TMI Blog2018 (8) TMI 1746X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. An annual day is always an important day in an educational institution, with active participation of parents. It is of great significance even to the passing out batch of students, and the sensitivity of the parents and children should have been kept in mind while asserting such rights, by the employees. This appears not to have been done. The facts of the present case are covered by the master-servant relationship. There is no adjudication by invocation of a reference to the Industrial Disputes Act, 1947. Thus, the remedy would only be in damages. Quantification of damages - adequacy of compensation to be awarded to the appellants - Held that: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears of his service still remaining. The appellants are required to vacate the premises within a maximum period of one (1) month of the amount being so paid. Appeal allowed. - CIVIL APPEAL No.6409 of 2017 - - - Dated:- 31-8-2018 - Mr. Kurian Joseph Mr. Sanjay Kishan Kaul, JJ. JUDGMENT SANJAY KISHAN KAUL, J. 1. The Mayo College, Ajmer is an educational institution founded in 1875 by Sir Richard Southwell Bourke, the 6th Earl of Mayo, who was also the Viceroy of India from 1868 to 1872. It is one of the oldest educational institutions which was set up as a public boarding school, offering admission to the then elite. This character of the institution changed in the post-independence era, but it continued to be a prestigious centre of learning. The Mayo College is an unaided, nongovernmental educational institution receiving no grant either from the State or the Central Government and is affiliated to the Central Board of Secondary Education, New Delhi, for purposes of students taking that examination to pass the 12th standard. 2. The present unfortunate dispute involves the Managing Committee of the School (respondent No.1), with the Principal arrayed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue on 23.10.2000, and that the workers should not indulge in any disruptive activity. 5. The appellants, despite the same, are stated to have gone ahead with their threat, and at the time when the Annual Function of the Mayo College was being held on 23/24.10.2000, instigated other staff members not to go to work and created disturbances, causing grave embarrassment to the Institution. It appears that loudspeakers were used and inappropriate adjectives were used for the management, so much so that the traditional dinner scheduled for 24.10.2000 had to be cancelled, resulting in a loss of face for the management. 6. It is the aforesaid incidents which led to the show cause notice being issued to both the appellants on 3.11.2000 to which they replied on 6.11.2000. The appellants defended their actions by claiming that they had a right to organise dharnas and protests, as a constitutional right, and that strike and sloganeering should not be stopped. The adjectives used of Murdabad, etc. are adjectives of common parlance in such agitations and cannot be said to be derogatory, and that a proper inquiry should be held qua their conduct. The non-payment of bonus was claimed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, a Full Bench of the Rajasthan High Court, in Central Academy Society v. Rajasthan Non- Government Educational Institutions Tribunal, Jaipur Ors. 2010 (3) ILR (Raj) 450 opined that for an unaided institution the said proviso would not apply in view of the law enunciated in the case of T.M.A. Pai Foundation Ors. v. State of Karnataka Ors. (2002) 8 SCC 481. However, even in case of institutions like Mayo College (unaided institution), the second proviso clause (iii) stared the management in the face; that while in case of a unanimous opinion of the Managing Committee (Board of Governors in the present case), the services of employees could be terminated when such services were prejudicial to the interest of the institution, they were required to be given six (6) months notice or salary in lieu thereof and the consent of the Director of Education had to be obtained in writing. The appellants were paid three (3) months salary initially and subsequently the rest of the amount was deposited in their bank accounts, but the consent of the Director of Education was not obtained. 10. The aforesaid position led to an adverse order by the Tribunal on 10.1.2002. The Management app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll back-wages should be the rule. On the other hand, learned senior counsel for the Management pleaded that in a prestigious educational institution, the environment cannot be permitted to be vitiated in this fashion by the appellants, who behaved irresponsibly causing grave damage to the reputation of the institution. It was pleaded that the principles applicable to a factory or an industrial establishment cannot be made applicable to an educational institution, insofar as the extent of discipline is concerned, and the mode and manner of protests cannot be identically based. The effect of the conduct of the appellants would have a direct impact on the young students, who are studying in the institution, and the embarrassment was aggravated by the presence of the parents on the special day. It was further pleaded that a technical non-compliance with the provision of the said Act cannot be extended to this extent, and that it is because of such technical non-compliance that the Management had, in principle, agreed to accept the verdict of the Division Bench, by not agitating the matter further. He also submitted that the compensation awarded by the Division Bench was adequate, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of confidence in the employees, by the Board of Governors. The decision by the Board of Governors, which is really the Managing Committee as defined under Section 18 of the said Act, was a unanimous one as provided in sub-clause (iii) of the second proviso to Section 18 of the said Act, and even the required salary was paid, albeit in two instalments. However, the Management did commit a legal default in not obtaining the consent of the Director of Education in writing, which has caused this long drawn legal battle. At the cost of repetition, we may re-emphasise that the Mayo College is a recognised institution but is not financially aided in any manner by the Central or the State Government, and the first proviso to Section 18 of the said Act has already been read down, and in our opinion, rightly so, in view of the 11 Judges Bench decision in T.M.A. Pai Foundation Ors. v. State of Karnataka Ors., supra dealing exclusively with educational institutions, and a portion thereof, separately dealing with unaided educational institutions, as pointed out by learned senior counsel for the Management, Mr. K.N. Bhatt, under the heading of Private Unaided Non-Minority Educational Inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that there should not be specific performance of a master-servant contract of service, and damages should be the appropriate remedy. We may refer to Vidya Ram Misra v. Managing Committee, Shri Jai Narain College, (1972) 1 SCC 623. where in para 4, it was observed as under: 4. It is well settled that, when there is a purported termination of a contract of service, a declaration that the contract of service still subsisted would not be made in the absence of special circumstances, because of the principle that courts do not ordinarily enforce specific performance of contracts of service (see Executive Committee of U.P. State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi [AIR 1970 SC 1244 : (1970) 2 SCR 250 : (1970) 1 SCJ 790] and Indian Airlines Corporation v. Sukhdeo Rai [AIR 1971 SC 1828] ). If the master rightfully ends the contract, there can be no complaint. If the master wrongfully ends the contract, then the servant can pursue a claim for damages. So even if the master wrongfully dismisses the servant in breach of the contract, the employment is effectively terminated. In Ridge v. Baldwin [(1965) 2 WLR 935 (HL)] Lord Reid said in his speech: The law regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvant is not declared to be a nullity however wrongful or illegal it may be. The reason is that dismissal in breach of contract is remedied by damages. It (sic.) To be read as In the case of servant of the State or of local authorities or statutory bodies, courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation of the provisions of the statute. Apart from the intervention of statute there would not be a declaration of nullity in the case of termination or dismissal of a servant of the State or of other local authorities or statutory bodies. 19. The courts keep the State and the public authorities within the limits of their statutory powers. Where a State or a public authority dismisses an employee in violation of the mandatory procedural requirements or on grounds which are not sanctioned or supported by statute the courts may exercise jurisdiction to declare the act of dismissal to be a nullity. Such implication of public employment is thus distinguished from private employment in pure cases of master and servant. 22. The facts of the present case are covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the award of damages. The attention of the Court was also drawn to para 38.7, where it recorded the observations made in J.K. Synthetics Ltd. V. K.P. Agrawal Anr. (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service, as a right, is contrary to the ratio of the judgments of three Judge Benches in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (1979) 2 SCC 80. and Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi (1980) 4 SCC 443, and thus, cannot be treated as good law. The judgment emphasises on the restoration of an employee to the position held before dismissal, removal or termination from services, once the employer s action has been found to be illegal. Since the employee is deprived of sustenance for himself and his family, it has been observed that the employee should get full back-wages unless it can be proved that the employee was gainfully employed during that period. In order to support this proposition, various judicial pronouncements have been referred to, but which are in the context of adjudication under the Industrial Disputes Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequences of the same. 28. It is also true that the direction of attack, on behalf of the appellants, in the proceedings in the courts below was qua restoration of their services. No clarity has emerged on the issue, in the absence of any evidence led, on the employment, if any, of these appellants. But no affidavit has also really been filed stating that they were not gainfully employed. We may note that both the appellants have been residing in the accommodation provided by the respondent-Institution, practically free of charge. 29. We cannot lose sight of the fact that the present case is not one under the Industrial Disputes Act, 1947. This in turn would have required factual matrix to be established in different aspects, which is not what has happened. Thus, the principles of the Industrial Disputes Act, 1947 cannot be, ipso facto, imported into a factual matrix of the present nature, for, as a consequence of the illegality in the termination of the services of the appellants, compensation has to be granted. The methodology of calculation would be based on the principle of wrongful termination of an employee, under the master-servant relationship. This, in turn, would impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for five (5) years, it would be approximately ₹ 9.75 lakhs. In the case of Kailash Singh, the amount as per the calculations of the Management would be approximately ₹ 21 lakhs, while calculated as aforesaid would be approximately in the same range. 35. On having carefully examined the aforesaid issue and the calculations before us, we are inclined to enhance it a little more, and grant damages in the form of salary and allowances payable for a period of eight (8) years, of the actual amounts, in both the cases, after adding the respective provident fund amounts and other retiral dues while simultaneously deducting electricity, water and occupation charges, etc., as calculated by the management, as per the impugned order of the Division Bench. To put a quietus to this long-drawn dispute, we have quantified and fixed the amounts. The net impact is an all-inclusive compensation of ₹ 25 lakhs, in the case of Kailash Singh and ₹ 18 lakhs in the case of Jeffry Jobard. Needless to say, the amount of ₹ 5 lakhs, already paid to the appellants, in pursuance to the directions of this Court, is liable to be adjusted from the said amounts payable. 36. We a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
