TaxTMI 
TaxTMI 
2018 (8) TMI 1746
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....pondent. The dispute in the two Civil Appeals before us concerns two employees of this institution, who have served for a number of years, but apparently irreconcilable differences had arisen on account of the alleged conduct of the employees. The two employees are Kailash Singh (Civil Appeal No.6409/2017) and Jeffry Jobard (Civil Appeal No.6410/2017). 3. Kailash Singh began his employment as a Class IV employee on 4.1.1984 and was promoted after a decade's service as an LDC from 1.2.1994 and posted in the Library. Jeffry Jobard began his career as an LDC itself, from 1.7.1985. The services of both Kailash Singh and Jeffry Jobard were terminated simultaneously on 9.11.2000, on account of conducts attributed to them, which created an extremely undesirable situation in the respondent school. 4. It may be appropriate to refer to the ground reality which resulted in the termination of the appellants, though it is not of great importance now in view of subsequent developments. Both the appellants, in different capacities, were associated with the activities of Mayo College Employees Union and are stated to have been instrumental in setting up the 'Sangarsh Samiti Mayo College, Ajmer',....
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.... fanaticism". 7. A unanimous resolution was passed by the Board of Governors on 7/8.11.2000 to terminate the services of the appellants, and they were so dismissed on 9.11.2000 by issuance of letters of the even date. It may be noted that in a subsequent communication, Jeffry Jobard, vide letter dated 14.11.2000 sought to slightly back-track from the issue by claiming that he was not part of the Samiti, and that at the relevant time was, in fact, a mere spectator of the meetings. 8. The termination of the services of the appellants resulted in their approaching the Educational Tribunal, set up under the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter referred to as the 'said Act'). The crucial aspect on which the Management erred was the non-compliance of Section 18, which reads as under: "18. Removal, dismissal or reduction in rank of employees.- Subject to any rules that may be made in this behalf, no employee of a recognised institution shall removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken: Provided that no final order in this regard shall....
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.... Judge, vide judgment dated 16.7.2002, referring to Section 18 of the said Act held that the same was not complied with and even otherwise the relationship between the parties could not be said to have been strained beyond the point of no return. Thus, the direction of the Tribunal for reinstatement was upheld. 11. The aforesaid took the battle to the Division Bench, with the Management preferring an appeal, where it was opined that this was a case where the Management had lost confidence in the appellants, that there had been a unanimous decision of the Board, but the consent of the Director of Education had not been obtained and, thus, there was only a technical defect. In terms of this judgment dated 3.10.2013, the relief was modified to compensation equalling five (5) years' salary on the basis of last pay and allowances drawn by them on the date of termination of their services, together with provident fund and all retiral benefits by construing them to be otherwise in service till they attained the age of superannuation. It may also be noted here that by that date Jeffry Jobard had superannuated on 30.9.2013. These two persons have apparently continued to occupy the premises....
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....ds the award amount had already been paid in pursuance to interim orders passed by this Court on 1.5.2017. 15. Both sides cited certain judicial precedents in support of their case, which we shall proceed to discuss hereafter. 16. On having delved into the submissions of both sides, as well as perusing the judgments which are before us, we cannot lose sight of the fact that we are dealing with an educational institution of great eminence. Persons employed in educational institutions right from Class IV staff to the highest level have a far greater responsibility on account of the nature of activity which takes place in these institutions - Education. There are students of all ages, starting from younger ones to older teenagers, who are studying and living in these campuses. It is a different kind of 'Gurukul'. Thus, anything which is done, as would cause an adverse impact on the mind of these young people, is something which we find difficult to approve, even if it is claimed as a right to make certain demands. The mode and methodology of making demands in these educational institutions cannot be at par with an industrial establishment, where workmen agitate for their rights. Thi....
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....no question of reinstatement in such a case, but the only remedy is by determining the compensation to be paid to the appellants, in view of the Management not having complied with the legal requirement of obtaining the consent of the Director of Education in writing. 19. We seek to buttress our conclusion with the following judicial pronouncements. In a seminal judgment in T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., supra an essential distinction is sought to be made in the case of private unaided educational institutions, opining that its essence is in the autonomy that the institution must enjoy in its management and administration. Thus, while in a government-aided institution, the Government may have a greater say in the administration, while in the case of unaided institutions, maximum autonomy in day-to-day administration is to be with the private unaided institution. This was held to be equally applicable to the teaching faculty and the members of staff, for maintaining excellence in education. In para 63 of the said judgment, the Bench took note of the grievance that wherever cases of misconduct are committed by teachers and members of the staff, for which....
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....mance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence; it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them." 21. The aforesaid view is also adopted by the Constitution Bench in Sirsi Municipality v. Cecelia Kom Francis Tellis (1973) 1 SCC 409. We may usefully extract the observations in the following paragraphs: "15. The cases of dismissal of a servant fall under three broad heads. The first head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by a suit for wrongful dismissal and damages. Just as a con....
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....ocation of a reference to the Industrial Disputes Act, 1947. Thus, the remedy would only be in damages. 23. Now, turning to the aspect of quantification of damages, which is the real bone of contention. What we have to examine is whether the approach adopted by the Division Bench and its conclusion, would give rise to a finding that justifiable compensation has been arrived at, or otherwise. 24. Mr. Colin Gonsalves, learned senior counsel appearing for Jeffry Jobard and Mr. Prashant Bhushan, counsel for Kailash Singh, have both sought to canvass that the only adequate compensation can be full back-wages, till the date of retirement. In this behalf, they referred to the following judicial pronouncements: (i) O.P. Bhandari v. Indian Tourism Development Corporation Ltd. (1986) 4 SCC 337 The factual matrix is dealing with the employer-employee relationship in a public sector undertaking to which Article 12 of the Constitution of India is attracted. It was observed that reinstatement may not invariably follow as a consequence of holding that an order of termination of service of an employee is void. In that context, it was observed that reinstatement should be the rule for the 'blue....
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.... reinstatement with continuity of service and back-wages is the normal rule. A litigant ought not to be penalised, it was so observed, for the delays of the system. However, mitigating and aggravating aspects, such as length of service and nature of misconduct can be taken into account while determining so. 25. We may now turn to the cases relied upon by the learned senior counsel for the respondents: i. S.S. Shetty v. Bharat Nidhi Ltd. 1958 SCR 442 : The position obtaining in the ordinary law of master-servant was clarified as one of established practice that where a master wrongfully dismisses his servant, he is bound to pay him such damages as would compensate him for the wrong that he has sustained. In case the employment is for a specific term, the servant would, in that event be entitled to damages, the amount of which would be measured prima facie and subject to the rule of mitigation in the salary of which the master had deprived him. ii. Sirsi Municipality v. Cecelia Kom Francis Tellis: Supra The judgment has already been discussed as aforesaid in respect of dismissal in contractual matters. iii. Raju Chand v. Zonal Director Nehru Yuva Kendra Sangathan, Chandigarh &....
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....xt, we may observe that the claim for back-wages has apparently been raised for the first time only in the present proceedings, arising from the manner in which the High Court dealt with the matter, where it granted some compensation. 30. The principle of awarding adequate compensation in the form of backwages, keeping in mind aggravating and mitigating circumstances would, thus, have to be observed. The amount cannot be measly, nor can it be a bonanza. The High Court, in its wisdom, awarded the compensation of five (5) years' backwages on the last pay drawn. Not only that, an additional benefit was conferred by providing for provident fund and retiral dues, to be calculated on the premise as if the services would be continued till the appellants attained the age of superannuation. 31. We have no reason to find that such an aforesaid principle can be said to be fallacious or wrong, so as to call for our interference, except to the extent discussed hereafter. 32. We are firstly of the view that it would not be appropriate to determine the amount on the basis of the last pay and allowances drawn. The calculation should be based on the actual pay and allowances liable to be drawn f....