Pandurang Parshuram Tapre Vs. School Tribunal, Amravati and Aurangabad Division and ors. - Court Judgment

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(a) maharashtra employees of private schools (conditions of service) regulation act, 1977 - section 11(2) - powers of school tribunal - termination of services of the employee - tribunal setting aside the departmental enquiry against the employee, retiring him from services without backwages - tribunal justified in not awarding backwages in the facts of the case.;the school tribunal was justified in departing from the normal practice of granting back wages though it has been held that the termination of the employee was illegal. admittedly, the petitioner/employee has retired from service on 30.6.1990, the date on which he completed 58 years. it is also not disputed that consequent upon the order passed by the school tribunal, the employee has been made to retire from 1.1.1989. therefore, the position that emerges from the record is that the employee did not work in the school for the period 1.1.1989 to 30.6.1999 and in such circumstances this court is of the considered opinion that the school tribunal was perfectly justified in not directing the management to pay the hack wages for the period 1.1.1989 to 30.6.1999.;(b) maharashtra employees of private schools (conditions of service) regulation act, 1977 - section 11(2) - departmental - enquiry - president of the management himself the enquiry officer - no person can be judge against his own interest - school tribunal holding departmental enquiry itself vitiated - justified - no interference by high court.;the school tribunal has rightly appreciated the facts and circumstances and recorded finding that the president of the education society himself participated in the departmental enquiry held against the employee. the school tribunal was perfectly justified in observing that the no person can be judge against his own interest and in these circumstances the school tribunal has clearly recorded the finding that the departmental enquiry itself is vitiated. no case has been made out for interference into the said order at the behest of the management. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - the school tribunal, therefore, concluded the point by saying that the enquiry is vitiated because the president, cannot perform the function of the judge as well as that of the prosecutor at the same time and in such a situation the proceedings of the enquiry committee are vitiated. therefore, it cannot be said that the school tribunal has acted without jurisdiction in exercise of its powers and, therefore, the school tribunal was perfectly justified in omitting the directions to pay the back wages. it is also not disputed that consequent upon the order passed by the school tribunal, the employee has been made to retire from 1.1.1989. therefore, the position that emerges from the record is that the employee did not work in the school for the period 1.1.1989 to 30.6.1999 and in such circumstances this court is of the considered opinion that the school tribunal was perfectly justified in not directing the management to pay the back wages for the period 1.1.1989 to 30.6.1999. consequently, this court does not find any merit in the petition filed by the employee, and therefore, stands dismissed. the school tribunal was perfectly justified in observing that the no person can be judge against his own interest and in these circumstances the school tribunal has clearly recorded the finding that the departmental enquiry itself is vitiated.s.t. kharche, j.1. in both these petitions, common questions are involved and, therefore, they can be conveniently disposed of by this judgment.2. by invoking the writ jurisdiction of this court under articles 226 and 226 of the constitution of india, the petitioner/employee has filed w.p. no. 2334/91 whereas w.p. no. 2862/91 has been filed by the management challenging the order dated 29.8.1991 passed by the school tribunal in appeal no. 155 of 1988-a, whereby it held that the departmental enquiry started against the petitioner/employee was vitiated and, therefore, the order of termination dated 5.12.1988 was set aside. the school tribunal directed that the employee be treated to have been retired from the service with effect from 1.1.1989 without payment of back wages for the period from 1.1.1989 till the date of his superannuation, i.e. 30.6.1999.3. brief facts are as under:the petitioner/employee was appointed as an assistant teacher some time in june, 1964 and thereafter he was appointed as head master of the school on 1.7.1970. he was suspended on some charges on 3.12.1976 and thereafter his services were terminated by the order dated 30.5.1977. the employee had filed an appeal before the deputy director of education which came to be allowed and the deputy director of education directed the reinstatement of the petitioner with back wages vide order dated 11.8.1977. the management being aggrieved by that order, filed appeal before the director of education as per the secondary schools code. the appeal came to be dismissed on 20.1.1978 and thereafter the employee was reinstated. then the statements of the allegations were served twice and thereafter after receiving the reply from the employee, the charge-sheet dated 22.8.1988 was served on him. after holding the departmental enquiry the employee was terminated on 7.12.1988. the employee being aggrieved by this order of termination challenged it before the school tribunal. the appeal came to be allowed by setting aside the order of termination and with the direction that the employee shall be retired with effect from 1.1.1989. this order of the school tribunal is under challenge in these two writ petitions.4. mr. manohar, learned counsel, for the employee contended that the school tribunal after hearing the employee and the management recorded finding that the president of the education society conducted the examination-in-chief of his own witnesses as also cross-examined the witnesses on behalf of the petitioner/employee. he contended that the president of the education society took active part in the proceedings of the departmental enquiry and acted as a prosecutor. the school tribunal, therefore, concluded the point by saying that the enquiry is vitiated because the president, cannot perform the function of the judge as well as that of the prosecutor at the same time and in such a situation the proceedings of the enquiry committee are vitiated. mr. manohar further contended that once it is held that the enquiry has been vitiated then the school tribunal ought to have granted the back wages, but instead directed that the petitioner/employee should be treated to have retired from service with effect from 1.1.1989 and this has resulted into miscarriage of justice. he further contended that the school tribunal ought to have considered this aspect of the matter and ought to have directed the management to pay the back wages and allowances for the period 1.1.1989 to 30.6.1999, the date on which the petitioner has retired on superannuation. he further contended that once the termination is found to be illegal, consequential order of grant of back wages must follow unless there are reasons justifying a departure from the normal order and if the appellant is not gainfully employed elsewhere during the period of termination, back wages from the date of termination till reinstatement will have to be paid. in support of these submissions, he relied on the decision of supreme court in manorama verma (smt.) v. state of bihar and ors. .5. mr. adkar, learned counsel, for the management contended that the order of the school tribunal is not in consonance with the facts and legal position. he contended that sub-section (2) of section 11 of the maharashtra employees of private schools (conditions of service) regulation act, 1977 (for short m.e.p.s. act) lays down that where the tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law (including rules of 1981), contract or conditions of service for the time being in force or otherwise illegal or improper, the tribunal may set aside the order of the management, partially or wholly, and direct the management to do any of the things as mentioned in clauses (a) to (f) of sub-section (2) of section 11 of the m.e.p.s. act. the school tribunal instead of directing reinstatement, ordered that the employee will have to be treated as retired from 1.1.1989 and also directed the management to forward the pension papers of the employee to the concerned authorities with further direction that, the provident fund, gratuity etc. shall be paid within a period of three months to the employee. the employee has not pointed out as to how can it be said that the respondent no. 1 school tribunal has acted illegally or without jurisdiction and. therefore, it cannot be said that the school tribunal has acted without jurisdiction in exercise of its powers and, therefore, the school tribunal was perfectly justified in omitting the directions to pay the back wages. the learned counsel further contended that, though the employee has been retired on attaining superannuation on 30.6.1999, he actually did not work in the school for the period from 1.1.1989 to 30.6.1999 in consequence of the order passed by the school tribunal by which the petitioner has been already retired from service with effect from 1.1.1989.6. i have given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. relevant provision of sub-section (2)(f) of section 11 of the m.e.p.s. act contemplates thus:11. (1) ...(2) ...(a) ...(b) ...(c) ...(d) ...(e) ...(f) to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case.7. in manorama's case (cited supra), it has been held that once the termination is found to be illegal consequential order of grant of back wages must follow unless there are reasons justifying a departure from normal order provided that the employee was not gainfully employed elsewhere during the period of termination and, as such, would be entitled to the back wages from the date of termination till reinstatement. the supreme court was dealing with the service law and specifically observed in para 4 as under :we do not see any justification for the high court not allowing the appellant back wages alter it came to the conclusion that the termination was illegal. ordinarily, the consequential order of grant of back wages must follow, unless there are reasons on record which would justify a departure from the normal order. we do not see any reasons on record to come to the conclusion that the appellant was not entitled to back wages. there is also nothing on record to show that during the period she was out of service, she was gainfully employed elsewhere. in the circumstances we allow this appeal and set aside that part of the high court's order by which the appellant was denied back wages and award her back wages from the date of termination of service till she was reinstated in service under the impugned order of the high court. the appellant will be paid her back wages within three months from today. there will be no order as to costs.8. this court may usefully refer the decision of the supreme court in the case of m.p. state electricity board v. jarina bee (smt.) : (2003)iiillj244sc wherein it is held in para 7 as under:in p.g.i. of medical education and research v. raj kumar (2001) 2 scc 54 : air. 2001 sc 479 : 2001 lab. i.c. 476 : 2000 (i) l.l.j. 546 this court found fault with the high court in setting aside the award of the labour court which restricted the back wages to 60% and directing payment of full back wages. it was observed thus: (scc p. 57, para 9)the labour court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. the finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the tribunal or the labour court. it is not for the high court to go into the factual aspects of the matter and there is an existing limitation on the high court to that effect.again at para 12, the court observed: (scc p. 58)payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no strait-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety.9. on close scrutiny it would reveal that such is not the present case. there are reasons on record to show that the school tribunal was justified in departing from the normal practice of granting back wages though it has been held that the termination of the employee was illegal. admittedly, the petitioner/employee has retired from service on 30.6.1999, the date on which he completed 58 years. it is also not disputed that consequent upon the order passed by the school tribunal, the employee has been made to retire from 1.1.1989. therefore, the position that emerges from the record is that the employee did not work in the school for the period 1.1.1989 to 30.6.1999 and in such circumstances this court is of the considered opinion that the school tribunal was perfectly justified in not directing the management to pay the back wages for the period 1.1.1989 to 30.6.1999. consequently, this court does not find any merit in the petition filed by the employee, and therefore, stands dismissed.10. so far as w.p. no. 2862 of 1991 filed by the management is concerned, the contention of mr. adkar that the impugned order passed by the school tribunal is not sustainable in law, cannot be accepted for the simple reason that the school tribunal has rightly appreciated the facts and circumstances and recorded finding that the president of the education society himself participated in the departmental enquiry held against the employee. the school tribunal was perfectly justified in observing that the no person can be judge against his own interest and in these circumstances the school tribunal has clearly recorded the finding that the departmental enquiry itself is vitiated. no case has been made out for interference into the said order at the behest of the management. therefore, the writ petition filed by the management also stands dismissed. rule in both the petitions is discharged. there shall be no order as to costs.