AI Structured Summary
Not yet generated for this judgment
Judgment
A.B. Chaudhari, J.—The following are the prayer clauses in this writ petition.
"(i) direct the Respondent-management to continue the petitioner in service as Head Mistress till the date of superannuation.
(ii) direct the Respondents to pay the back wages to the Petitioner.
(ii-a) Direct the respondents to finalize the pension of the Petitioner treating the petitioner as Head Master of the school and by making proper fixation continuously till her age of retirement i.e. 31-12-1996 and direct the respondents to pay the arrears of salary and pension including gratuity and other benefits i.e. commutation, leave encashment, etc with interest as per law.
(iii) .....
(iv) direct the Respondents to pay the Provisional Pension to the Petitioner till the decision of the instant petition."
The petitioner attained the age of superannuation in service effective from 31.12.1996 vide order dated 27.12.1996 (Annexure IV) issued by the management. Hence prayer clause (i) cannot be granted.
SUBMISSIONS:
In support of the petition, the learned counsel for the petitioner submitted that while in employment of the respondent Nos. 4 and 5, she was appointed and promoted to the post of Head Mistress on 31.10.1985 but w.e.f. 01.07.1991, the Management was pleased to suspend her without obtaining permission from the Education Officer and started enquiry against her for certain charges. The result of the enquiry ultimately culminated into her reduction in the rank to the post of Assistant Teacher from the post of Head Mistress by an order made by the Management on 19/23.12.1991. The same was put to challenge by filing appeal before the School Tribunal vide Appeal No. STN 14/1992, which was allowed and the management was granted liberty to hold de novo enquiry against the petitioner within 120 days from the date of its first meeting. The Management chose not to hold any enquiry but the said judgment was challenged before the High Court in Writ Petition No. 383/1997 which was dismissed on 10.04.2001 so also the Letters Patent Appeal, thus, confirming the judgment of the School Tribunal dated 27.11.1996. The learned counsel for the petitioner further submitted that the management chose not to hold de novo enquiry against the petitioner and kept quite throughout and did not reinstate her, did not pay her salary nor paid her subsistence allowance but finally issued an order of superannuation w.e.f. 31.12.1996 as stated above. Counsel for the petitioner, therefore, submitted that the action of the respondent-management in reducing the petitioner in rank, was set aside by the competent School Tribunal which was confirmed by this Court. The petitioner, thus, is entitled to the reliefs including the salary, terminal benefits and pensionary benefits etc. so also interest on delayed payments of pension etc. He, therefore, submitted that the prayers made in the petition should be granted in her favour.
Per contra, Mr. Lala, learned counsel for the respondent Nos. 4 and 5-Management opposed the writ petition and the reliefs prayed in the writ petition and submitted that it is the petitioner, who should be blamed for not submitting the pension papers with the Management for forwarding the same onwards to the authorities and the said fact is borne out on record from the documents R-5, R-6, R-7 filed along with the submissions of respondent No. 4 dated 31.01.2015 filed on 12.02.2016 in this Court vide St. No. 1715/2015. He invited our attention to the statement of denial about the claim of the petitioner and that the fault was of the petitioner and not of the respondents. He also submitted that the claim for arrears of salary is clearly barred by law of limitation and, therefore, is required to be rejected. There is no reason why the Management should be punished for the fault of the petitioner in the matter of award of interest on delayed payments etc. as prayed by her. He, therefore, prayed for dismissal of the writ petition.
The learned A.G.P. invited our attention to the affidavit-in-reply St. No. 1499/2002 of respondent No. 3 and submitted that the Management should have submitted the case papers for pension immediately after retirement of the petitioner on 31.12.1996 but that was not done and hence the Government is not responsible in the matter of delayed payments etc. The Government is also not responsible in the matter of payment of salary or subsistence allowance to the petitioner since the action of the Management is found to be wrong and illegal by the tribunal and since the management itself did not hold de novo enquiry, the Government cannot be asked to unnecessarily share the burden for the fault of the management.
CONSIDERATION:
We have heard learned counsel for the rival parties for quite some time. We have perused the entire record of the case. It is not in dispute that the order of reduction of rank of the petitioner from the post of Head Master to the post of Assistant Teacher that was issued by the Management on 19/23.12.1991 was set aside by the competent School Tribunal by the judgment and order dated 27.11.1996. It would be appropriate to reproduce the operative part of the order of the tribunal, which reads thus:
"ORDER
A) The appeal is hereby allowed partly.
B) the impugned order dated 19/23-12-1991 issued by the Management reducing the appellant in rank is hereby set aside.
C) The Management is hereby directed to hold Denovo enquiry against the appellant on the same charges from the stage of constituting the Enquiry Committee.
D) The Management shall within 60 days from the date of receipt of this direction constitute the Enquiry committee consisting of a Convenor of the Enquiry committee, who shall be suitable competent person other than the President, Shri S.J. Dongre, one member to be nominated by the appellant as per rules and one member from the panel of the Headmasters on whom State/National Award has been conferred.
E) The Enquiry Committee thus constituted, shall conduct further enquiry as per the rules and shall complete the same within 120 days from the date of its first meeting.
F) The Convenor of the Enquiry committee so appointed shall exercise the power and shall perform the duties as prescribed under the Rules.
G) In case, the Management nominates a legal practitioner to be the Convenor of the Enquiry Committee, the appellant shall also be entitled to engage the legal practitioner for her defence before the Enquiry Committee.
H) The Secretary/Chief Executive Officer, Shri R.B. Choure shall be the Presenting Officer before the Enquiry Committee.
I) The appellant shall continue to be under suspension till the decision of the Management on recommendations of the enquiry committee. This continued suspension shall be governed by Rules, 33, 34 and 35 of the Rules.
J) In the circumstances of the case, parties to bear their own costs."
It is, thus, clear from the reading of the above order that the liberty was granted in favour of the management to hold de novo enquiry and the enquiry should be completed within 120 days of the first meeting. It is not in dispute that the respondent-management preferred not to hold any de novo enquiry after the challenge to the order of tribunal failed. As per the operative part (I) the petitioner was to be continued under suspension till the decision of the Management under Rules 33, 34 and 35 of the Rules, 1981 meaning thereby, the petitioner was entitled to be paid subsistence allowance till the conclusion of the de novo enquiry. As earlier stated, however, de novo enquiry was never held but the Management served order of superannuation on her on 31.12.1996.
It is, in this background and the facts, the entire matter will have to be considered in the correct perspective. Since, the respondent-Management did not avail of the opportunity granted by the tribunal to hold de novo enquiry and passed the time till the petitioner reached the age of superannuation, the objection taken by the learned counsel for the respondents-Management about the aspect of limitation in relation to the payment of salary etc. will have to be overruled since the cause of action continued due to the conduct of the respondent-management. The next aspect is about the status of the practitioner, about her employment for the period after the suspension w.e.f. 01.07.1991 till the date of her retirement namely 31.12.1996. Suffice it to say that in view of the above peculiar facts and circumstances namely; the Management accepted the order of the tribunal, which set aside the order of reduction in rank and did not avail of opportunity to hold de novo enquiry but whiled away till the date of her superannuation and then served order of superannuation w.e.f. 31.12.1996, it will have to be held that the petitioner continued to be in employment of the respondent-Management from the date of her suspension till the date of her superannuation without any obstruction or break in service.
The next question is about the claim for salary made by her in the aforesaid period. In our opinion, the action of the respondent-Management in reducing rank of the petitioner has not been found to be wrong and illegal. The question of payment subsistence allowance for the period from 01.07.1991 to 31.12.1996 by the Government does not arise since the Government or its officers did not issue any direction regarding suspension or as the case may be nor any permission was obtained for suspending the petitioner. The fault clearly lay with the Management and not the Government and, therefore, whatsoever salary for the aforesaid period would be found, will have to be paid by respondent Nos. 4 and 5 Management and not by the Government. However, since the said amount of salary sought by the petitioner is in the nature of back-wages since she did not actually serve during the aforesaid period and looking to the heavy financial burden that is likely to be on the Management, in the light of the decisions of the Supreme Court in relation to the award of back-wages for the aforesaid period, we think that the issue should be referred to the Deputy director of Education, Nagpur Region, Nagpur since we are not in a position to make assessment of evidence, which would be required from both the contesting parties.
Insofar as the grievance regarding payment of pension and gratuity and other benefits are concerned, undoubtedly the same will have to be granted to the petitioner and that too within a fixed time for which the Management is expected to take immediate steps and have the follow up action with the Government Department concerned.
The next question is about the payment of interest on the delayed payment of pensionary benefits. The interest on the delayed payment of pensionary benefits is now governed by the statutory rules. The petitioner is claiming that the Management is at fault in not pursuing her pension case while respondents are saying that the petitioner is at fault by not cooperating with the Management for preparation of pension case. It is not possible for us to make complete adjudication on this issue as to who was at fault. Nevertheless, there is no question of Government paying any interest for the fault on the part of the management. At the same time, the petitioner was granted provisional pension and the payment of provisional pension etc. also will have to be reckoned for the purpose of deciding the amount of interest for delayed payment of pensionary benefits in accordance with the rules. We think, even this issue about decision of the amount of interest to be paid as pensionary benefits will have to be decided by the Deputy Director of Education. The issue about the liability of the Management to pay the interest on the delayed payment and the quantum thereof will have to be decided by the Deputy Director of Education. We, therefore, think that from the prayer clause (ii)(ii-a) and (iv) will have to be adjudicated by the Deputy Director of Education after hearing all the concerned parties. We, however, reject prayer for grant of 18% interest on salary w.e.f. 01.07.1991 as prayed for in the prayer clause (v).
In the result, following order is passed.
"(i) Writ Petition No. 2945/2001 is partly allowed.
(ii) Prayers in prayer clause (i) is rejected.
(iii) The respondent No. 2-Dy. Director of Education, Nagpur Region, Nagpur is directed to decide the pension case of the petitioner with follow up action to be taken by the respondent Nos. 4 and 5, within a period of three months from today.
(iv) The respondent No. 2-Deputy Director of Education, Nagpur shall hear and decide as to the quantum of salary/back wages payable to the petitioner for the period from 01.07.1991 till 31.12.1996.
(v) Respondent No. 2-Dy. Director of Education, Nagpur shall decide award of interest on delayed payment of pensionary benefits in accordance with the Rules of pension namely rate of interest, date from which the interest should be payable and the amount on which interest would be payable by the Management, within a stipulated period."
Rule made absolute in the above terms. No order as to costs.