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
1. The only contention raised by the learned counsel for the petitioners challenging the order passed by the First labour Court, Nagpur, dated 6-6-1989 is that the Labour Court had no jurisdiction to award unpaid salary to the respondent No. 1 for the period from 16-12-1982 to 30-4-1983 because the said dispute could be only agitated before the School Tribunal constituted under the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 and the order passed by the First Labour Court, Nagpur impugned in the present writ petition is liable to be quashed and set aside.
2. In opposition to the contention raised by the learned counsel for the petitioner, it is contended by the contesting respondent No. 1 that the claim of the unpaid salary for the period from 16-12-1982 and 30-4-1993 could not have been made by the respondent No. 1 before the School Tribunal and, therefore, the jurisdiction of the Labour Court was not barred.
3. To appreciate the rival submissions of the learned counsel for the parties, brief relevant facts may be adverted to first. It is not in dispute that the respondent No. 1 was in the employment of the petitioners in Sangam Higher Primary School as a Clerk and her services were terminated w.e.f. 30-4-1983. The respondent No. 1 challenged the said termination before the School Tribunal at Nagpur and the School Tribunal rejected the appeal filed by the respondent No. 1 challenging the termination order. After the appeal was dismissed by the School Tribunal on 27-7-1984 the respondent No. 1 filed a review application before the School Tribunal praying therein that she has not been paid the salary from 16-12-1982 to 30-4-1983 and therefore, necessary directions be issued to the petitioners. This review application was rejected by the School Tribunal vide its order dated 3-10-1984 observing that the appeal of the respondent No. 1 has already been dismissed and for back wages she should approach the Education Officer and if advised, file the civil suit since the matter did not lie in the jurisdiction of the School Tribunal. On rejection of the review application the respondent No. 1 filed an application under section 33-C(2) of the Industrial Disputes Act, 1947 before the Labour Court, Nagpur and claimed her unpaid salary for the period from 1-4-1982 to 30-4-1983 amounting to Rs. 3,156.50. The application was filed by the respondent No. 1 under section 33-C(2) on 14-11-1984. The petitioners contested the application mainly on the ground that the Labour Court has no jurisdiction since the matter has already been tried by the School Tribunal and therefore, the application under section 33-C(2) deserves to be dismissed.
4. The Labour Court held the inquiry and after hearing the parties passed the order directing the petitioners to pay Rs. 2840.85 towards unpaid salary along with interest at 15% per annum from the date of award till payment was actually made with costs of Rs. 500/-.
5. As aforesaid the order passed by the labour Court on 6-6-1989 in the application under section 33-C(2) of the Industrial Disputes Act is under challenge before this Court. The learned counsel for the petitioners has not disputed either before this Court or before the Labour Court that the petitioner was an "Industry" and that the respondent No. 1 was a workman. The Labour Court also observed that it has not been challenged before it that the petitioner was not an "Industry" or that the respondent No. 1 was not a workman and the said observation of the Labour Court has not been challenged by the learned counsel for the petitioner. It is thus clear that the provisions of the Industrial Disputes Act, 1947 are applicable. The contention of the learned counsel for the petitioner is that since the School Tribunal is constituted and the respondent No. 1 has challenged her termination before the School Tribunal, the claim for unpaid salary would have been only made before the School Tribunal, and the appeal filed by the respondent No. 1 before the School Tribunal having been already dismissed challenging the termination, the Labour Court has no jurisdiction to entertain the application under Section 33-C(2).
6. The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short "the M.E.P.S. Act") has come into force on 15-7-1981. The said M.E.P.S. Act was enacted to regulate recruitment and conditions of service in private schools in the State with a view to provide such employees security and stability of service to enable them to discharge their duties. Section 8 of the said Act provides for constitution of the School Tribunal. According to section 9, right of appeal is conferred on the employees of private schools to the Tribunal and in sub-section (1) of section 9 it is provided that notwithstanding anything contained in any law or contract for the time being in force an employee in a private school who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank by the order passed by the management, may file appeal to the School Tribunal constituted under section 8 within the time prescribed under sub-section (2). Section 10 deals with the general powers and the procedure of the Tribunal, while section 11 makes the power of the Tribunal to give appropriate reliefs and directions explicit. Sections 9 and 11 of the M.E.P.S. Act read as under :
9. Right of Appeal to Tribunal to Employees of Private Schools. - (1) Notwithstanding anything contained in any law or contract for the time being in force.
(a) an employee in a private school, who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank by the order passed by the Management; or
(b) who is superseded by the Management while making an appointment to any post by promotion; and who is aggrieved shall have a right of appeal or may appeal against any such order of supervision to the Tribunal constituted under Section 8;
Provided that no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court, of competent jurisdiction or is pending before such Court on the appointed date or where the order of dismissal, removal, otherwise termination of service or reduction in rank was passed by the management at any time before 1st July 1976.
(2) .........
(3) .........
(4) .........
"11. Powers of Tribunal to give appropriate reliefs and directions - (1) On receipt of an appeal, where the Tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that appeal does not pertain to any of the matters specified in section 9 or is not maintainable by it, or there is no sufficient ground for interfering with the order of the management it may dismiss the appeal.
(2) 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 any rules made under this Act), contract or conditions or service for the time being in force or was otherwise illegal or improper the Tribunal may set aside the order of the Management, partially or wholly, and direct the Management.
(a) to reinstate the employee on the same post or on a lower post as it may specify;
(b) to restore the employee to the rank which he held before reduction or to any lower rank as it may specify;
(c) to give arrears of emoluments to the employee for such period as it may specify;
(d) to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be;
(e) where it is decided not to reinstate the employee or in any other appropriate case, to the employee twelve months' salary (pay and allowances if any) if he has been in service of the school for less than 10 years or more and six months' salary (pay and allowances if any) if he has been in service for less than 10 years, by way of compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereafter, as it may specify; or
(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.
(3) .........
(4) .........
7. It would be seen that an appeal lies to the School Tribunal filed by an employee against the order of management whereby either such employee has been dismissed or removed or whose services are otherwise terminated or who is reduced in rank or superseded while making appointment in the post by promotion.
8. If the matter pertains to none of the matters under section 9 of the Act, the Tribunal may dismiss the appeal or if there is no merit in the appeal challenging the order covered under section 9, the School Tribunal may also dismiss the appeal. When the Tribunal finds that the appeal is covered by the matters mentioned in section 9 and such order was not justified, after giving an opportunity of hearing to both the parties, may set aside the order of management wholly or partially and direct the management to reinstate the employee in the same post or on a lower post as it may specify or restore the employee to the rank which he held before reduction or to any lower rank as may be specified with all arrears of emoluments to the employee for such period as specified or award such lesser punishment as may be specified or grant such other relief as it may specify.
9. The respondent No. 1 admittedly challenged her order of termination passed by the petitioners before the School Tribunal, but did not claim payment of unpaid salary for the period from 16-12-1982 to 30-4-1983 for reasons best known, but the fact remains that in the appeal the claim for unpaid salary for the aforesaid period was not made. The School Tribunal dismissed the appeal filed by the respondent No. 1 challenging her termination by its order dated 27-7-1984. Thereafter the review application was filed by the respondent No. 1 before the School Tribunal seeking direction for payment of unpaid salary by the petitioners and the said review application was dismissed by the Tribunal on 3-10-1984 holding that the School Tribunal has no jurisdiction to pass such order.
10. If the management of private school withholds the salary of its employees, it is not open to such employee to challenge the said action of the management by filing an appeal before the School Tribunal. Similarly if despite the employment the management refuses to pay the salary to its employee, no appeal lies against such refusal and the employee aggrieved by such refusal cannot challenge the said order before the School Tribunal. Under Section 9 of the M.E.P.S. Act an appeal lies to the School Tribunal at the instance of the employee in a private school against the order of dismissal or removal or termination or reduction in rank or supersession while making appointment to any post of promotion by the management and against no other matters, and thus it is clear that the respondent No. 1-employee could not have claimed the unpaid salary from 16-12-1982 to 30-4-1983 as the main and sole relief from the School Tribunal. The employee challenged the order of termination before the School Tribunal and if the School Tribunal had found that the order of termination was illegal and improper, it could have directed reinstatement under section 11(2) (a) and also ordered for payment of arrears of emoluments to the employee for the period specified, and that period would only be subsequent to specified order under section 9, but since the termination order was not held illegal or improper the question of any relief to the employee under section 11(2) did not arise.
11. The expression "to give arrears of emoluments to the employee for such period as it may specify" occurring in clause (c) of sub-section (2) of Section 121 of M.E.P.S. Act only means the direction of payment of arrears of emoluments to the employee subsequent to the order contemplated under section 9 and impugned, and such order has been declared illegal or improper by the School Tribunal and not the unpaid salary or arrears of salary or arrears of emoluments prior to the date of order challenged. It is only after the School Tribunal holds that the order of termination or dismissal or removal or reduction in rank is illegal or improper, while setting aside such order under clause (c) of sub-section (2) of section 11 the School Tribunal may pass appropriate order for payment of emoluments subsequent to such order, which was accumulated or has fallen in arrears till the date of the said order of termination, removal or dismissal or reduction in rank has been set aside and declared illegal and improper by the Tribunal. The unpaid salary or unpaid emoluments of the employee of a private school by the management prior to the termination, dismissal or removal or reduction in rank cannot be thus claimed by the employee by filing an appeal before the School Tribunal, nor the School Tribunal by setting aside or declaring such order or termination, dismissal or removal or reduction in rank illegal could in exercise of its power under clause (c) of sub-section (2) of section 11 direct the payment of unpaid salary of the period prior to the order of termination, dismissal or removal or reduction in rank.
12. 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.
13. The order passed by the Labour Court, Nagpur, on 6-6-1989 is justified and based on proper appreciation of material and evidence on record and no interference is called for in the said order.
14. Consequently there is no merit in this writ petition and the same is dismissed. Rule is discharged. No order as to costs.
15. Petition dismissed.
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