Whether departmental enquiry will be vitiated if President Of Disciplinary Enquiry Committee Was Replaced Due To Ill Health?

 In any case, the High Court, in the impugned order, failed to take the note of doctrine of necessity. Once it is admitted, (i) that the disciplinary proceedings commenced with an Inquiry Committee of which the President was a member; and (ii) that subsequently he was replaced by someone due to ill health, the doctrine of necessity would come into play. Hence the impugned orders of the High Court and the School Tribunal are liable to be reversed.  {Para 23}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7937 of 2011

Jai Bhavani Shikshan Prasarak Mandal Vs.  Ramesh and Ors.

Hon'ble Judges/Coram:

Hemant Gupta and V. Ramasubramanian, JJ.

Author: V. Ramasubramanian, J.

Decided On: 29.03.2022

Citation: MANU/SC/0376/2022

Print Page

Whether Education officer can review his own order?

 We

find that the petitions deserve to be allowed on short

ground that by the impugned order, Respondent

Education Officer has set aside the order passed by the

earlier Education Officer. As such, the impugned order

revokes the approval granted by the earlier order passed

by the predecessor in the office of the Respondent

Education Officer. By now, it is settled principle of law

that unless the power of review is specifically or by

necessary implication provided, the authority cannot

review its own order. No doubt, if an order is obtained by

exercising fraud, it would stand vitiated. However, it is

not the case of the Respondent- Education Officer that

Petitioners have obtained their initial orders by

fraudulent means. If the earlier Education Officer had

granted approval to the Petitioners' appointment, may be

erroneously, the same cannot be made a ground to recall

the same and pass contrary order, unless a case of fraud,

misrepresentation or suppression is made out.

Particularly when most of the Petitioners have already

put in their services for 11 years, the impugned orders

would amount to penalising them for no fault on their

part.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL WRIT PETITION NO.12234 OF 2016

Vikrant Prataprao Gaikwad  Vs The State of Maharashtra 

CORAM : S. S. SHINDE,

V. G. BISHT, JJ

DATE : 28th February 2020

JUDGMENT :- (S. S. SHINDE, J.)

Citation: 2021(2) MHLJ 316

Print Page

Whether School tribunal has jurisdiction to decide a dispute relating to a private school teacher's resignation?

  In view of the aforesaid judgment of the Supreme Court

in the case of Shashi Gaur (supra), in my opinion, there can

be no doubt that once a teacher/employee of a school takes

up a case that she has been illegally removed, this aspect

very much falls within the jurisdiction of the Tribunal. The

mere fact that in determining this issue the Tribunal has

also to consider that whether or not the teacher or employee

has resigned or not cannot mean that Tribunal will have no

jurisdiction because it is only on arriving at a conclusion

that there is no valid resignation, would thereafter the

Tribunal arrive at a decision of illegal removal of a

teacher/employee of a school. Surely, a teacher/employee

who is illegally removed, will naturally approach the

Tribunal as per the ratio of the Supreme Court in the case

of Shashi Gaur (supra), and surely the defence which is laid

out by the school to justify the action of the school would

not mean that the issue will not remain that of removal of

the teacher/employee from the school. In fact, it is reiterated

that it is because of the assertion of the respondent no. 1

that she has been illegally removed from the school, and

which case has been accepted by the Tribunal, that the

impugned judgment has been passed in favour of

respondent no. 1 and against the petitioner.”{Para 4}

22. In fact in the case of Daya Nand (supra) the Court was confronted

with the question of maintainability of an appeal before the Tribunal

where the Petitioner had resigned and even in that context the Court held

that since resignation was one of the modes of cessation of service, it

would be within the purview of the Tribunal under Section 8(3) of the

Act to adjudicate the issue. In a recent judgment in GD Goenka Public School and Ors. vs. Vinod Handa and Ors. 262 (2019) DLT 154, a Coordinate Bench of this Court has taken a similar view and relegated the Petitioner to the remedy of an appeal before the Tribunal, as the challenge was to an order of resignation.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 W.P.(C) 6975/2020 and CM Nos.23831/2020 and 23832/2020

SANDHYA BINDAL  Vs  STATE OF NCT OF DELHI 

CORAM:

HON'BLE MS. JUSTICE JYOTI SINGH

Pronounced on: 24.11.2020

Print Page

Whether the employer can hold an employee guilty for sexual harassment in departmental enquiry despite the pendency of criminal prosecution?

What emerges from the record is:

(a) There were two FIRs filed pursuant to reporting that Respondent No.1

was guilty of objectionable behavior with adolescent girl students in the

school. In both these FIRs the investigation was undertaken and chargesheets

stand filed. Thus, prima facie, the allegations made in the FIR were

found sustainable in police investigation and Respondent No.1 is presently

accused of having committed said offences.

(b) Pursuant to FIR bearing CR No.24 of 2014 Respondent No.1 was

arrested and remained in custody for about seven days.

(c) During the present inquiry 12 witnesses were examined out of whom five witnesses were girls studying in the school.

It was thus not just two girl students, pursuant to whose complaint the

crime was registered against Respondent No.1, but there were other students

as well. Some parents had also gone to the extent of levelling allegations

against Respondent No.1. The conclusion by the Convener in the report that

the charges were sensitive and that the case called for strict action, was

absolutely correct. On the other hand, the reports of the Nominee of

Respondent No.1 and the State Awardee Teacher not only show complete lack

of sensitivity but they also got bogged down unnecessarily by a question

whether any action on their part would amount to contempt of court or not. It

is well settled that a departmental proceeding and proceedings in a criminal

court are completely different. The purpose is different, the standard of proof

is different and the approach is also different. The initiation of the process in

a departmental proceeding, specially on charges with which we are concerned

in the present matter can never be said to be amounting to contempt of court

even if the criminal proceedings were pending. The allegations made against

Respondent No.1 were of such level and dimension that an immediate action

on the departmental front was required to be undertaken and such action by its

very nature had to be completely independent. Whether any criminal trial

was pending or not would not be having any bearing on the pending issue

before the Inquiry Committee. We have, therefore, no hesitation in observing

that the approach of the Nominee of Respondent No.1 and of the State Awardee Teacher was completely wrong and unsustainable.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3456 OF 2019

THE SECRETARY, LUCY SEQUEIRA TRUST Vs  KAILASH RAMESH TANDEL AND ORS.

Author: Uday Umesh Lalit, J.

Dated: April 08, 2019.

Print Page

Whether employees of private schools are entitled to get salary as per 5th and 6th pay commission reports?

 No doubt, the conditions of service and the pay scales applicable to the teachers of secondary schools are prescribed by Schedule 'C' of the Rules of 1981. The State of Maharashtra by issuance of G.R. directed that all schools should implement the 6th Pay Commission Report and pay salary to the staff accordingly. The payment of salary and the arrears in accordance with the recommendations of 5th and 6th Pay Commission Reports are made applicable to the employees of the private schools irrespective of whether they are receiving grant-in-aid or not. In our opinion, merely because necessary amendments are not made in Schedule 'C' of the Rules of 1981 incorporating pay scales in terms prescribed by the Pay Commission reports would not be a ground to deny the benefit of the pay scales to the petitioners as per the 5th and 6th Pay Commission reports.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 242 of 2013

Decided On: 27.06.2019

Manojkumar S. Amare  Vs.  The State of Maharashtra

Hon'ble Judges/Coram:

S.C. Dharmadhikari and M.S. Karnik, JJ.

Citation: 2020(1) MHLJ 742

Print Page

When jurisdiction of civil court is not barred to try disputes relating employees of private school?

Section 9 spells out the jurisdiction of the School Tribunal to deal with the disputes between the Management and the employees. Since the Section so spells out the nature of the dispute, any dispute falling outside the scope of Section 9 could certainly be taken cognizance of by a Civil Court. The Tribunal has jurisdiction to deal with the following matters alone, as are defined in Section 9 of the Act.

1) Dismissal, 2) Removal, 3) Termination otherwise 4) Reduction in Rank, and 5) Supersession in promotion. The Tribunal's jurisdiction is restricted to above disputes only and as such if it is a dispute outside the above disputes, the civil court can certainly assume jurisdiction.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 235 of 2003

Decided On: 01.03.2007

Sanjay Gandhi Shikshan Prasarak Mandal, 
Vs.
 Nivrutti S/o Tukaram Borkar

Hon'ble Judges/Coram:
C.L. Pangarkar, J.

Citation: 2007(3) ALLMR 45

Print Page

Whether Tribunals are necessary parties to proceedings where legality of its orders are challenged?

 The tribunal is not required to defend its orders when they are challenged before the High Court in a Special Civil Application under Articles 226 and 227. The lis is between the management and a member of its teaching or non-teaching staff, as the case may be. It is for the person aggrieved to pursue his or her remedies before the tribunal. An order of the tribunal is capable of being tested in exercise of the power of judicial review under Articles 226 and 227. When the remedy is invoked, the tribunal is not required to step into arena of conflict for defending its order. Hence, the tribunal is not a necessary party to the proceedings in a Special Civil Application.

9 The Appellant instituted a proceeding before the tribunal to challenge an order of dismissal passed against him in disciplinary proceedings. Before the tribunal, the legality of the order of dismissal was in question. The lawfulness of the punishment imposed upon the Appellant was a matter for the employer to defend against a challenge of illegality in the Special Civil Application. The tribunal was not required to defend its order in the writ proceedings before the learned Single Judge. Even if the High Court was to require the production of the record before the tribunal, there was no necessity of impleading the tribunal as a party to the proceedings. The tribunal not being required in law to defend its own order, the proceedings under Articles 226 and 227 of the Constitution were maintainable without the tribunal being impleaded.

Reportable

Supreme Court of India

M.S.Kazi vs Muslim Education Society & Ors on 22 August, 2016

Bench: T.S. Thakur, A.M. Khanwilkar, D.Y. Chandrachud

Print Page

Whether non supply of copies of deposition amounts to violation of principles of natural justice in departmental enquiry?

 In the decision of the Apex Court in the case of Saroj Kumar Sinha, cited supra, the question of non-supply of the copies of documents, more particularly the statements of witnesses, was considered. Following the decision of the Apex Court in the cases of Bhagat Ram and Kashinath Dikshita, cited supra, the Court has held as under :

"34. This Court in Kashinath Dikshita v. Union of India, has clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a government servant. In that case the enquiry proceedings had been challenged on the ground that non-supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at the preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority."

"35. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows: (Kashinath Dikshita case, SCC pp. 234-35, para 10) "10. ... When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a  reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, a cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: 'What is the harm in making available the material?' and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself.

On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it." (Emphasis supplied) "36. On an examination of the facts in that case, the submission on behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations: (Kashinath Dikshita case, SCC p.236, para 12) "12. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he  would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."

(Emphasis supplied) "37. We are of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances of the case. Non-disclosure of documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant."

Bombay High Court

Vijaysingh S/O Bhaidas Patil vs Shri Dhanorkar Adhunik Gram ... on 1 October, 2015

Bench: Ravi K. Deshpande

Citation: 2016(3) MHLJ 813

Print Page

Whether employee has absolute right of representation in departmental enquiry?

The law in this country does not concede an
absolute   right   of   representation   to   an   employee   in
domestic enquiries as part of his right to be heard and
that there is no right to representation by somebody else
unless the rules or regulation  and  standing orders, if
any, regulating the conduct of disciplinary proceedings
specifically recognize such a right and provide for such
representation   (See   N.   Kalindi   v.   Tata   Locomotive   &
Engg. Co. Ltd. (AIR 1960 SC 914), Dunlop Rubber Co.
(India) Ltd. v. Workmen (AIR 1965 SC 1392), Crescent
Dyes and Chemicals Ltd. v. Ram Naresh Tripathi (1993
(2)   SCC   115),   and   Indian   Overseas   Bank   v.   Indian

Overseas   Bank   Officers'   Association   and   Another
(2001(9) SCC 540).
8. “27.  The basic principle is that an employee
has   no   right   to   representation   in   the   departmental
proceedings by another person or a lawyer unless the
Service   Rules   specifically   provide   for   the   same.   The
right  to  representation   is  available   only   to   the   extent
specifically provided for in the Rules. For example, Rule
1712 of the Railway Establishment Code provides as
under:
"The accused railway servant may present his
case with the assistance of any other railway
servant   employed   on   the   same   railway
(including   a   railway   servant   on   leave
preparatory   to   retirement)   on   which   he   is
working."
28.    The  right  to  representation,  therefore,  has  been
made   available   in   a   restricted   way   to   a   delinquent
employee.   He   has   a   choice   to   be   represented   by
another railway employee, but the choice is restricted to
the Railway on which he himself is working, that is, if he
is   an   employee   of   the   Western   Railway,   his   choice
would be restricted to the employees working on the
Western Railway. The choice cannot be allowed to travel

to other Railways.
29.   Similarly, a provision has been made in Rule 14(8)
of the Central Civil Services (Classification, Control &
Appeal) Rules 1965, where too, an employee has been
given the choice of being represented in the disciplinary
proceedings through a co­employee.
30.   In N. Kalindi's case (supra) a three­Judge Bench of
this Court observed as under : (SCR pp. 409­10) 
"Accustomed as we are to the practice in the
courts of law to skilful handling of witnesses by lawyers
specially trained in the art of examination and crossexamination
of witnesses, our first inclination is to think
that a fair enquiry demands that the person accused of
an act should have the assistance of some person, who
even if not a lawyer may be expected to examine and
cross­examine witnesses with a fair amount of skill.  We
have to remember however in the first place that these
are not enquiries in a court of law. It is necessary to
remember   also   that   in   these   enquiries,   fairly   simple
questions   of   fact   as   to   whether   certain   acts   of
misconduct were committed by a workman or not only
fall to be considered,  and straightforward  questioning
which a person  of fair intelligence and knowledge of
conditions prevailing in the industry will be able to do will

ordinarily help to elicit the truth.   It may often happen
that the accused workman will be best suited, and fully
able to cross examine the witnesses who have spoken
against him and to examine witnesses in his favour.
It is helpful to consider in this connection the
fact that ordinarily in enquiries before domestic tribunals
the person accused of any misconduct conducts his own
case.   Rules   have   been   framed   by   Government   as
regards   the   procedure   to   be   followed   in   enquiries
against their own employees. No provision is made in
these rules that the person against whom an enquiry is
held may be represented by anybody else. When the
general practice adopted by domestic tribunals is that
the   person   accused   conducts   his   own   case,   we   are
unable   to   accept   an   argument   that   natural   justice
demands that in the case of enquiries into a chargesheet
of misconduct against a workman he should be
represented by a member of his Union. Besides it is
necessary   to   remember   that   if   any   enquiry   is   not
otherwise fair, the workman concerned can challenge its
validity in an industrial dispute.
Our conclusion therefore is that a workman
against   whom   an   enquiry   is   being   held   by   the
management  has no right  to be  represented  at such
enquiry   by   a   representative   of   his   Union;   though   of

course an employer in his discretion can and may allow
his employee to avail himself of such assistance."
31.   In another decision, namely,  Dunlop Rubber
Company's case (supra), it was laid down that there was
no right to representation in the disciplinary proceedings
by another person unless the Service Rules specifically
provided for the same.
32.  The matter again came to be considered by a
three­Judge   Bench   of   this   Court   in  Crescent   Dyes's
case (supra), Ahmadi, J. (as he then was) in the context
of   Section   22(ii)   of   the   Maharashtra   Recognition   of
Trade Unions and Unfair Labour Practices Act, 1971, as
also   in   the   context   of   domestic   enquiry,   upheld   the
statutory restrictions imposed on delinquent's choice of
representation in the domestic enquiry through an agent.
33. The   earlier   decisions   in  N.   Kalindi's   case
(supra); Dunlop Rubber Company's case (supra) and
Brooke Bond India (P) Ltd. v. Subba Raman (S.)  and
another, (1961 (2) LLJ417), were followed and it was
held that the law in this country does not concede an
absolute right of representation to an employee as part
of his right to be heard.   It was further specified that
there is no right to representation as such unless the
Company, by its Standing Orders, recognises such a

right.     In   this   case,   it   was   also   laid   down   that   a
delinquent employee has no right to be represented in
the departmental proceedings by a lawyer unless the
facts involved in the disciplinary proceedings were of a
complex nature in which case the assistance of a lawyer
could be permitted.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NOS. 107/07 & 115/07.
           LETTERS PATENT APPEAL NO. 107 OF 2007
         IN  WRIT PETITION NO. 2616 OF 1996

P.M. Ruikar Trust Yavatmal, Vs  Punjaram  Dharmaji Wagdarkar,

   CORAM :  B.R. GAVAI & P.N. DESHMUKH, JJ.     
   DATED  :  JANUARY 11, 2016.
Citation:2016(2) MHLJ783

Print Page

Whether school tribunal is civil court?

It is,
thus, clear that the dispute that is raised before the tribunal
under the Act is a dispute of a civil nature and therefore it can
be safely said that the tribunal for the purpose of deciding
appeals filed before it can be said to be civil  court for the
purpose of Civil Procedure Code and therefore, an order made
by the Tribunal is an order within the meaning of the CivilProcedure Code.  I have already pointed out above that under
section 36 of the Civil Procedure Code, provisions in the Code
relating to execution of decree are applicable to the execution of
the order.  Therefore, if the order made by the School Tribunal
is an order within the meaning of Civil Procedure Code, then
the provisions in the Code relating to execution of a decree are
available   for   enforcing   or   executing   an   order   made   by   the

School Tribunal.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

Writ Petition No.32 of 2015

 Shri Brijlal Biyani Vidya Niketan Shikshan Prasarak Mandal,Vs Bharti w/o Khanderao Dabhade,

Coram : R.K. Deshpande, J.
Dated  : 31st March, 2015
Citation;2016(1)ALLMR797

Print Page

Whether school tribunal can permit adducing of oral evidence?

 It would, however, be the discretion of the School Tribunal

whether the parties are to be permitted to lead oral evidence in the

interest of justice, keeping in view the facts and circumstances of each

case.  While doing this, the School Tribunal may have regard to the

nature of factual dispute, the burden of proof, the presumptions in

law,   the   choice   of   the   party   to   discharge   such   burden   or   rebut

presumptions in law by leading oral evidence.  In order to cut short

the controversy and concentrate upon the material controversy, it shall

always be desirable for the School Tribunal to frame an appropriate

issue or the issues of facts so that the party desiring to discharge the

burden or rebut the presumptions in law, is not deprived of such

opportunity to lead evidence to prove facts in support of its stand.  It
will not be a hard and fast rule to permit the parties in each case to
lead oral evidence.  The School Tribunal may decide cases on the basis
of pleadings and the documents on record and/or on the basis of
affidavits if it is possible, depending upon the facts and circumstances

of such cases.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

Writ Petition No.32 of 2015

 Shri Brijlal Biyani Vidya Niketan Shikshan Prasarak Mandal,

Vs  Bharti w/o Khanderao Dabhade,

Coram : R.K. Deshpande, J.

Dated  : 31st March, 2015

Citation;2016(1)ALLMR797

Print Page

When disciplinary enquiry against Teacher can be quashed?

I find that the enquiry was conducted in a slip-shod manner.

The enquiry committee was not constituted as required by law.

The evidence was recorded in a weird manner. The petitioner was not given an adequate opportunity of cross-examining the management witnesses. Two additional charges have been surreptitiously introduced / levelled against the petitioner. The suspension allowance was not paid to the petitioner thereby causing inconvenience to the petitioner. It is for all these reasons that the enquiry deserves to be quashed and set aside.

Bombay High Court

Ashok Shahaji Gulbhile vs The Secretary Gramvikas Shikshan ... on 20 March, 2015

Bench: R.V. Ghuge

Citation; 2015(5) MHLJ678

Print Page

Basic principles for grant of back wages in case of setting aside of wrongful termination of employee

 In the case of Deepali (Supra) the appellant was working as a
teacher in a primary school, who was proceeded against departmentally on

charges of insubordination etc. and was placed under suspension and was
subsequently terminated. The School Tribunal found action of the
Management wholly arbitrary and vitiated due to violation of principles of
natural justice. The School Tribunal also took cognizance of the fact that
the appellant was not gainfully employed and this aspect was not
controverted by the Management. The School Tribunal, in such
circumstances, ordered her reinstatement with full back wages. That order
was modified by a learned Single Judge of this Court as regards payment of
the back wages. That was the order which was subject matter of challenge
before the Hon'ble Supreme Court. It has been inter alia held that, as a
normal rule an employee becomes entitled to reinstatement with back
wages, once the dismissal/termination, is found to be illegal. After taking
survey of the various decisions, the Hon'ble Apex Court has culled out the
following principles on the question of grant of back wages.
“(i) In cases of wrongful termination of
service, reinstatement with continuity of service and back
wages is the normal rule.
(ii) The aforesaid rule is subject to the rider
that while deciding the 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 employee/workman, 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 was not gainfully
employed or was employed on lesser wages. If the employer
wants to avoid payment of full back wages, then it has to
plead and also lead cogent evidence to prove that the
employee/workman was gainfully employed and was
getting wages equal to the wages he/she was drawing prior
to the termination of service. This is so because it is settled
law that the burden of proof of the existence of a particular
fact lies on the person who makes a positive averment
about its existence. It is always easier to prove a positive
fact than to prove a negative fact. Therefore, 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.
(iv) The cases in which the Labour
Court/Industrial Tribunal exercises power under
Section 11A
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/or 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
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.

(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 victimising the employee or
workman, then the court or tribunal concerned will be fully
justified in directing payment of full back wages. In such
cases, the superior courts should not exercise power under
Article 226 or Article 136 of the Constitution and interfere
with the award passed by the Labour Court, etc. merely
because there is a possibility of forming a different opinion
on the entitlement of the employee/workman to get full
back wages or the employer's obligation to pay the same.
The courts must always keep in view that in the cases of
wrongful/illegal termination of service, the wrongdoer is
the employer and sufferer is the employee/workman and
there is no justification to give a 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 finalisation of
litigation 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. The courts should bear in mind that in most

of these cases, the employer is in an advantageous position
visavis
the employee or workman. He can avail the
services of best legal brain for prolonging the agony of the
sufferer i.e. the employee or workman, who can illafford
the luxury of spending money on a lawyer with certain
amount of fame. Therefore, in such cases it would be
prudent to adopt the course suggested in Hindustan Tin
Works (P) Ltd. (1979) 2 SCC 80.
(vii) The observation made in J.K. Synthetics
Ltd. case, (2007) 2 SCC 433 that on reinstatement the
employee/workman cannot claim continuity of service as of
right is contrary to the ratio of the judgments of threeJudge
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.”
It can thus be seen that it is the normal rule to grant back
wages/salary once the Court/Tribunal awards reinstatement. However, this
normal rule is subject to wellknown
exceptions and there is a discretion in
the matter of grant of back wages/salary. Albeit such a discretion is judicial
in nature and has to be exercised in the facts and circumstances of each
case and no straitjacket
formula can be laid down. In the case of Upekshit
Samaj Kalyan Samiti, Ballarpur...Versus...Education Officer (Secondary)
and others, reported in (2009) 15 SCC 194, the Hon'ble Apex Court had
restricted the back wages to 50%, while in the case of South Bengal State
Transport Corporation...Versus...Ashok Kumar Ghosh and others,
reported in (2010) 11 SCC 71 it was held that, where the punishment was

set aside on a technical ground, the back wages could not be granted and

were accordingly denied.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4732/2003

 Dnyanshwar  Vithuji Ghude Vs  State of Maharashtra,
CORAM
: A.P. BHANGALE AND
C.V. BHADANG, JJ.
Date of pronouncing the judgment : 01.10.2014
Citation;2015(2) ALLMR 647

Print Page

Basic principles for condonation of delay

In a recent judgment of the Supreme Court in the case of “S.Ganeshraju (Dead)
through Lrs and another vs Narasamma (Dead) through Lrs and ors
reported in (2013) 11 Supreme Court Cases 341” the Supreme Court in
dealing with an issue of condoning delay as falling under section 5 of the
Limitation Act has held that section 5 of the Limitation Act is required to be
given a liberal construction so as to advance substantial justice. Unless
there are malafides in not approaching the Court during the period of
limitation as a normal rule delay ought to be condoned.
The Supreme
Court has observed as follows:-
12. “The expression “sufficient cause” as appearing in Section
5 of the Limitation Act, 1963 has to be given a liberal
construction so as to advance substantial justice. Unless the
respondents are able to show malafides in not approaching the
court within the period of limitation, generally as a normal rule,
delay should be condoned. The trend of the courts while dealing

with the matter with regard to condonation of delay has tilted
more towards condoning delay and directing the parties to
contest the matter on merits, meaning thereby that such
technicalities have been given a go-by.
13.
The rules of limitation are not meant to destroy or
foreclose the right of parties. They are meant to see that parties
do not resort to dilatory tactics but seek their remedy promptly.

14. We are aware of the fact that refusal to condone delay
would result in foreclosing the suitor from putting forth his
cause. There is no presumption that delay in approaching the
court is always deliberate. In fact, it is always just, fair and
appropriate that matters should be heard on merits rather than
shutting the doors of justice at the threshold. Since sufficient
cause has not been defined thus, the courts are left to exercise a
discretion to come to the conclusion whether circumstances exist
establishing sufficient cause. The only guiding principle to be
seen is whether a party has acted with reasonable diligence and
had not been negligent and callous in the prosecution of the
matter. In the instant case, we find that the appellants have shown
sufficient cause seeking condonation of delay and the same has
been explained satisfactorily.”
In another decision of the Supreme Court in the case of
15.
“Basavraj & Anr. vs. SLAO” reported in “(2013) 14 SCC 81” while explaining
what would be meant by the word 'sufficient cause' the Supreme Court has
made the following observations in considering the case of delay of more
than five years.
9. “ Sufficient cause is the cause for which defendant
could not be blamed for his absence. The meaning of the
word "sufficient" is "adequate" or "enough", inasmuch as
may be necessary to answer the purpose intended.
Therefore, the word "sufficient" embraces no more than that
which provides a platitude, which when the act done suffices
to accomplish the purpose intended in the facts and
circumstances existing in a case, duly examined from the
view point of a reasonable standard of a cautious man. In
this context, "sufficient cause" means that the party should
not have acted in a negligent manner or there was a want of
bona fide on its part in view of the facts and circumstances
of a case or it cannot be alleged that the party has "not acted

diligently" or "remained inactive". However, the facts and
circumstances of each case must afford sufficient ground to
enable the Court concerned to exercise discretion for the
reason that whenever the Court exercises discretion, it has to
be exercised judiciously. The applicant must satisfy the
Court that he was prevented by any sufficient cause from
prosecuting his case, and unless a satisfactory explanation is
furnished, the Court should not allow the application for
condonation of delay. The court has to examine whether the
mistake is bona fide or was merely a device to cover an
ulterior purpose. (See: Manindra Land and Building
Corporation Ltd. v. Bhootnath Banerjee & Ors., AIR 1964
SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC
1953; Parimal v.Veena @ Bharti AIR 2011 SC 1150; and
Maniben Devraj Shah v. Municipal Corporation of Brihan
Mumbai AIR 2012 SC 1629.) In Arjun Singh v. Mohindra
Kumar, AIR 1964 SC 993 this Court explained the
difference between a good cause and a sufficient cause and
observed that every sufficient cause is a good cause and vice
versa. However, if any difference exists it can only be that
the requirement of good cause is complied with on a lesser
degree of proof that that of sufficient cause.”
16.
The principles of law laid down by the Supreme Court in the case of
“Collector, Land Acquisition, Anantnag and Anr. Vs. Mst.Katiji and Ors. (AIR
1987 Supreme Court 1353)” as appearing in paragraph 3 of its judgment are
required to be considered in considering an application for condonation of delay.
The Supreme Court has observed as under:-
“3.
The legislature has conferred the power to condone
delay by enacting section 5 of the Indian Limitation Act of
1963 in order to enable the Courts to do substantial justice to
parties by disposing of matters on 'merits'. The expression
“sufficient cause” employed by the legislature is adequately
elastic to enable the Courts to apply the law in a meaningful
manner which subserves the ends of justice that being the
life purpose for the existence of the institution of Courts. It
is common knowledge that this Court has been making a

justifiably liberal approach in matters instituted in this
Court. But the message does not appear to have percolated
down to all the other Courts in the hierarchy. And such a
liberal approach is adopted on principle as it is realized
that:-
(1)
Ordinarily a litigant does not stand to benefit by
lodging an appeal late;
(2)
Refusing to condone delay can result in meritorious
matter being thrown out at the very threshold and cause of
As against this, when delay is
justice being defeated.
condoned the highest that can happen is that cause would be
decided on merits after hearing the parties.
“Every day's delay must be explained” does not mean
(3)
that a pedantic approach should be made. Why not every
hours delay, every seconds delay ? The doctrine must be
applied in a rational common sense in pragmatic manner.
(4)
When substantial justice and technical considerations
are pitted against each other, cause of substantial justice
deserves to be preferred for the other side cannot claim to
have vested right in injustice being done because of a non
deliberate delay.
(5)
There was no presumption that delay is occasioned
deliberately, or on account of culpable negligence, or on
account of malafides. A litigant does not stand to benefit by
resorting to delay in fact he runs a serious risk.
(6)
It must be grasp that judiciary is respected not on
account of its power to legalize injustice on technical
grounds but because it is capable of removing injustice and
is expected to do so.”
17.
In the light of the aforesaid well settled position in law, it is clear

that the expression “sufficient cause” as appearing in Section 5 of the Limitation
Act is required to be a given liberal construction so as to advance substantial
justice. Unless a party contesting the condonation of delay application is able to
show malafides on the part of the party approaching the Court in seeking
condonation of delay, it is held that as a normal rule, the delay should be
condoned. The Court is under an obligation to exercise discretion judiciously and
The reliance placed on behalf of the Petitioners on various decision
18.
hence, the test of bonafides of the applicant is required to be applied.
may not assist the Petitioners inasmuch as in each of these decisions the Court in
the peculiar facts of the case before it has adopted the reasoning as given in the
respective decisions. 
WRIT PETITION NO.975 OF 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

M/s.Ware's Educational Trust Vs Subhash Bhagwan Khedkar,
CORAM ;
: G. S. KULKARNI, J.
DATE : 17th SEPTEMBER,2014
Citation;2015(2)ALLMR91

Print Page

Importance of Doctrine of relation back in service jurisprudence.

 Doctrine of relation back has been considered to be an

important part of service jurisprudence. The essence of the "doctrine

of relation back" is that though an employee necessarily has to

undergo rigours of litigation, he eventually stands compensated if the

order of punishment is set aside. Entire back wages and benefits

incidental and consequential to reinstatement are then available to

an employee if the subsequent order of punishment in the form of

dismissal or termination is held to be bad in law since it relates back

to the initial date of dismissal. It is, in this situation, that the

"doctrine of relation back" has its operation.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.9310 OF 2013

WITH

CIVIL APPLICATION NO.2010 of 2014

Manohar Pandit Marathe Vs President, Sharda Vidya Prasarak Mandal,

(CORAM : RAVINDRA V.GHUGE, J.)

DATE : 01/04/2014

Citation;2014(4) MHLJ 556 Bom

Print Page

When court can lift the veil to find out to find out real reason of making an appointment on temporary basis

 Hence, the power under
subsection
(2) of Section 5 is held to be discretionary.
18. The exercise of discretion under subsection
(2) of
Section 5 has to be by keeping in view the object of
enactment and the exigencies of the administration. If the
exercise of discretion is found to be arbitrary, unreasonable,
capricious or is a colourable exercise of power to defeat the
protection in service granted by the statutory provisions,

then the Court is empowered even to invoke the principles
of “lifting of veil” to find out the real reason of making an
appointment on temporary basis, and if the action is not
found to be bona fide, an appropriate direction can be
issued to provide protection in service by treating the
appointment on probation, even if it is shown to be on
temporary basis or for a fixed period. This is the view
propounded by the Full Bench, which is in conformity with
the object and the provisions of the MEPS Act. The ratio of
the decision of the Full Bench cannot be construed as
creating absolute bar to the jurisdiction of the School
Tribunal under Section 9 of the MEPS Act, to consider and
decide the question as to whether in the given facts and
circumstances of the case, an order of appointment on
temporary basis or for a fixed period in a permanent
vacancy cannot be treated as one on probation and the
employee is entitled to protection in service, in a challenge

to the order of termination. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4404/2011

Abdul Rafique Abdul Hamid, Vs  The Yavatmal Islamia Anglo Urdu Education Society, Yavatmal, 

R. K. DESHPANDE, J.
DATE : 13 th FEBRUARY, 2014 .
Citation;2014(3) MHLJ 99 Bom

Print Page

Jurisdiction of civil court in case of Maharashtra Employees of Private School

The controversy in each such suit, therefore, has to be gone into on the above touchstone. We have seen from the pleadings in Civil Suit No. 165 of 1996 that the plaintiff seeks declaration that the Inquiry Committee constituted is void and defendant be restrained from holding any inquiry. Now, if this relief is seen, it would be clear that this relief does not relate to either dismissal, removal, termination, reduction in rank or supersession in promotion. This suit is, therefore, certainly out of cognizance of the Tribunal. The Civil Court, therefore, could certainly take cognizance of such a suit. Whether such a declaration and injunction could be granted or not would be a different question and we need not go into that.1

2007(3)ALLMR45, 2007(2)BomCR760, 2007(109)BOMLR717

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 235 of 2003

Decided On: 01.03.2007

Appellants: Sanjay Gandhi Shikshan Prasarak Mandal, A Society registered under Societies Registration Act, through its Secretary Shri Namdeo Nagorao Hajare

Vs.

Respondent: Nivrutti S/o Tukaram Borkar

Hon'ble Judges/Coram:
C.L. Pangarkar, J.

Print Page

Right to employee of private school to claim unpaid salary or unpaid emoluments from management

An employee of a private school, therefore, cannot claim the unpaid salary or unpaid emoluments from the management of the school by filing an appeal before the School Tribunal solely for that purpose and that no such appeal would lay before the School Tribunal under section 9 of the Act for that purpose. Similarly, if an employee of the private school challenges his order of termination, dismissal or removal or reduction in rank before the School Tribunal under section 9 of the M.E.P.S. Act, after hearing the parties if the School Tribunal comes to the conclusion that such order of termination, removal or dismissal in rank was illegal and then also in addition to the reinstatement the School Tribunal can only direct the payment of arrears of emoluments or salary for the period subsequent to the order of termination, dismissal or removal or reduction in rank till the period so specified by the School Tribunal and not of any outstanding amount of salary or emoluments of the period to the passing of impugned order. It is this abundantly clear that the respondent No. 1 employee could not have claimed her unpaid salary for the period from 16-12-1982 to 30-4-1983 prior to the order of termination from the School Tribunal in the appeal filed by her challenging the termination and, therefore, the Labour Court did not commit any error of jurisdiction in entertaining the application filed by the employee under section 33-C(2) of the Industrial Disputes Act, 1947 and in passing the award on 6-6-1989.

Bombay High Court

Sangam Education Society, Nagpur ... vs Bharti Hansraj Borkar And Anr. on 27 January, 1995

Equivalent citations: 1995 (4) BomCR 621

Bench: R Lodha

Print Page

Whether Jurisdiction of civil court is barred in respect of matters where remedy is not provided under Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act?

The Legislature having provided for a remedy before the Tribunal only in respect of the subjects spelt out in Clauses (a) and (b) of Sub-section (1) of Section 9, in those cases the jurisdiction of the Civil Court is impliedly barred. The jurisdiction of the Civil Court is barred to the extent to which the Legislature has spoken. In other areas which are not covered by Clauses (a) and (b) of Sub-section (1) of Section 9, the remedy of an appeal before the Tribunal is not available and hence, the jurisdiction of the Civil Court is not barred.

Bombay High Court

St. Ulai High School Through Its ... vs Shri Devendraprasad Jagannath ... on 18 December, 2006

Equivalent citations: 2007 (109) Bom L R 60, 2007 (1) MhLj 597

Bench: J Patel, D Chandrachud, R Dalvi

Print Page