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2003 Supreme(Bom) 1007
BOMBAY HIGH COURT AT PANAJI, GOA
R.J. KOCHAR, P.V. HARDAS, JJ.
Dadi Gangaram Naik – Petitioner
Versus
Adarsha Vidya Prasarak, Mandal, Shiroda, Goa & others - Respondent
Writ Petition No. 170/1998
Decided on: 2nd September, 2003
S.K. Kakodkar, Sr. Advocate with Mr. Joel D'Souza, Advocate, for the petitioner; Shri D.B. Ambekar, Advocate, for the respondents No. 1 and 2; Shri Guru Shirodkar, Addl. Govt. Advocate, for the respondent No.3.
The main legal point established in the judgment is that the period after removal cannot be treated as a period of suspension, and the School Management is obligated to pay full salary and allowances to the petitioner from the date of removal till the date of reinstatement with all the consequential benefits.
Headnote:
mandamus - Salary and Allowances - Goa, Daman and Diu School Education Rules, 1986 - Rule 94(1)(b)(iii), Rule 94(1)(a)(iii), Rule 98 - The court discussed the application of Rule 92, Rule 98, and the legal principle of reinstatement with full back wages and consequential benefits. The court emphasized that the period after removal cannot be treated as a period of suspension and that the School Management was obligated to pay full salary and allowances to the petitioner from the date of removal till the date of reinstatement with all the consequential benefits. The court also clarified the liability of the School Management and the State Government Authorities in this regard.
Fact of the Case:
The petitioner, a Laboratory Assistant, was suspended and later removed from service. After challenging the removal, the petitioner was reinstated with full back wages and all other consequential benefits except the punishment of withholding three annual increments. However, the School Management ordered to treat the period from suspension to reinstatement as a period spent on duty only for retirement and pensionary benefits, denying the petitioner full back wages and other benefits.
Finding of the Court:
The court found that the School Management's order was illegal and contrary to the orders passed by the Tribunal and the High Court. It held that the petitioner was entitled to full salary and allowances from the date of removal till the date of reinstatement, rejecting the School Management's contention that the period could be treated as a period of suspension.
Issues: The issues revolved around the treatment of the period from suspension to reinstatement, the obligation of the School Management to pay full salary and allowances, and the liability of the State Government Authorities.
Ratio Decidendi: The court established that the period after removal cannot be treated as a period of suspension and emphasized the obligation of the School Management to pay full salary and allowances to the petitioner. It clarified the liability of the School Management and the State Government Authorities in this regard.
Final Decision: The court partly allowed the petition, directing the School Management to pay the petitioner 60% of his full pay and allowance and other consequential benefits, deducting the amount of subsistence allowance already paid to him during the period and paying the balance within 12 weeks. It also clarified that if the respondents fail to comply, the respondent No.3 shall exercise his powers to pay the amounts to the petitioner by deducting the same from the aid payable to the School Management.
R.J. Koher, J.-The petitioner has prayed for a writ of mandamus or an appropriate writ or order or direction under Article 226 of the Constitution of India directing the respondents No. 1 and 2 to pay to the petitioner salary and allowances, including all the consequential benefits for the period from 22.2.1990 till the date of reinstatement in service, by the respondents.
2. The petitioner was in employment as a -Laboratory Assistant in Smt. Kamlabai Hede High School, Shiroda, Goa, run by respondent No. 1. He was suspended from service by order dated 28.3.1989, pending disciplinary inquiry to be initiated against him. It appears that after completion of the inquiry, he was removed from service with effect from 22.2.1990 under Rule 94(1)(b)(iii) of the Goa, Daman and Diu School Education Rules, 1986 (hereinafter, referred to as "the said Rules"). It was stated in the said order of removal that the penalty of removal was imposed on the petitioner after getting the approval from the Directorate of Education. The petitioner approached the Administrative Tribunal of Goa, Daman and Diu at Panaji by filing an education appeal No. 1/1990, challenging the order of removal passed by the respondent No. 2 as the Chairman of the Managing Committee of the School. The learned Division Bench of the Tribunal, by its order dated 16.6.1992 partly allowed the appeal by quashing and setting aside the impugned order of removal and by further substituting a minor penalty of withholding three increments as provided under Rule 94(1)(a)(iii) of the said rules. It was further directed by the Tribunal that the petitioner was to be reinstated in the post he was holding on the day he was placed under suspension, forthwith. The Tribunal, however, did not grant the pay and allowances except the subsistence allowance which he was paid during the period of his suspension.
3. The petitioner, thereafter, appears to have written to the School Management by his letter dated 24.7.1992 as to when he should report for duty. It further appears that the respondent No.3, Director of Education, by his letter dated 28.9.1992, asked the respondent No.2, the Chairman of the Managing Committee to comply with the order of the Tribunal with immediate effect. It further appears that the School Management had approached this Court under Articles 226 and 227 of the Constitution of India, challenging the order of the Administrative Tribunal On 30.10.1992, the order of reinstatement of the petitioner was stayed by this Court at the request of the School Management. It further appears that 5.2.1997, the said writ petition filed by the School management was dismissed and the stay of reinstatement stood vacated.
4. On 3.3.1997, after the dismissal of the petition of the Management, the petitioner once again appears to have approached the School Management inquiring as to when he should resume his duty. There is no dispute that the School Management allowed the petitioner to resume his duty with effect from 1.4.1997. Further there is no dispute that he is still in employment of the School and he has been receiving his regular pay and allowances thereafter.
5. By letter dated 20.1.1998, the respondent No.2 has passed the following order :
"In exercise of powers conferred upon me under Rule 98 of the Goa, Daman and Diu School Education Rules, 1986 and in continuation with Order No. AVPM/KHHS/96-97/12 dated 27.3.1997 and in pursuant to judgment/order passed by Hon'ble Bombay High Court, Panaji Bench dated 05.02.1997 passed in Writ Petitions No. 261/98 and 453/92 read with Order passed by Administrative Tribunal in Education Appeal No. 1/90 withholding of three increments will have non-cumulative effect and your absence from duty including period of suspension preceding removal from services till the date or report for duty i.e. w.e.f. 28.03.1989 upto 31.3.1997 shall be treated as period spent on duty only for the purpose of retirement and pensionary benefits and the period shall not b
