principles culled out - Labour law -
Industrial Disputes Act, 1947 - s.11-A - Back wages.
E
Maharashtra Employee$ of Private Schools (Conditions
F
of Service) Act, 1977:
Objects of the Act - Explained.
Maharashtra Employees of Private Schools (Conditions
of Service) Rules, 1981:
G
r. 34 -
Suspension of employee - Entitlement to
subsistence allowance - Discussed.
Words and Phrases:
1
H
-
-
2
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A
'Reinstatement' in the context of termination of service of
an employee - Connotation of - Explained.
The appellant was appointed as a teacher in a
Primary School run by a trust and receiving grant in aid,
8 which included rent for the building. In 2005, the
Municipal Corporation raised a tax bill of Rs.79,974/-
treating the said property as commercial. Thereupon,' the
Headmistress of the school, who was also President of
the Trust, addressed a letter to all the employees
C including the appellant requiring them to contribute a sum
of Rs.1500/- per month towards the tax liability. The
appellant refused to comply with the said dictate. The
management issued as many as 25 memos to the
appellant and then placed her under suspension by letter
dated 14.11.2006. She was not even paid subsistence
D allowance. The management issued notice dated
28.12.2006 for holding an inquiry against the appellant
under rr. 36 and 37 of the Maharashtra Employees of
Private Schools (Conditions of Service) Rules, 1981. The
appellant's nominee was not allowed to participate in the
E inquiry proceedings, which were conducted ex parte.
Ultimately, the appellant's services were terminated by
order dated 15.6.2007. The appeal filed by the appellant
was allowed by the School Tribunal with full back wages.
In the writ petition filed by the Management, the High
F Court concurred with the Tribunal that suspension and
termination of the appellant were violative of the statutory
provisions and the principles of natural justice, but, it,
relying upon the judgments in J.K. Synthetics Ltd1• and
Zilla Parishad2, Gadchiroli, set aside the direction for
G payment of back wages.
Allowing the appeal, the Court
1.
K.P. Agrawal and another 2007 (2) SCR 60.
H
2.
Prakash slo Nagorao Thete and another 2009 (4) Mh. L.J. 628.
DEEPALI GUNDU SURWASE v. KRANTI JUNIOR
3
ADHYAPAK MAHAVIDYALAYA (D.ED.)
HELD: 1.1. The Maharashtra Employees of Private A
Schools (Conditions of Service) Regulation Act, 1977
was enacted to regulate the recruitment and conditions
of service of employees in private schools in the State
and to instill a sense of security among the employees
so that they may fearlessly discharge their duties
B
towards the pupil, the institution and the society. Another
object of the Act is to ensure that the employees becom~
accountable to the management and contribute their
might for improving the standard of education. [Para 12]
~0-E~
C
1.2. Rule 35 of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 empowers
the management to suspend an employee with the prior
approval of the competent authority. The exercise of this
power is hedged with the condition that the period of D
suspension shall not exceed four months without prior
permission of the authority concerned. The suspended
employee is entitled to subsistence allowance under the
scheme of payment [Rule 34] throug

## Text

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(2013] 9 S.C.R. 1
DEEPALI GUNDU SURWASE
v.
KRANTI JUNIOR ADHYAPAK MAHAVIDYALAYA (D.ED.)
AND OTHERS
(Civil Appeal No. 6767 of 2013)
AUGUST 12, 2013
[G.S. SINGHVI AND V. GOPALA GOWDA, JJ.]
Service Law:
A
B
c
Back wages on reinstatement -
Suspension and
termination of services of school teacher - Declared by
Tribunal as illegal - Reinstatement - Award of full back
wages, set aside by High Court - Held: High Court committed
grave error by interfering with the order passed by Tribunal
0
for payment of back wages, ignoring that the charges levelled
against appellant were frivolous and the inquiry was held in
gross violation of the rules of natural justice -
Impugned
order set aside and order passed by Tribunal restored -
Management shall pay full back wages to appellant.
Award of back wages, when termination of employee
found to be illegal - Principles culled out - Labour law -
Industrial Disputes Act, 1947 - s.11-A - Back wages.
E
Maharashtra Employee$ of Private Schools (Conditions
F
of Service) Act, 1977:
Objects of the Act - Explained.
Maharashtra Employees of Private Schools (Conditions
of Service) Rules, 1981:
G
r. 34 -
Suspension of employee - Entitlement to
subsistence allowance - Discussed.
Words and Phrases:
1
H
-
-
2
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A
'Reinstatement' in the context of termination of service of
an employee - Connotation of - Explained.
The appellant was appointed as a teacher in a
Primary School run by a trust and receiving grant in aid,
8 which included rent for the building. In 2005, the
Municipal Corporation raised a tax bill of Rs.79,974/-
treating the said property as commercial. Thereupon,' the
Headmistress of the school, who was also President of
the Trust, addressed a letter to all the employees
C including the appellant requiring them to contribute a sum
of Rs.1500/- per month towards the tax liability. The
appellant refused to comply with the said dictate. The
management issued as many as 25 memos to the
appellant and then placed her under suspension by letter
dated 14.11.2006. She was not even paid subsistence
D allowance. The management issued notice dated
28.12.2006 for holding an inquiry against the appellant
under rr. 36 and 37 of the Maharashtra Employees of
Private Schools (Conditions of Service) Rules, 1981. The
appellant's nominee was not allowed to participate in the
E inquiry proceedings, which were conducted ex parte.
Ultimately, the appellant's services were terminated by
order dated 15.6.2007. The appeal filed by the appellant
was allowed by the School Tribunal with full back wages.
In the writ petition filed by the Management, the High
F Court concurred with the Tribunal that suspension and
termination of the appellant were violative of the statutory
provisions and the principles of natural justice, but, it,
relying upon the judgments in J.K. Synthetics Ltd1• and
Zilla Parishad2, Gadchiroli, set aside the direction for
G payment of back wages.
Allowing the appeal, the Court
1.
K.P. Agrawal and another 2007 (2) SCR 60.
H
2.
Prakash slo Nagorao Thete and another 2009 (4) Mh. L.J. 628.
DEEPALI GUNDU SURWASE v. KRANTI JUNIOR
3
ADHYAPAK MAHAVIDYALAYA (D.ED.)
HELD: 1.1. The Maharashtra Employees of Private A
Schools (Conditions of Service) Regulation Act, 1977
was enacted to regulate the recruitment and conditions
of service of employees in private schools in the State
and to instill a sense of security among the employees
so that they may fearlessly discharge their duties
B
towards the pupil, the institution and the society. Another
object of the Act is to ensure that the employees becom~
accountable to the management and contribute their
might for improving the standard of education. [Para 12]
~0-E~
C
1.2. Rule 35 of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 empowers
the management to suspend an employee with the prior
approval of the competent authority. The exercise of this
power is hedged with the condition that the period of D
suspension shall not exceed four months without prior
permission of the authority concerned. The suspended
employee is entitled to subsistence allowance under the
scheme of payment [Rule 34] through Co-operative Bank
for a period of four months. A suspended employee can
E
be denied subsistence allowance only in the
contingencies enumerated in clauses (3) and (4) of r. 33,
i.e., when he takes up private employment or leaves the
headquarters without prior approval of the Chief
Executive Officer. [Para 13] [21-D-G]
F
2.1. The word "reinstatement" has not been defined
in the Act and the Rules. Its dictionary meaning, in the
context, may be taken as 'to restore to a state or position
from which the object or person had been removed.' The
very idea of restoring an employee to the position which
G
he held before dismissal or removal or termination of
service implies that the employee will be put in the same
position in which he would have been but for the illegal
action taken by the employer. [Paras 16 and 17] [28-H; 29D-E]
H
4
SUPREME COURT REPORTS
(2013] 9 S.C.R.
A
Shatter Oxford English Dictionary, Vol. II, 3rd Edition;
Law Lexicon, 2nd Edition; Merriam Webster Dictionary;
Black's Law Dictionary, 6th Edition - referred to.
2.2. The injury suffered by a person, who is
dismissed or removed or is otherwise terminated from
8 service cannot easily be measured in terms of money.
With the passing of an order which has the effect of
severing the employer employee relationship, the latter's
source of income gets dried up. Not only the employee,
but his entire family suffers grave adversities. The
C reinstatement of such an employee, which is preceded
by a finding of the competent judicial/quasi judicial body
or court that the action taken by the employer is ultra
vires the relevant statutory provisions or the principles
of natural justice, entitles the employee to claim full back
D wages, subject to the employer pleading and proving that
during the int~rvening period the employee was gainfully
employed and was getting the same emoluments. The
propositions iri this regard culled out from the judgments
of this Court are:
E
F
G
(i) In cases of wrongful termination of service,
reinstatement with continuity of service and back
wages is the normal rule.
(ii) The rule (i) is subject to the rider that while
deciding th~ issue of back wages, the adjudicating
authority or the court may take into consideration the
length of service of the employee/workman, the
nature of misconduct, if any, found proved against
the employeelworkman, the financial condition of the
employer and similar other factors.
(iii) Ordinarily, an employee or workman whose
services are terminated and who is desirous of
getting back wages is required to either plead or at
least make a statement before the adjudicating
authority or the court of first instance that he/she
DEEPALI GUNDU SURWASE v. KRANTI JUNIOR
5
ADHYAPAK MAHAVIDYALAYA (D.ED.)
was not gainfully employed or was employed on A
lesser wages. Once the employee shows that he was
not employed, the onus lies on the employer to
specifically plead and prove that the employee was
gainfully employed and was getting the same or
substantially similar emoluments.
B
(iv) The cases in which the Labour Court/Industrial -
Tribunal exercises power u/s. 11-A of the Industrial
Disputes Act, 1947 and finds that even though the
enquiry held against the employee/workman is
consistent with the rules of natural justice and I or C
certified standing orders, if any, but holds that the
punishment was disproportionate to the misconduct
found proved, then it will have the discretion not to
award full back wages. However, if the Labour Court/
Industrial Tribunal finds that the employee or D
workman is not at all guilty of any misconduct or that
the employer had foisted a false charge, then there
will be ample justification for award of full back
wages.
E
(v) The cases in which the competent court or
tribunal finds that the employer has acted in gross
violation of the statutory provisions and/or the
principles of natural justice or is guilty of victimizing
the employee or workman, then the court or tribunal
concerned will be fully justified in directing payment F
of full back wages. In such cases, the superior
courts should not exercise power under Art. 226 or
Art. 136 of the Constitution to interfere with the award
passed by the Labour Court, etc., merely because
there is a possibility of forming a different opinion on G
the entitlement of the employee/workman to get full
back wages or the employer's obligation to pay the
same. Courts must always keep in view that in the
. cases of wrongful I illegal termination of service, the
wrongdoer is the employer and sufferer is the H
A
B
c
D
E
F
G
6
SUPREME COURT REPORTS
[2013) 9 S.C.R.
employee/workman and there is no justification to
give premium to the employer of his wrongdoings by
relieving him of the burden to pay to the employee/
workman his dues in the form of full back wages.
(vi) In a number of cases, the superior courts have
interfered with the award of the primary adjudicatory
authority on the premise that finalization of :itigation
has taken long time ignoring that in majority of cases
the parties are not responsible for such delays. Lack
of infrastructure and manpower is the principal
cause for delay in the disposal of cases. For this the
litigants cannot be blamed or penalised. It would
amount to grave injustice to an employee or
workman if he is denied back wages simply because
there is long lapse of time between the termination
of his service and finality given to the order of
reinstatement. Courts should bear in mind that in
most of these cases, the employer is in an
advantageous position vis-a-vis the employee or
workman. Therefore, in such cases it would be
prudent to adopt the course suggested in Hindustan
Tin Works Private Limited v. Employees of Hindustan
Tin Works Private Limited*.
(vii) The observation made in J.K. Synthetics Ltd. v.
K.P. Agrawal** that on reinstatement the employee/
workman cannot claim continuity of service as of
right is contrary to the ratio of the judgments of three
Judge Benches and cannot be treated as good law.
This part of the judgment is also against the very
concept of reinstatement of an employee/workman.
[Para 17 and 33] [29-0-F, G-H; 30-A; 47-E-H; 48-A-H;
49-A-G]
*Hindustan Tin Worl<s Private Limited v. Employees of
Hindustan Tin Worl<s Private Limited 1979 (1) SCR 563 =
H (1979) 2 SCC 80, Surendra Kumar Verma v. Central
DEEPALI GUNDU SURWASE v. KRANTI JUNIOR
7
ADHYAPAK MAHAVIDYALAYA (D.ED.)
Government Industrial Tribunal-cum-Labour Court, New Delhi
A
1981 (1) SCR 789 = (1980) 4 SCC 443; Mohan Lal v.
Management of Bharat Electronics Limited 1981 (3)
SCR 518 = (1981) 3 SCC 225; Workmen of Calcutta Dock
Labour Board and Another v. Employers in relation to
Calcutta Dock Labour Board and Others (1974) 3 SCC 216;
B
P.G.I. of Medical Education & Research, Chandigarh v. Raj
Kumar 2000 (4) Suppl. SCR 50 = (2001) 2 SCC 54;
Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya 2002 (1)
Suppl. SCR 127 = (2002) 6 SCC 41; MP. State Electricity
Board v. Jarina Bee 2003 (1) Suppl. SCR 535 =(2003) 6 c
sec 141 - relied on.
Indian Railway Construction Co. Ltd. v. Ajay Kumar 2003
. (2) SCR 387 = (2003) 4 SCC 579; Kendriya Vidya/aya
Sangathan v. S.C. Sharma 2005 (1) SCR 374 =(2005) 2 SCC
363; -General Manager, Haryana Roadways v. Rudhan Singh
D
2005 (1) Suppl. SCR 569 = (2005) 5 sec 591; U.P. State
Brassware Corporation Ltd. v. Uday Narain Pandey 2005 (5)
Suppl. SCR 609 = (2006) 1 SCC 479; Andhra Pradesh. State
Road Transport Corporation v. P. Jayaram Reddy 2008 (17)
SCR 1185 = (2009) 2 SCC 681; Novartis India Limited v.
E
State of West Bengal 2008 (16) SCR 918 = (2009) 3 SCC
124; Metropolitan Transport Corporation v. V. Venkatesan
2009 (12) SCR 583 = (2009) 9 sec 601; Jagbir Singh v.
Haryana State Agriculture Marketing Board 2009 (10)
SCR 908 = (2009) 15 SCC 327 - referred to.
F
**J.K. Synthetics Ltd. v. K.P. Agrawal and Another 2007
(2) SCR 60 =2007 (2) SCC 433 - disapproved.
2.3. In the case in hand, the management's decision
to terminate the appellant's service was found by the
G
Tribunal as wholly arbitrary and vitiated due to violation
of the rules of natural justice. The Tribunal further found
that the allegations levelled against the appellant were
frivolous, and after satisfying itself that she was not
gainfully employed anywhere, ordered her reinstatement
H
B
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A with full back wages. [Para 34) [50-A, B-C]
2.4. The single Judge of the High Court, while setting
aside the award of back wages by making a cryptic
observation that the appellant had not proved the factum
8 of non-employment during the intervening period, not
only overlooked the order passed by the Division Bench
in the earlier writ petition, but also r. 33 which prohibits
an employee from taking employment elsewhere. It was
not even the pleaded case of the management that during
C the period of suspension, the appellant had left the
Headquarters without prior approval of the Chief
Executive Officer and thereby disentitled her from getting
subsistence allowance or that during the intervening
period she was gainfully employed elsewhere. The single
Judge committed grave error by interfering with the order
D passed by the Tribunal for payment of back wages,
ignoring that the charges levelled against the appellant .
were frivolous and the inquiry was held in gross violation
of the rules of natural justice. The impugned order is set
aside and the order passed by the Tribunal restored. The
E management shall pay full back wages to the appellant.
[Para 35-37] [50-D-H; 51-A]
Case Law Reference:
F
2007 (2) SCR60
disapproved
para 9
1979 (1) SCR 563
relied on
para 10
1981 (1) SCR 789
relied on
para 10
1981 (3) SCR518
relied on
para 10
G
1974 (3) sec 216
relied on
para 10
2005 (5) Suppl. SCR 609
referred to
para 11
2008 (17) SCR 1185
referred to
para 11
H
2008 (16) SCR 918
referred to
para 11
I
DEEPALI GUNDU SURWASE v. KRANTl JUNIOR
9
ADHYAPAK MAHAVIDYALAYA (D.ED.)
2009 (12) SCR583
referred to
para 11
A
2009 (10) SCR 908
referred to
para 11
2000 (4) Suppl. SCR 50
relied on
para 20
2002 (1) Suppl. SCR 127 relied on
para 21
B
2003 (1) Suppl. SCR 535
relied on
para 10
2003 (2) SCR 387
referred to
para 22
2005 (1) SCR374
referred to
para 25
2005 (1) Suppl. SCR 569 referred to
para 25
c
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6767 of 2013,
From the Judgment & Order dated 28.09.2011 of the High o
Court of Bombay at Aurangabad in W.P. No. 10032 of 2010.
Gaurav Agrawal for the Appellant.
Sudhanshu S. Choudhari, Sachin J. Patil, Asha Gopalan
Nair for the Respondents.
E
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
2. The question which arises for consideration in this
F
appeal filed against order dated 28.9.2011 passed by the
learned Single Judge of the Bombay High Court, Aurangabad
Bench is whether the appellant is entitled to wages for the
period during which she was forcibly kept out of service by the
management of the school.
G
3. The appellant was appointed as a teacher in Nandanvan
Vidya Mandir (Primary School) run by a trust established and
controlled by Bagade family. The grant in aid given by the State
Government, which included rent for the building was received
H
10
SUPREME COURT REPORTS
[2013) 9 S.C.R.
A by Bagade family because the premises belonged to one of
its members, namely, Shri Dulichand. In 2005, the Municipal
Corporation of Aurangabad raised a tax bill of Rs.79,974/- by
treating the property as commercial. Thereupon, the
Headmistress of the school, who was also President of the
B Trust, addressed a letter to all the employees including the
appellant requiring them to contribute a sum of Rs.1500/- per
month towards the tax liability. The appellant refused to comply
with the dictate of the Headmistress. Annoyed by this, the
management issued as many as 25 memos to the appellant
c and then placed her under suspension vide letter dated
14.11.2006. She submitted reply to each and every
memorandum and denied the allegations. Education Officer
(Primary) Zilla Parishad, Aurangabad did not approve the
appellant's suspension. However, the letter of suspension was
0
not revoked. She was not even paid subsistence allowance in
terms of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981 (for short, 'the Rules')
framed under Section 16 of the Maharashtra Employees of
Private Schools (Conditions of Service) Regulation Act, 1977
E (for short, 'the Act').
4. Writ Petition No.8404 of 2006 filed by the appellant
questioning her suspension was disposed of by the Division
Bench of the Bombay High Court vide order dated 21.3.2007
and it was declared that the appellant will be deemed to have
F rejoined her duties from 14.3.2007 and entitled to consequential
benefits in terms of Rule 37(2)(f) of the Rules and that the
payment of arrears shall be the liability of the management.
Paragraphs 4 and 5 of that order read as under:
G
H
"4. Considering the order we intend passing it is not
necessary for us to deal with the rival contentions of the
parties. That will be for the Inquiry Committee to decide.
In view of the apprehensions expressed regarding the
inquiry being dragged on unnecessarily, it is necessary to
safeguard the interests of the petitioner as well.
DEEPALI GUNDU SURWASE v. KRANTI JUNIOR
11
ADHYAPAK MAHAVIDYALAYA (D.ED.) [G.S. SINGHVI, J.]
5. In the circumstances, Rule is made absolute in the
A
following terms.
(i)
The Inquiry Committee shall conclude the
proceedings and pass a final order on or before
31.5.2007.
B
(ii)
The petitioner shall be at liberty to have her case
represented by Smt.Sulbha Panditrao Munde.
(iii)
The petitioner/her representative shall appear, in the
first instance, before the Inquiry Committee at 11 c
a.m. on 26.3.2007- and, thereafter, as directed by
the Inquiry Committee.
(iv)
The petitioner is entitled to the benefit of Rule 37
(2) (f) of Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981, as
D
specified in paragraph 11 of the order and
judgment of the Division Bench in the case of
Hamid Khan Nayyar s/o Habib Khan v. Education
Officer, Amravati and Others (supra). The petitioner
shall be deemed to have rejoined the duties from
E
14.3.2007 and entitled to consequential benefits
that would flow out of Rule 37 (2) (f). The payment
of arrears shall be the liability of the management."
5. In the meanwhile, the management issued notice dated
F
28.12.2006 for holding an inquiry against the appellant under
Rules 36 and 37 of the Rules. The appellant nominated Smt.
Sulbha Panditrao Munde to appear before the Inquiry
Committee, but Smt. Munde was not allowed to participate in
the inquiry proceedings. The Inquiry Committee conducted ex
G
parte proceedings and the management terminated the
appellant's service vide order dated 15.6.2007.
6. The appellant challenged the aforesaid order under
Section 9 of the Act. In the appeal filed by her on 25.6.2007,
the appellant pleaded that the action taken by the management
H
12
SUPREME COURT REPORTS
[2013) 9 S.C.R.
A was arbitrary and violative of the principles of natural justice.
She further pleaded that the sole object of the inquiry was to
teach her a lesson for refusing to comply with the illegal demand
of the management.
8
7. The management contested the appeal and pleaded·
that the action taken by it was legal and justified because the
appellant had been found guilty of misconduct. It was further
pleaded that the inquiry was held in consonance with the
relevant rules and the principles of natural justice.
C
8. By an order dated 20.6.2009, the Presiding Officer of
the School Tribunal, Aurangabad Division (for short, 'the
Tribunal') allowed the appeal and quashed the termination of
the appellant's service. He also directed the management to
pay full back wages to the appellant. The Tribunal considered
D the appellant's plea that she had not been given reasonable
E
F
G
H
opportunity of hearing and observed:
"Now let us test for what purpose and for what subject
inquiry was initiated in what manner inquiry was conducted,
which witnesses have been examined and how injury was
conclude. I have already demonstrate above that starting
point against this appellant is calling upon staff members
collection of fund for payment for tax dues page 54 of
appeal memo. All the staff members have objected this
joining hands together page 58 of appeal. Fact finding
committee have submitted its report Exhibit 62. Report of
Education Officer (Primary) in regard to the proposal of
appointment of Administrator page 71. If we see issuance
of memo by Head Mistress, I observe that language which
is used to revengeful against this appellant. It seems that
attitude towards this appellant was of indecent and I also
observed that behaviour of the appellant have also
instigated Head Mistress for the same. Language is of law
standard use in the letter by imputing defamed language
and humiliation to the appellant.
..
DEEPALI GUNDU SURWASE v. KRANTI JUNIOR
13
ADHYAPAK MAHAVIDYALAYA (D.ED.) [G.S. SINGHVI, J.]
If we see memos, we can find that some memos are of
A
silly count i.e. late for 3 minutes page 95, query about the
examination page 93 to which appellant have replied that
when no examinations were held where is the question of
getting inquiry by the parents page 96. In regard to the
memo, in regard to the black dress on 15.08.2005 and
B
06.12.2005 and about issuance of show cause notice for
issuing false affidavit page 143.
We can find attitude of this Head Master towards appellant.
Three minute late is very silly ground query about
examination which was not at all held, wearing of black
C
dress during course of argument there was argument on
photograph, however, no such photograph is submitted on
record. In this regard during course of argument, it was
brought to my notice that on 15.08.2005 this appellant have
wore black colour blouse, however, she had wore white
D
sari on her person. First thing is that there is no such rule
about so called colour that it is bogus colour or this colour
is being used for protesting or otherwise. How and why
Head Mistress and Management have made issue of this
black colour blouse I cannot understand. I have gone
E
through the whole record but I do not find any circular
issued by Head Mistress by which all the staff members
have been called upon to come in dress for this function.
So in the absence of such circular, how it can be an .issue
of inquiry.
F
Another aspect is that one of the staff Vijay Gedam have
lodged appeal before this Tribunal in favour of him, this
appellant and one another staff teacher have swear
affidavit. I do not find how this issue can be a subject of
inquiry that appellant have swear false affidavit. Is Head
G
Mistress having authority to say that this appellant have
. swear false affidavit. Here I find 5 to 6 staff members have
supported this appeliant, at the same time some teachers
have also come forward this Head Mistress. They were in
H
A
B
c
D
E
F
G
H
14
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[2013] 9 S.C.R.
dilemma to whom they may favour. So over all attitude of
this Head Mistress against this appellant is revengeful with
ulterior motive to drag this appellant in inquiry proceeding.
I gone through the statement recorded of the witnesses. I
find that all the statements are general in nature and it is
repetition of statement of first witness Surajkumar
Khobragade. Nobody has made statement specifically
with date and incident. The deposition is a general
statement which is already in memos which have been
issue by the Head Mistress to the appellant.
More important in this regard that no cross examination
of witnesses by the appellant. In the statement of
witnesses, I do not find any endorsement that appellant
was absent or appellant is present, she declined to cross
examine or otherwise. These statements have been
concluded that witnesses have stated before inquiry
committee, that is all. If we read first statement of first
witnesses we can find carry forward of the statement for
other witnesses by some minor change in the statement.
One crucial aspect in regard to the proceeding is that this
Head Mistress who had issued more than 25 bulky memos
against this appellant and on whose complaint or
grievances this inquiry was initiate, have not been
examined by the inquiry committee. I am surprised that why
such a key witness is not examined. In reply this appellant
have put her grievances against Head Mistress. By taking
advantage of this Chief Executive Officer of the inquiry i.e.
Sonia Bagale called upon written explanation from Head
Mistress to cover up complaint and grievances of the
appellant. It is on 21.05.2007, page 777, 778 and 781 by
this explanation again one issues have been brought which
were not subject matter of the chargesheet. So it is serious
lacuna in this inquiry proceeding that witnesses Head
Mistress have not been examined."
DEEPALI GUNDU SURWASE v. KRANTI JUNIOR
15
ADHYAPAK MAHAVIDYALAYA (D.ED.) [G.S. SINGHVI, J.]
The Tribunal then adverted to the charges levelled against
A
the appellant and held:·
"It is also demonstrated in the course of argument that
permission was not granted as per letter dated 22.11.2006
of Education Officer. So naturally suspension of this
appellant was in question. It is another aspect that on
persuasion appellant ha.ve been paid subsistence
allowance. However, remaining subsistence allowance till
today is not paid to the appellant. So it can be another
ground for vitiating inquiry.
B
c
204(1)Mh. L.J. page 676 in case of Awdhesh Narayan K.
Singh vs. Adarsh Vidya Mandir Trust and Another, (a)
Maharashtra Employees of Private Schools (Conditions of
Service) Rules 1981, R.R. 35 and 33- Failure to obtain
prior permission of Authority under Rule 33(1) before o
suspending an employee does not affect the action of
suspension pending inquiry- If prior permission is
obtained, Rule 35(3) is attracted and the suspended
employee is entitled for subsistence allowance under the
scheme of payment through Cooperative Banks for a
period of four months after which period the payment is to
E
be made by the Management. If an employee is
suspended without obtaining prior approval of the
Education Authority, payment of subsistence allowance for
entire period has to be made by the Management. So if
considered all these aspects, we can find that appeal
deserves to be allowed by quashing inquiry held against
appellant."
F
The Tribunal finally took cognizance of the fact that the
appellant was kept under suspension from 14.11.2006 and she
G
was not gainfully employed after the termination of her service
and declared that she is entitled to full back wages. The
operative portion of the order passed by the Tribunal reads as
under:
H
A
B
c
D
E
16
SUPREME COURT REPORTS
[2013] 9 S.C.R.
"(1) Appeal is allowed.
(2) The termination order dated 15.06.2007 issued by
Respondent on the basis of inquiry report is hereby
quashed and set aside.
(3) The appellant is hereby reinstated on her original post
and Respondents are directed to reinstate the appellant
in her original post as Asst. Teacher Nandanvan
Vidyamandir (Primary School), Aurangabad with full back
wages from the date of termination till date of
reinstatement.
(4) The Respondent Nos.1 to 3 are hereby directed to
deposit full back wages i.e. pay and allowances of the
appellant from the date of her termination till the date of
her reinstatement in the service, within 45 days in this
Tribunal from the date of this order.
(5) The appellant will be entitled to withdraw the above
amounts from this Tribunal immediately after it is
deposited."
9. The management challenged the order of the Tribunal
in Writ Petition No. 10032 of 2010. The learned Single Judge
examined the issues raised by the management in detail and
F expressed his agreement with the Tribunal that the decision of
the management to suspend the appellant and to terminate her
service were vitiated due to violation of the statutory provisions
and the principles of natural justice. While commenting upon
the appellant's suspension, the learned Single Judge observed:
G
H
"It has also come on record that the appellant was
suspended by suspension letter dated 14.11.2006. The
appellant made representation to the Education Officer.
The Education Officer refused to approve suspension of
the appellant as per his letter dated 22.11.2006. From
careful perusal of the material brought on record, I do not
DEEPALI GUNDU SURWASE v. KRANTI JUNIOR
17
ADHYAPAK MAHAVIDYALAYA (D.ED.) [G.S. SINGHVI, J.]
find that, there arose extraordinary situation to suspend
A
services of the appellant without taking prior approval of
the Education Officer, as contemplated under Rules. No
doubt, the Management can suspend services of an
employee without prior approval of the Education Officer,
but for that there should be extraordinary situation.
B
However, in the facts of this case, nothing is brought on
record to suggest that there was extraordinary situation
existing so as to take emergent steps to suspend services
of the appellant without taking prior approval of the_
Education Officer (Primary), Zilla Parishad, Aurangabad. c
It is also not in dispute that the Education Officer declined
to approve suspension of the appellant as per his letter
dated 22.11.2006.
Therefore, taking into consideration facts involved in the
present case, conclusion is reached by the School Tribunal
D
that the Management of the petitioner-school/Institution is
dominated by the members of Bagade family."
The learned Single Judge then considered the finding
recorded by the Tribunal that the Inquiry Committee was not
E
validly constituted and observed:
"In the present case, admittedly petitioners herein did not
file any application or made prayer for reconstituting the
inquiry committee and to proceed further for inquiry by
newly reconstituted committee. On the contrary, from
reading the reply filed by the petitioners herein before the
School Tribunal, it is abundantly clear that the petitioners
went on justifying constitution of the Committee and stating
F
in the reply that no fault can be attributed with the
constitution of the Committee. Therefore, in absence of G
such prayer, the School Tribunal proceeded further and
dealt with all the charges which were levelled against the
appellant i.e. Respondent No.3 herein. Therefore, in my
opinion, further adjudication by the Tribunal on merits of the
matter cannot be said to be beyond jurisdiction or powers
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18
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A
of the School Tribunal. In the facts of this case, as it is
apparent from the findings recorded by the School Tribunal,
that as the case in hand is a case of victimization and
petitioner Management as well as the Inquiry Committee
having joined hands against the delinquent right from the
B
beginning, no premium can_~e put over the action of the
petitioner-Management and Inquiry Committee who threw
the principles of natural justice in the air. It would be a
travesty of justice, in these circumstances, to-- allow the
petitioner-Management to once again hold inquiry in such
c
a extreme case."
However, the learned Single Judge set aside the direction
given by the School Tribunal for payment of back wages by
relying upon the judgments in J.K. Synthetics Ltd. v. K. P.
D Agrawal and Another (2007) 2 SCC 433 and Zilla Parishad,
Gadchiroli and Another v. Prakash slo Nagorao Thete and
Another2009 (4) Mh. L. J. 628. The observations made by the
learned Single Judge on this issue are extracted below:
E
F
G
H
"Bare perusal of above reproduced para 40 of the judgment
of the School Tribunal would make it abundantly clear that,
the advocate for the appellant, in the course of arguments,
argued that the appellant was kept under suspension from
14.11.2006 till the appeal is finally heard. It was argued
that the appellant was not gainfully employed anywhere
during the period of suspension and termination and
therefore, she is entitled to back wages from the date of
her suspension. The Tribunal has observed that no rebuttal
argument by other side. Therefore, it appears that, the
School Tribunal has considered only oral submissions of
the Counsel appearing for the appellant, in the absence
of any specific pleadings, prayers and evidence for
payment of back wages. There was no application or
pleadings before the School Tribunal on oath by the
appellant stating that she was not gainfully employed from
the date of suspension till reinstatement. Therefore, in my
DEEPALI GUNDU SURWASE v. KRANTI JUNIOR
19
ADHYAPAK MAHAVIDYALAYA (D.ED.) [G.S. SINGHVI, J.j
considered opinion, finding recorded by the Tribunal in
A
clauses 3 to 5 of the operative order, in respect of
payment of back wages, cannot be sustained, in the light
of law laid down by this Court and Honourable Supreme
Court in respect of payment of back wages."
10. Learned counsel for the appellant relied upon the
8
judgments of this Court in Hindustan Tin Works Private
Limited v. Employees of Hindustan Tin Works Private Limited
(1979) 2 SCC 80, Surendra Kumar Verma v. Central
Government Industrial Tribunal-cum-Labour Court, New Delhi
(1980) 4 SCC 443, Mohan Lal v. Management of Bharat C
Electronics Limited (1981) 3 SCC 225, Workmen of Calcutta
Dock Labour Board and Another v. Employers in relation to
Calcutta Dock Labour Board and Others (1974) 3 SCC 216
and argued that the impugned order is liable to be set aside
because while the appellant had pleaded that she was not
D
gainfully employed, no evidence was produced by the
management to prove the contrary. Learned counsel submitted
that the order passed by the Tribunal was in consonance with
the provisions of the Act and the Rules and the High Court
committed serious error by setting aside the direction given by
E
the Tribunal to the management to pay back wages to the
appellant on the specious ground that she had not led evidence
to prove her non-employment during the period she was kept
away from the job. He emphasized that in view of the embargo
contained in Rule 33(3), the appellant had not taken up any
F
other employment and argued that she could not have been
deprived of full pay and allowances for the entire period c;luring
which she was forcibly kept out of job.
11. Learned counsel for the respondent supported the
impugned order and argued that the High Court did not commit
G
any error by setting aside the direction given by the Tribunal
for payment of back wages to the appellant because she had
neither pleaded nor any evidence was produced that during the
period of suspension and thereafter she was not employed
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20
SUPREME COURT REPORTS
(2013] 9 S.C.R.
A elsewhere. Learned counsel relied upon the judgments in M.P.
State Electricity Board v. Jarina Bee (2003) 6 SCC 141,
Kendriya Vidyalaya Sangathan v. S. C. Sharma (2005) 2 SCC
363, U.P. State Brassware Corporation Ltd. v. Uday Narain
Pandey (2006) 1 SCC 479, J.K. Synthetics Ltd. v. K.P.
B Agrawal and Another (supra), The Depot Manager,
A.P.S.R. T.C. v. P. Jayaram Reddy (2009) 2 SCC 681,
Novartis India Ltd. v. State of West Bengal and Others (2009)
3 SCC 124, Metropolitan Transport Corporation v. V.
Venkatesan (2009) 9 SCC 601 and Jagbir Singh v. Haryana
c State Agriculture Marketing Board and Another (2009) 15
sec 327 and argued that the rule of reinstatement with back
wages propounded in 1960's and ?O's has been considerably
diluted and the Courts/Tribunal cannot ordain payment of back
wages as a matter of course in each and every case of wrongful
0
termination of service. Learned counsel submitted that even if
the Court/Tribunal finds that the termination, dismissal or
discharge of an employee is contrary to law or is vitiated due
to violation of the principles of natural justice, an order for
payment of back wages cannot be issued unless the employee
E concerned not only pleads, but also proves that he/she was not
employed gainfully during the intervening period.
12. We have considered the respective arguments. The
Act was enacted by the legislature to regulate the recruitment
and conditions of service of employees in certain private
F schools in the State and to instill a sense of security among
such employees so that they may fearlessly discharge their
duties towards the pupil, the institution and the society. Another
object of the Act is to ensure that the employees become
accountable to the management and contribute their might for
G improving the standard of education. Section 2 of the Act
contains definitions of various words and terms appearing in
other sections. Section 8 provides for constitution of one or
more Tribunals to be called "School Tribunal" and also defines
the jurisdiction of each Tribunal. Section 9(1) contains· a non
H obstante clause and provides for an appeal by any employee
DEEPALI GUNDU SURWASE v. KRANTI JUNIOR
21
ADHYAPAK MAHAVIDYALAYA (D.ED.) [G.S. SINGHVI, J.]
of a private school against his/her dismissal or removal from
A
service or whose services are otherwise terminated or who is
reduced in rank. The employee, who is superseded in the
matter of promotion is also entitled to file an appeal. Section
10 enumerates general powers and procedure of the Tribunal
and Section 11 empowers the Tribunal to give appropriate relief
B
and direction. Section 12 also contains a non obstante clause
and makes the decision of the Tribunal final and binding on the
employee and the management. Of course, this is subject to
the power of judicial review vested in the High Court and this
Court. Section 16(1) empowers the State Government to make c
rules for carrying out the purposes of the Act. Section 16(2)
specifies the particular matters on which the State Government
can make rules. These include Code of Conduct and
disciplinary matters and the manner of conducting inquiries.
13. Rule 35 of the Rules empower the management to
D
suspend an employee with the prior approval of the competent
authority. The exercise of this power is hedged with the
condition that the period of suspension shall not exceed four
monthswithout prior permission of the concerned authority. The
suspended employee is entitled to subsistence allowance under
E
the scheme of payment (Rule 34) through Co-operative Bank
for a period of four months. If the period of suspension exceeds
four months, then subsistence allowance has to be paid by the
management. In case, the management suspends an employee
without obtaining prior approval of the competent authority, then
F
it has to pay the subsistence allowance till the completion of
inquiry. A suspended employee can be denied subsistence
allowance only in the contingencies enumerated in clauses (3)
and (4) of Rule 33, i.e., when he takes up private employment
or leaves headquarter without prior approval of the Chief G
Executive Officer. .
14. For the sake of reference, Sections 2(7), 9, 10, 11 and
16 of the Act are reproduced below:
"2(7) "Employee," means any member of the teaching
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SUPREME COURT REPORTS
[2013) 9 S.C.R.
A
and non teaching staff of a recognized school and includes
Shikshan Sevak;
B
c
D
E
F
G
H
9.