1 13-caw-868-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.868 OF 2011 IN WRIT PETITION NO. 2042 OF 2009 Shaikshanik Seva Kendra, Hatgeghar & Others .. Applicants V/s. Shri Sikandar S. Beloshe & Others .. Respondents. Mr. S.S. Pakale, for Applicants. Mr.A.M. Joshi, for Respondents. CORAM : K.K.TATED, J. DATE : 29th JULY, 2011. P.C.: 1 Heard the learned counsel for the parties. 2 This Civil Application is preferred by the Original Petitioner for stay of the order dated 20th December, 2008 passed by the learned Presiding Officer, School Tribunal, Kolhapur in Appeal No.46 of 2006, directing 2 13-caw-868-2011.sxw Petitioner to reinstate the Respondent­Original Applicant on his original post with full back wages and continuity of service with effect from 31st January, 2000. 3 On the present Writ Petition, this Court granted Rule on 9th February, 2009 and the Rule on interim relief made returnable on 24th February, 2009. Thereafter, this Court by order dated 3rd March, 2011, directed Applicant to deposit the back wages payable to the Respondent­ employee from the date on which he filed Appeal No. 46 of 2006 i.e. from 29th June, 2006 within a period of eight weeks. 4 Thereafter, the Petitioner preferred present Civil Application. 5 A few facts of the matters are as under:­ The Respondent was serving as Assistant Teacher with the Applicant's school since its inception. It is the case of the Applicant that the Respondent­employee has tendered his resignation letter dated 23rd January, 2000 and it was accepted by the management with effect from 31st January, 2000. Being aggrieved by the said act of the Applicant, the Respondent­employee filed Appeal under section 9 of the Maharashtra Employees of Private Schools (conditions of Service) Regulation (herein after referred as “the said Act”) Act, 1977 before the school tribunal, 3 13-caw-868-2011.sxw Kolhapur. The said Appeal was allowed by the learned Presiding Officer, School Tribunal, Kolhapur, declaring that the termination of the Respondent from the service on the basis of the resignation letter dated 23rd January, 2000 is illegal and bad in law and the same is liable to be set aside. School Tribunal further directed Applicant­Management to reinstate the Respondent­employee on his original post with full back wages and continuity in service with effect from 31st January, 2000. It is to be noted that the tribunal in paragraph 24 of the impugned order dated 20th December, 2009 categorically held that the Applicant on the strength of resignation dated 23rd January, 2000 obtained by force terminated the Respondent's service with effect from 31st January, 2000. It is further observed by the Tribunal that the Respondent­employee being a permanent employee his resignation has to be accepted after three months or by paying three months salary. There is no material on record showing that the Applicant had paid three months salary to the Respondent­employee while accepting his alleged resignation letter dated 23rd January, 2000. It is further observed by the Tribunal that on the basis of material placed on record, Respondent­employee was called in the school by the Applicant on Sunday i.e. 23rd January, 2000 and obtained his resignation by threatening him to cut his legs and hands and to kill him. The Applicant very hurriedly accepted the said forced resignation within seven days without following the statutory provisions and, therefore, the said resignation was not 4 13-caw-868-2011.sxw tendered voluntarily by the Respondent­employee. In this back ground, the Tribunal allowed Respondent­employee's Appeal, directing Applicant to reinstate the Respondent with full back wages. 6 The learned counsel appearing for the Applicant submits that during pendency of the present Writ Petition, they had appointed some other teacher and, therefore, it is not possible for them to reinstate the Respondent­employee in his original post in their school. He further submits that the Tribunal without considering the evidence on record, held that the resignation tendered by the Respondent­employee was obtained by force. He further submits that the impugned order dated 20th December, 2008 is contrary to the principles of natural justice and against justice, equity and good conscience and the same is liable to be set aside. He further submits that this Court by order dated 3rd March, 2011 directed Applicant to deposit the back wages payable to the Respondent­employee from the date on which he filed the Appeal No.46 of 2006 i.e. from 29th June, 2006. He submits that as per their calculation, on the basis of basic pay considering Rs.6,200/­ + DA+HRA+TA – total amount from June, 2006 till January, 2009 works out to Rs.4,16,631/­. He also submits that chart showing basic pay at the rate of Rs.11,540/­ is as per 6th pay commission. The total amount of back wages till December, 2008 comes to Rs.5,28,880/­ considering 6th pay commission. The learned counsel 5 13-caw-868-2011.sxw appearing for the Applicant submits that this Court as well as Tribunal directed only to pay full back wages to the Respondent­employee and, therefore, there is no question of considering the other benefits which the Respondent is entitled during the service period at the time of calculation of back wages. The learned counsel appearing for the Applicant submits that the school is maintained by the Mathadi workers and their financial position is not so sound and strong. Therefore, considering these facts, the impugned order passed by the Tribunal dated 20th December, 2008 be stayed. 7 On the other hand, the learned counsel appearing for Respondent No.1 vehemently opposed the present Civil Application. He submits that though the School Tribunal passed order on 20th December, 2008, till today, the Applicant failed to comply with the same by reinstating Respondent­employee in his original post. Not only that, the Applicant failed to pay the full back wages. He submits that as per Respondent­ employee's calculation, the total amount due and payable by the Applicant from June, 2006 to March, 2011 comes to Rs.10,99,122/­. He submits that the Tribunal directed to pay the full back wages till the reinstatement. In spite of that, the Applicant submits the calculation of back wages made only up to December, 2008 which is contrary to the order passed by the Tribunal. Therefore, the Applicant be directed to reinstate the Respondent­employee 6 13-caw-868-2011.sxw on his original post with full back wages as per calculation submitted by him. 8 The calculations submitted by Applicant as well as Respondent No.1 taken on record and marked as “X” and “X­1” (colly.) for identification. 9 In respect of reinstatement, it is not possible at this stage to direct the Applicant to reinstate Respondent No.1 in service because, the Applicant had already appointed some other person in his place. Therefore, I do not find any reason to direct the Applicant to reinstate Respondent No.1 in service at present as per the order passed by the School Tribunal. The question of back wages remains. 10 The learned counsel appearing for Applicant submits that 6th pay commission has been already made applicable to their school from 2009 with retrospective effect. He submits that arrears calculated as per the 6th pay commission payable to other staff members are deposited in the Employees' Provident Fund account. 11 I have gone through the calculations submitted by the Applicant as well as Respondent No.1. The chart of Respondent No.1 shows added grade pay and revised basic pay, at the time of calculating the back 7 13-caw-868-2011.sxw wages. On the basis of Respondent No.1's chart, the Applicant is liable to deposit a sum of Rs.10,99,122/­. It is to be noted that the Tribunal has granted only back wages without any other benefits, they are entitled to. Therefore, it is not possible to consider the Respondent No.1's chart, directing Applicant to deposit a sum of Rs.10,99,122/­. Considering the chart prepared by the Applicant, it is admitted fact that the said chart is only upto December, 2008. In any case, the Tribunal has directed the Applicant to pay full back wages till his reinstatement. Therefore, the Applicant is liable to pay the back wages till today. In view of these facts, Applicants are directed to calculate the back wages of Respondent No.1 considering the basic pay of Rs.11,540/­ along with Grade Pay+DA+HRA +TA till July, 2011 and deposit the same in this Court within four weeks from today, including the amount already deposited in this Court i.e. sum of Rs.2,50,000/­ 12 With these directions, Civil Application is allowed. Impugned order passed by the School Tribunal dated 20th December, 2008 is stayed on deposit of back wages as directed herein above. 13 Civil Application is disposed of accordingly. (K.K.TATED, J.)