Decided on September 07,1979



P.D.DESAI - (1.) There are two petitioners in this case and both of them sere employed as teacher in a school the management of which is represented by the first and second respondents herein. It appears that with effect from the term commencing from June 1978 the school management wanted to close down two classes because of want of adequate number of pupils Each petitioner was therefore served with a notice dated February 4 1978 informing him that in view of the above-mentioned circumstances he would stand relieved on and with effect from the commencement of the June 1978 term. It is not in dispute that before terminating the services of the petitioners as aforesaid no reasonable opportunity of showing cause against the action proposed to be taken in regard to him was given to any of the two petitioners as required by sec. 36(1) (a) of the Gujarat Secondary Education Act 1972 (hereinafter referred to as the Act). Each petitioner thereupon made an application under sec. 38 (1) to the Tribunal constituted under the Act. The Tribunal found that the termination of the services of the petitioners being in violation of the mandatory provisions of sec. (36)(1)(a) the orders terminating the services of the petitioners were illegal. The Tribunal also found that prior written permission of the District Education Officer was not taken by the school management as required by Regulation 10A of the Gujarat Secondary Education Regulations 1974 (hereinafter referred to as the Regulations) before it took the decision regarding reduction of classes and termination of services of the petitioners and that such approval was accorded by the said officer only on April 11 1978 This aspect of the matter also appears to have influenced to some extent the decision of the Tribunal with regard to the validity of the termination orders. As regards the relief to be granted to the petitioners the Tribunal noted that the relief of reinstatement was not pressed on behalf of the petitioners in view of the fact that in the meantime they had been absorbed in other school under the orders of the District Education Officer and that the relief which the petitioners wanted was confined to back wages for the period during which they had remained unemployed consequent upon the illegal termination of their services. The Tribunal however refused to grant the relief of back wages on the following ground: "Both the applicants have accepted jobs in other schools and therefore the question of reinstating them does not arise. Unless an order of reinstatement is passed they would not be entitled to the relief of back wages. They would be entitled to the back wages provided they would be reinstated back in the opponent school. They are not entitled to the same for the period for which they have remained unemployed by way of back wages . At the most they would be entitled to compensation for illegal termination of Services as provided in Regulation 33. However they are not entitled to any compensation under that Regulation.........Under this regulation (Regulation 43) the provision contained in Regulation 33 would not apply and therefore the applicants would not be entitled to claim any compensation from the opponent-school management..................I am unable to agree with him because the order of back wages follows the order of reinstatement. No order for back wages can be passed without directing reinstatement of the applicants. If the applicants do not pray for the order of reinstatement it would be difficult to pass an order for back wages". The Tribunal under the circumstances dismissed the applications made by the petitioners in so far as the relief with regard to back wages in concerned. It is this decision of the Tribunal which is under challenge herein.
(2.) Now I am unable to appreciate and agree with the reasoning and conclusion of the Tribunal on the question of award of back wages on the facts and in the circumstances of the case. Sec. 36 sub-sec. (1) provides two safeguards against dismissal or removal or reduction in rank or termination otherwise of a headmaster teacher or member of non-teaching staff of a registered private secondary school and those safeguards are contained in clauses (a) and (b) of the said sub-section. The school in the instant case being an educational institution established and administered by a minority clause (b) of the said sub-section is not applicable having regard to the provisions of sec. 40A. Clause (a) of the said sub-section however is indubitably applicable although it was sought to be feebly contended on behalf of the school management that in cases of termination of services on account of closure of classes it was not required to comply with the provisions of clause (a).
(3.) In Special Civil Application No. 652 of 1979 decided on March 8 1979 which was a case of termination of services of the principal of a school on account of the closure of such school it has been held that sec. 36 (1) takes within its sweep not only cases of dismissal removal or reduction in rank but also cases of termination otherwise. Therefore even in cases of termination simpliciter it would be necessary to follow not only the terms of the contract but also the provisions of sec. 36 (1). Therefore if the services of a teacher are terminated in violation of the provisions of sec. 36 (1) (a) such termination would be illegal even though the termination might have been made on account of the closure of the school. The decision in the aforesaid writ petition has been in terms confirmed in Letters Patent Appeal No. 174 of 1979 which was decided on July 25 1979 The Division Bench in its order in terms observed that : ....the words otherwise terminated occurring in sec. 36(1) of the Gujarat Secon--- dary Education Act 1972 are wide enough to cover even the case of a situation arising out of closure of a registered school. It would thus appear that the provisions of sec. 36 (1) (a) were applicable in the instant case and that a dispute having been brought before the Tribunal under its original jurisdiction under sec. 38 (1) it had wide jurisdiction to decide whether the termination was wrong unlawful or not justified and to pass a just order bearing in mind the four-fold interests of the teachers student community the management and the public interest represented by the Education Department or the Board as held by this Court in S. S. K Trust v. P. N. Patel 18 G.L.R. 615. As observed in the said case at page 630 sec. 39 (9j gives the widest jurisdiction to the tribunal to decide the dispute and to give suitable directions as to reinstatement if the termination is found to be wrong or unlawful or otherwise unjustified. At page 631 it has been observed that a just order of reinstatement with back wages which the Tribunal has to pass under such circumstances would necessarily imply power in the Tribunal to apportion the compensation amount and to direct that the school management which passes wrongful orders either perversely mala fide or in the absence of any prima facie case should bear the burden of such back wages. It would thus appear to be beyond any doubt or dispute now that in case of termination of services either by way of penalty or otherwise of a member of the teaching or non-teaching staff in contravention of the provisions of sec. 36 (1) the Tribunal has wide jurisdiction to order reinstatement with back wages and to give suitable directions as to who should bear the burden of back wages.;

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