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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.           670    OF 2016 (ARISING OUT OF SLP (C) NO.3816 OF 2015)

EDUCATIONAL SOCIETY, TUMSAR AND  ORS.

.....APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA AND ORS. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Leave granted.

2. This appeal raises a short but significant question of law. Appellants

herein is a society running a school.  Said school is an aided institution

which  is  provided  aid  to  the  extent  of  100%  by  the  State  of

Maharashtra  (respondent  No.1).   The  aid  includes  the  element  of

salaries that is payable to the Teachers and other staff employed by

the school.   

3. Services  of  respondent  No.  4  were  terminated  by  the

appellants-society.   This  termination  order  was  challenged  by

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respondent No. 4 by filing an appeal in the School Tribunal, Nagpur

which  was  pleased  to  set  aside  the  termination  with  direction  to

reinstate  respondent  No.  4  and  also  pay  back  wages  for  the

intervening period.  Order of the School Tribunal was upheld by the

High Court  as  the appellants  and respondent  No.  4  entered into  a

settlement whereby the appellants agreed to abide by the same.    As

per  the direction of  the School  Tribunal,  which has attained finality,

respondent No. 4 is to be paid back wages. The issue is as to who is

to ultimately bear this financial burden, namely, whether appellants are

supposed to pay the back wages to respondent No. 4 out of its own

pocket or is it to come from the coffers of the State which is granting

financial aid to the school.   

4. The detailed factual backdrop in which the said issue has come up for

discussion needs to be traversed at this stage:

Appellant No. 1 Educational  Society, Tumsar is the registered

society, registered in the year 1983 under the Societies Registration

Act.  It is registered in the year 1983 under the provisions of Bombay

(now Maharashtra) Public Trusts Act, 1950 having its registration PTR

No. F-896(B).  The trust is formed with object of spreading education.

Appellant No. 1 Society is running appellant No. 3 school which is on

100% grant in aid by the Government of Maharashtra.  Appellant No. 1

initiated departmental enquiry against its employee, respondent No. 4,

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who was working on the post  of  the Assistant  Teacher in appellant

No.3 school and was also acting as Incharge Headmaster for a short

period.   Respondent  No.  4  was  terminated  vide  order  dated

20.09.2010.  Respondent No. 4 was appointed on sanctioned post as

per  the  provisions  of  Section  5  of  the  Maharashtra  Employees  of

Private  Schools  (Conditions  of  Service)  Regulation  Act,  1977  and

Rules, 1981.   

On  28.04.2011,  the  termination  order  was  challenged  by  the

respondent  No.  4 before the School  Tribunal,  Nagpur.  The School

Tribunal, Nagpur was pleased to set aside the said termination order in

Appeal No. A-56/2010 with a direction to reinstate the respondent No.

4 and pay back wages.  The relevant portion of the direction given by

the School Tribunal in this behalf reads as under:

“ORDER

1. The appeal is allowed.

2. The termination order of  appellant dated 20.09.2010 issued by the respondent No. 2 as President  of  respondent  No.  1  is  hereby quashed and set aside being illegal and contrary to law.

3. The respondents no. 1 and 3 are hereby directed to reinstate the appellant as Assistant Teacher in the said college with full back wages and all  service benefits within one month from the date of order.

In the consequences, the respondent nos. 1  and  3  shall  pay  the  cost  of  Rs.5,000/-  to appellant and bear its own costs.”

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Respondent Nos. 1 to 3 in the said appeal are the appellants herein.

In the appeal filed by respondent No. 4 herein, the Education Officer

(Secondary),  Zila  Parishad,  Nagpur  was  also  impleaded  as  4th

respondent.  However, there is no specific direction to respondent No.

4 to pay the aforesaid back wages.   

On 02.06.2011, the appellants challenged the said order of the

School Tribunal in Writ Petition No. 2704/2011.  During the course of

hearing of the writ petition, in view of the respondent No.4's retirement,

appellants settled the matter with respondent No. 4 and filed a Joint

Pursis  dated  28.06.2011  based  on  out  of  court  settlement  and

respondent No. 4.  The said Joint Pursis, which was taken on record

and petition disposed of in terms thereof by the High Court, reads as

under:

“JOINT PURSIS

The humble Petitioners and  Respondent no. 1 most respectfully submit as under:-

That the Petitioner Management agree to reinstate the Respondent No.1/ appellant on the post of  Assistant Teacher in compliance of  the judgment  and  order  dated  28.4.2011  at Annexure  P1  passed  by  the  learned  School Tribunal,  Nagpur  w.e.f.  29.6.2011.   The Respondent No. 1 is satisfied with the judgment and  order  passed  by  the  learned  School Tribunal,  Nagpur and he will  not  challenge the same in future.   

Hence, this pursis.

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(M.B. Nikhade) (S.M. Padole) Petitioners Respondent No. 1 Working President The Educational Society, Tumsar

(V.T. Bhoskar) (A.Z. Jibhakate) Counsel for Petitioner  Counsel for Resp No.1”

It  is  clear  from the above that  even this  agreement  was arrived at

between the appellants  and respondent  No.  4  herein,  to  which the

Education Officer was not a party.

On  03.09.2011,  the  appellants  reinstated  respondent  No.  4  and

forwarded the proposal of payment of back wages of respondent No. 4

to respondent No. 3 herein i.e. Education Officer.  Respondent No. 3

returned the same vide letter dated 03.09.2011 with the remarks that

management has to pay the back wages.  Since back wages have not

been paid, on 03.10.2011 respondent No. 4 filed Criminal Complaint

No.190 of 2011 in the Court of Judicial Magistrate, First Class, Tumsar,

which  is  still  pending.   The  appellants  made  representations  to

respondent No. 3 for payment of  back wages of  respondent No. 4.

However, respondent No. 3 refused to make payment of back wages,

but  released  the  retirement  benefits,  pension  etc.  in  favour  of

respondent No. 4.  At this stage, the appellants filed Writ Petition No.

1014 of 2013 for direction to the respondents to pay back wages of

respondent  No.  4.   The same was permitted to  be  withdrawn vide

order dated 05.09.2013 to make further representation in accordance

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of Government Resolution dated 14.03.1978.   

5. The appellants made further representations which were also rejected

by the respondent-authorities.  In these circumstances, the appellants

again approached the High Court by filing Writ Petition No. 5182/2014

which has been dismissed by the impugned order dated 10.10.2014.

The High Court  has dismissed the said writ  petition,  giving two fold

reasons which are:

(a)  The Education Tribunal had specifically directed the appellants to pay

the back wages to respondent No. 4.  That order was challenged by

the  appellants  in  the writ  petition  but  the  matter  was  compromised

between the appellants and respondent No. 4 whereby, again, it is the

appellants who agreed to pay the back wages.  In view of these clear

orders of the Court, the liability could not be fastened on the Education

Officer.

(b) The  appellants  had  challenged  the  order  of  the  Education  Officer

refusing to pay the back wages by filing writ petition earlier which was

withdrawn  without  seeking  any  liberty  to  file  a  fresh  petition.

Therefore, second petition on the same cause with same prayer was

not  permissible  in  view  of  the  judgment  of  this  Court  in  Sarguja

Transport Service  v.  State Transport Appellate Tribunal, Gwalior

and others1.   

1 AIR 1987 SC 88

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6. It is in this backdrop that the issue formulated above has to be decided

in the present appeal.

7. Learned counsel for the appellants contended that the Government of

Maharashtra  had  passed  Government  Resolution  dated  14.03.1978

which  prescribes  that  in  case  an  employee  of  an  aided  school  is

terminated by the Management, but his termination is subsequently set

aside in appeal by the competent authority, the Government would pay

the back wages to the said employee subject to the satisfaction of two

conditions, namely, that no other person has been appointed on the

post during the intervening period and payment of back wages would

not result in additional financial burden to the Government.  On that

basis,  it  is  argued  that  the  financial  burden  is  to  be  borne  by  the

Government.   He submitted that,  no doubt,  the Tribunal  specifically

passed the order directing the appellant to pay the salary.  If general

rule  is  applicable,  this  direction  may  not  be  of  much consequence

inasmuch it is the appellant who is supposed to pay the back wages to

respondent No. 4 as the employer employee relationship is between

the appellant and respondent No. 4.  The learned counsel argued that

the issue is as to whether appellant is entitled to recover this amount

from the Government on the ground that the Government is providing

100%  aid.   The  Government  of  Maharashtra  had  itself  passed

Resolution dated 14.03.1978 in this behalf particularly taking care of

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such situations.   A reading  of  this  Resolution  would  show that  the

precise question which drew the attention of the Government was as to

whether  an  employee  whose  services  was  terminated  and  who  is

reinstated by the Management in pursuance of the final decision of the

competent appellate authority of the Department could be paid their

arrears  of  salary  and  allowances  by  the  Department  itself.   After

considering this problem, the Government decided to pay the same

which can be discerned from the reading of para 2 of the aforesaid

Resolution dated 14.03.1978.  To quote:

“2.  Government is pleased to direct as follows:-

A)   Where  the  management  of  a non-Government Sec. School has reinstated the employee  in  pursuance  of  the  order  of  the Competent  Appellate  Authority  of  the Department  (issue on a representation/ appeal made  by  the  aggrieved  employee  or  the management, as the case may be), if  his past arrears of salary and allowances, or any portion thereof,  relating to the period from the date of termination of his service (which was held to be wrongful by the competent appellate authority of the Department) till the date of his reinstatement have remained to be paid to him, these should be  directly  paid  by  the  Education Officer/Educational Inspector under the Scheme of payment of salary and all allowances through Cooperative  Banks'  in  all  such  cases,  no  cut should be applied to the non-salary grant due to the  school  if  all  the  following  conditions  are fulfilled.

i)   Salary  and  allowances  of  the  substitute,  if any, appointed by the Management in place of the employee whose services were terminated, have not been paid by the Department.

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ii)   That  the payment  of  due arrears of  salary and allowances of the employee who has been reinstated  would  not  involve  any  additional expenditure to Government over and above the expenditure which would in any case have been incurred on the salary etc. of the total teaching and non-teaching staff admissible to the school on the basis of the total teaching work-load and other  norms  prescribed  in  that  behalf  by  the Government.”

It  is  further  submitted  that  since  the  school  run  by  the  appellants

society is 100% aided institution, therefore, burden of back wages of

respondent No. 4, which is nothing but the salary for the intervening

period, should fall on the Government.

8. Learned  counsel  for  the  official  respondents,  on  the  other  hand,

submitted that Government Resolution dated 14.03.1978 is no longer

valid as thereafter the Legislature enacted the Maharashtra Employees

of  Private  Schools  (Conditions  of  Service)  Regulation  Act,  1977

(hereinafter  referred to as the 'Act')  which became operational  from

20.03.1978.  He submitted that since the position is governed by the

provisions  of  the  aforesaid  Act,  which  are  statutory  in  nature,  the

aforesaid  Government  Resolution  dated  14.03.1978  loses  its  force.

He further submitted that in any case that Government Resolution is

applicable and merely because the school  is 100% aided institution

would  not  make  any  difference  on  the  facts  of  this  case  wherein

specific direction was given by the Tribunal to the appellant society to

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make the payment of back wages after recording a finding that the

termination order was without jurisdiction.   

9. We have considered the aforesaid submissions of the learned counsel

for  the  parties  and  have  gone  through  the  statutory  provisions.   It

cannot be denied that as per normal principle, whenever a terminated

employee  of  an  aided  school  challenges  the  termination  and

termination is held to be illegal by a competent judicial forum/Court and

order is passed for payment of back wages etc., the Government is

supposed to bear the said burden.  The reason for the same is that

such back wages or any other payment are in the nature of salary for

the intervening period or other compensation in lieu thereof which is to

be paid to the employee who would have earn these benefits had he

remained  in  service.   In  that  eventuality,  obviously,  the

Government/Education Department would have paid those benefits in

terms of financial aid provided to such a school. However, if there is a

specific  provision  contained  in  any  statute  which  contains  contrary

position, then such provision would prevail upon the aforesaid general

rule.  Likewise, if there is any administrative order which is contrary to

the aforesaid general rule, the said administrative order shall prevail as

in that situation, it would be treated that the aid is given subject to the

conditions contained in such administrative order.

10. Insofar as present case is concerned, we are of the opinion that it is

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not  necessary  to  go  into  the  issue  as  to  whether  Government

Resolution dated 14.03.1978 is no more valid or whether provisions of

the  Act  or  Rules  are  contrary  to  the  aforesaid  Resolution  and,

therefore,  would  govern  the  field.   For  the  reasons  recorded

hereinafter, we find that the manner in which action was taken by the

appellants against respondent No. 4 and the findings of the Tribunal

thereupon,  it  is  the  appellants  who  are  obligated  to  pay  the  back

wages to respondent No. 4.  We find that in the peculiar facts of the

present case, the School Tribunal consciously put the burden of paying

back wages of respondent No. 4 upon the appellant school authorities.

It may be worth noting that an aided school is bound to follow the dictat

of  the  relevant  provisions  of  applicable  rules  etc.  for  conduct  of

Departmental  enquiries and termination of  services of  an employee

present  thereto.   In  the  instant  case,  the  concerned  rules  are

Maharashtra  Employees  Private  School  Rules,  1981  (hereinafter

referred  to  as  the  'Rules')  and the  concerned provisions  applicable

were the Act, 1977 (which came into force from 20.03.1978, as noted

above).  The School Tribunal while holding the termination to be illegal

gave a specific finding to the effect that appellant No. 2, who initiated

the enquiry, was not lawfully empowered to do so without the decision

of  the  Enquiry  Committee  being  supported  by  the  Managing

Committee. Issues No. 1 and 2 framed in this behalf were specifically

decided against the appellants.  It was further found that no Enquiry

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Committee  as  per  the  Rules  was  constituted.   The  findings  of  the

School Tribunal are also to the effect that the mandatory provisions of

law were not followed.  It is, therefore, a case where appellants acted

without jurisdiction and without adhering to the provisions of the Act

and the Rules.  Had the provisions of Rules been followed, that would

have initiated participation of the representatives of the Government in

the decision making process right from decision to initiate the enquiry

to  the  dismissal  of  respondent  No.  4.   This  would  have  led  to  a

situation where the State Government/Education Officer would have

given  its  imprimatur  to  the  entire  proceedings  including  order  of

termination of respondent No. 4.  Had termination order been set aside

under such circumstances, it would have amounted to setting aside the

order  of  the   Government  making  the  Government  responsible  for

payment  of  back wages,  as the act  of  termination,  found ultimately

illegal,  would  have  been  with  the  blessings of  the

Government/Education Officer.  However, in the present case, what is

found is that the State Government/Education Officer had no role to

play  in  passing  the  order  of  termination  and the  school  authorities

acted  without  jurisdiction  thereby  transgressing their  powers  to

terminate.  Specific findings to this effect are recorded by the School

Tribunal.   For  these  reasons,  even  when  Education  Officer  was

impleaded as a respondent in the appeal filed by respondent No. 4, the

School Tribunal consciously did not give any direction for payment of

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these back wages by the Education Department.   

11. For the aforesaid reasons,  we are not  inclined to interfere with the

orders passed by the High Court in the facts of the present case.  The

appeal is, thus, devoid of any merit and accordingly dismissed.   

.............................................J. (A.K. SIKRI)

.............................................J. (ABHAY MANOHAR SAPRE)

NEW DELHI; FEBRUARY 01, 2016.

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