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2009 Supreme(Bom) 1169
IN THE HIGH COURT OF BOMBAY
THE HONOURABLE MR. JUSTICE A.B. CHAUDHARI
Ghateshwar (Ghatadi) Seva Sastha, A registered Public Trust Under Bombay Public Trusts
Versus
Shri Hemant s/o Vinayakrao Purohit & Others
Writ Petition Nos.1223 of 2001, 1269 of 2001, 1270 of 2001, 1271 of 2001, 1272 of 2001, 1273 of 2001 and 1274 of 2001
Decided on : 10-09-2009
For the Petitioner:A.P. Lakhnikar, Advocate. For the Respondents:R1, S.G. Joshi, h/f A.S. Mardikar, Advocates, R3 & R4, J.B. Jaiswal, AGP.
Headnote:Maharashtra Educational Institution (Management) Act, 1976 - Section 11(2)(f) - MEPS Rules, 1981, Rule 25-A - Termination of services of seven teachers - School closed down - Demand drafts of salary of three months sent by petitioner with order of termination - Complaint before School Tribunal - Allowed by Tribunal holding termination illegal and directed petitioner to pay compensation under Section 11(2)(f) of Act - Challenged by petitioner - Held - Termination of services of respondents by petitioner giving advance salary of three months in lieu of three months notice legal and proper - Impugned order quashed and set aside - Writ petition allowed. - Perusal of the above said rule shows that three months advance intimation or advance notice is required to be given to employee in the eventuality of closure of school. This rule does not speak of payment of salary of three months in lieu of such three months notice. But then it cannot be forgotten that by receiving salary of three months in lump-sum simultaneously with the termination order such employee is in fact benefited since he gets the three months’ salary in lump-sum instead of getting the same spread over the period of three months.
It is well settled that the interpretation which furthers the policy and object of the Act i.e. more beneficial to the employee has to be preferred. Therefore making payment of three months salary at a time in lump sum simultaneously with the termination order rather than giving him notice of three months and paying salary spread over three months would be more beneficial to the employee. No purpose would be served by interpreting that the Management should give three months notice and should not pay salary of three months in lieu of three months notice. For the above reasons therefore disagreeing with the view taken by the Tribunal that in the absence of provision for payment of three months salary the petitioner could not endeavour to pay the same Court holds that making payment of three months salary would further the purpose and object underlying the provision. In paragraph No. 8 of the judgment of the Tribunal there is a finding fact recorded by the Tribunal that the employees did not receive salary in lieu of notice. This appears to be incorrect because the petitioner Management had sent demand draft of salary of three months to the employees and report of the concerned clerk who attempted to serve the same on them was not disputed before the Tribunal. The fact of offer of three months salary has also not been disputed before Court by the counsel for the employees. For all the reasons, therefore held that the termination that was effected by the petitioner Management giving advance salary of three months in lieu of three months notice was legal, correct and proper.
1. Being aggrieved by the judgments and orders, dated 29.4.2000, passed by the Presiding Officer, School Tribunal, Nagpur in seven appeals preferred by seven employees, holding termination of service effected by the petitioner illegal and directing the Management to pay compensation equal to salary of 24 months and costs of Rs.2000/- of each appeal in exercise of power under Section 11 (f) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as 'Act'), these writ petitions were filed in this Court.
2. In support of the writ petitions, learned Counsel for the petitioner argued that the Tribunal has found fault with the action of the petitioner - Management in making/offering payment of three months' salary in lieu of three months' notice as contemplated by Rule 25 A of the Maharashtra Employees of Private Schools (Conditions of Service), Rules, 1981 (hereinafter referred as to as 'Rules') only on the ground that the said Rule provides for notice of three months but does not provide for salary of three months in lieu thereof. According to learned Counsel for the petitioner, this is the only point on which termination of service of these employees have been held to be illegal and consequently, the Tribunal awarded compensation equal to the salary of 24 months. According to him, giving notice of three months does not yield any monetary benefit to the employee on the date of issuance of such notice while making payment of three months' salary at a time on the date of issuance of notice of termination in lieu of three months' notice results into lump sum payment of salary of three months to employee and therefore, by no means it could be inferred that the petitioner – Management committed any illegality. According to him though there is no provision for payment of three months' salary in lieu of three months' notice in Rule 25 A of the M.E.P.S. Rules that by itself will not make the termination illegal. For this purpose, he relied on the decision of the Supreme Court in the case of Pramod Jha & others…Versus…State of Bihar & others, reported in 2004 (Supp.) Bom.C.R. 721. He then argued that in the alternative the School Tribunal could not have exercised its power under Section 11 (2) (f) of the Act and without prejudice to the first contention, recourse to Section 11 (2) (e) of the Act could at the most be taken in ordering compensation.
3. Per contra, Advocate Shri Joshi holding for Advocate Shri Mardikar for respondents employees argued that the Tribunal has rightly held that in the absence of any provision of making payment of salary for three months, the petitioner -Management could not have done so, it could have only given a notice of three months and the object of giving such notice is to give sufficient period to the employee to search out another employment. He also filed common short note of written argument repeating the said contention and supporting the judgment of the Tribunal.
4. Heard learned Counsel for the rival parties. It is not in dispute that by the order made by the competent authority the School in which the employees were working was closed down and that is why the employees were required to face termination. It is also not in dispute that the petitioner - Management had sent demand drafts of salary of three months to all these employees simultaneously with the termination order issued to them.
5. Rule 25 A of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 reads thus:
“25A. Termination of Service on account of abolition of posts : (1) The services of permanent employee may be terminated by the Management on account of abolition of posts due to closure of the school after giving him advance intimation of three months to the effect that in the event of closure of the school, his services shall automatically stand terminated. In the case of closure of school due to de-recognition, such advance intimati
