Secretary, Akola Taluka
Education Society & Anr Vs. Shivaji and Ors  Insc 369 (5 April 2007)
S.B. Sinha & Markandey Katju
CIVIL APPEAL NO. 1816 OF 2007 [Arising out of SLP (Civil) No.13907 of 2006]
S.B. SINHA, J :
The State of Maharashtra enacted 'The Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977 (for short, 'the Act') to
regulate recruitment and conditions of service of employees in certain private
schools. It came into force with effect from 20.03.1978.
'Private School' has been defined in Section 2(20) of the Act to mean :
"Private School", means a recognized school established or
administered by a Management other than the Government or a local
The terms 'recognized' and 'school' have been defined in Section 2(21) and
2(24) respectively in the following terms :
"2(21).-"Recognized" means recognized by the Director, the
Divisional Board or the State Board, or by any officer authorized by him or by
any of such Boards;"
"2(24).- "School", means a primary school, secondary school,
higher secondary school, junior college of education or any other institution
by whatever name called including technical, vocational or art institution or
part of any such school, college or institution, which imparts general,
technical, vocational, art or, as the case may be, special education or
training in any faculty or discipline or subject below the degree level;"
Appellant No.1 herein runs a training institute. It imparts vocational
training to the students admitted therein in different disciplines e.g.
Draftsman Civil, Electrician, Wireman, Welder and Fitter etc. The strength
of the students in the aforementioned disciplines allegedly began to go down
from year to year. So much so, no student took admission in the courses of
'Draftsman Civil' or 'Welder'. The relevant portion of the chart showing
details of admissions in the aforementioned disciplines reads as under :
Academic Year Draftsman Civil Electrician Wireman Welder Fitter Sanctioned
strength Actual admission Sanctioned strength Actual admission Sanctioned
strength Actual admission Sanction ed strength Actual admission Sanction ed
strength Actual Admission 14 August 1998 16 08 16 18 16 18 16 18 24 26 15
August 1999 16 09 16 18 16 09 16 18 24 19 16 August 2000 16 07 16 17 16 07 16
12 24 14 17 August 2001 16 00 16 09 16 06 16 05 24 11 18 August 2002 16 00 16
01 16 05 16 00 24 02 Similarly, in the certificate courses of six months and
one year also, there had been a steady decline, as would appear from the
following charts :
"Details of Admission for Certificate Courses of six months Sr.
Academic Year Electric Motor & Armetcher Winding Electronic Assembly
Trouble shooting Sanctioned Strength Actual Admission Sanctioned Strength
Actual Admission 1.
Jan. 1999 20 13 25 10 2.
Jul. 1999 20 16 25 05 3.
Jan. 2000 20 05 25 06 4.
Jul. 2000 20 15 25 07 5.
Jan. 2001 20 08 25 -- 6.
Jul. 2001 20 06 25 -- 7.
Jan. 2002 20 -- 25 -- 8.
Jul. 2002 20 -- 25 -- Details of Admission for Certificate Courses of one
Academic Year Tailoring &
Cutting Lathe Machine Operator Computer Operation (Part-time) Sanctioned
Strength Actual Admission Sanctioned Strength Actual Admission Sanctioned
Strength Actual Admission 1.
Jul. 1998 40 34 25 17 20 -- 2.
Jul. 1999 40 24 25 09 20 -- 3.
Jul. 2000 40 26 25 05 20 -- 4.
Jul. 2001 40 32 25 06 20 -- 5.
Jul. 2002 40 -- 25 -- 20 -- "
Respondent No. 1 herein was appointed on a temporary basis. The services of
the private respondents were purported to have been temporarily terminated as
allegedly a decision had been taken to close down the institute with effect
from 12.08.2002, contending that the said purported orders of termination were
violative of the Act and the Rules framed thereunder.
Appeals thereagainst were filed by the aggrieved employees/teachers before
the School Tribunal, Pune Region. The jurisdiction of the Tribunal to entertain
the said appeals was questioned on the ground that the institute in question
was not a school within the meaning of the provisions of the said Act. The
Tribunal, however, in its judgment held : (i) As the appellant was duly
recognized by the Central Government permanently without grant-in- aid, it was
a school within the meaning of the provisions of the said Act; (ii) Inter alia,
on the premise that the services of all the staff and teachers were not
terminated, the plea of the appellant that the institute had to be closed down
being incorrect, the orders of termination were mala fide;
The Tribunal furthermore took note of the fact that during pendency of the
said appeals, some new teachers had been appointed.
The writ petition preferred by the appellant thereagainst has been dismissed
by reason of the impugned judgment.
Mr. Shekhar Naphade, the learned Senior Counsel appearing on behalf of the
appellants, would urge :
(i) The institute is not covered by the definition of the 'private school'
within the meaning of the provisions of the said Act, as it was not recognized
by the authorities under the said Act.
(ii) The Tribunal in its judgment merely proceeded on the basis that the
school, in fact, was not closed down, but having failed to take into
consideration the charts filed before it; from which, it would appear that the
number of students had gone down in different disciplines, and thus, the
impugned judgment cannot be sustained.
(iii) The Tribunal wrongly allowed full back wages to the teachers without
taking into consideration the financial condition of the appellant.
Our attention, in this behalf, has also been drawn to the following
statements made in the Rejoinder to the Counter Affidavit of Respondent Nos. 1
to 3 before this Court :
"I say that the details of the number of students currently studying in
the Institute and the fees collected from them are as follows :
Students studying in 2nd year of ITI 47 x Rs.6,000 (Fees collected from
every student) Rs.2,82,000/- Students studying in 1st year of ITI 72 x
Rs.8,000/- (Fees collected from every student) Rs. 5,76,000/- Students studying
in certificate course 7 x 2,000 (Fees collected from every student) Rs.14,000/-
Total Rs.8,72,000/- I say that the details regarding the expenses incurred by
the Petitioner on the salary and other miscellaneous expenses are as follows :
Towards salary of staff at current rate of consolidated pay Rs. 65,200/- per
month x 12 months Rs.7,80,400/- per annum 2.
Expenses for raw material per student per year (Rs.2400) Rs.2,400 x 126 (No.
of students) Rs.3,02,400/- 3.
Misc. Expenses (Telephone bill, electricity bill, stationery, travel
expenses, repairs, etc.
Rs.2,00,000/- Total Rs.12,82,800/- Considering the above mentioned two
tables, it becomes clear that the Petitioner is facing a deficit of
Rs.4,10,800/- in the current academic year. The Petitioner if is directed to
pay 100% back wages to the Respondents employees, it would create a burden of
more than Rs. 40 lacs. The Petitioner is not in a position to pay back wages
and the said direction would affect the poor students, who are studying in the
Institute and the efforts of the Management to re-establish the Institute would
be thwarted. It is respectfully submitted that the institute is being run by
reducing the tuition fees so as to attract the higher number of students. As
stated earlier the fees charged from the students have dwindled from
Rs.20,000/- per annum in the year 1998 to Rs.6,000/- to 8,000/- at
It was furthermore submitted that the institute having been set up in a
tribal area, it is unlikely that many students would take admission in the said
institute in future.
Mr. Vinayak Dixit, the learned Senior Counsel appearing on behalf of the
respondents, on the other hand, supported the impugned judgment contending that
the plea taken by the appellant that the school was required to be closed down
was an act of mala fide on the part of the appellants. The learned counsel
would contend that in terms of Rule 26 of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981, as the appellant was bound to give
three months' notice and was furthermore required to obtain prior approval of
the competent authority specified therein; and as the mandatory conditions for
retrenching the services of the respondents had not been complied with, the
orders of termination were void ab initio.
It was submitted that the appellant had not paid any salary to the teachers
for the last 23 months, although they had been reinstated in terms of this
Court's order dated 19.08.2006. It was also submitted that even after their
reinstatement, they are being paid salary only on a consolidated basis.
The question as to whether the provisions of the said Act were applicable in
the case of Appellant school although raised a question of jurisdiction, in our
opinion, it was necessary for the appellant to plead the jurisdictional fact in
It is true that in the light of the interpretation clause contained in the
said Act, a 'private school' was required to be recognized by the authorities
specified therein. The Tribunal had found that it was recognized by the Central
Government. The State also in its counter affidavit contended that it is
recognized by the State. Appellant herein did not raise a contention before the
Tribunal that the institute in question was not recognized by the authorities
specified under sub-section (21) of Section 2 of the Act. The said contention
was required to be specifically raised so as to enable the respondents herein
to meet the same. As the jurisdictional fact required for determining the
jurisdiction of the Tribunal had not been stated by the appellants, we are of
the opinion that such a contention cannot be allowed to be raised before us for
the first time.
There cannot be any doubt whatsoever that if the 'institute' comes within
the description of 'school' in terms of the provisions of the said Act, before
terminating the services of the respondents, it was obligatory on their part to
satisfy the conditions precedent therefor.
Rule 26 of the Rules provides that a permanent employee may be retrenched by
the management after giving him three months' notice on one or more grounds
specified therein. Stoppage of imparting coaching in respect of some courses of
studies was one of them. Admittedly, the respondents had not been given three
months' notice. The order of termination was, therefore, bad in law.
We may, however, state that in view of the provisions contained in
sub-clause (ii) of clause (2) of Rule 26, it was not necessary to obtain prior
approval of the Education Officer, as a technical or a vocational school does
not come within the purview thereof. There cannot furthermore be any doubt
whatsoever that the contention raised by the appellants before the Tribunal
that the institute was required to be closed down was found to be factually
incorrect and on that ground the decision of the Tribunal to the effect that
the termination of services of the respondents were bad in law cannot be said
to be suffering from any error of law apparent on the face of the records.
The Tribunal, however, in our opinion ought not to have granted full back
wages. Full back wages, as is well-known, should not be directed to be granted
only because it would be lawful to do so. Before such an order is passed, a
judicial or a quasi-judicial authority must consider all aspects of the matter.
Appellant herein has produced facts to show decline in strength of the students
in different disciplines. The same has not been disputed. We have noticed
hereinbefore that in some disciplines the strength of the students has
considerably gone down. The school is an unaided one. It, therefore, must meet
its financial need from the fees realized from the students. It was a relevant
consideration. The Tribunal, in our opinion, failed to take the said fact into
consideration. The financial condition of the school, as noticed supra, has
also not been denied or disputed.
It is now well-settled by a large number of decisions of this Court that
back wages should not granted automatically. In U.P. State Brassware
Corporation Ltd. and Anr. v. Uday Narain Pandey [(2006) 1 SCC 479], this Court
"22. No precise formula can be laid down as to under what circumstances
payment of entire back wages should be allowed. Indisputably, it depends upon
the facts and circumstances of each case. It would, however, not be correct to
contend that it is automatic. It should not be granted mechanically only
because on technical grounds or otherwise an order of termination is found to
be in contravention of the provisions of Section 6-N of the U.P. Industrial
[See also Banshi Dhar v. State of Rajasthan & Another 2006 (11) SCALE
199 Para 11] In U.P. SRTC v. Mutthu Singh [(2006) 7 SCC 180], this Court
"But we are fully satisfied that in the facts and circumstances of the
case, back wages should not have been awarded to the respondent-workman. In
several cases, this Court has held that payment of back wages is a
discretionary power which has to be exercised by a court/tribunal keeping in
view the facts in their entirety and neither straight jacket formula can be
evolved nor a rule of universal application can be laid down in such
[See also A.P. SRTC and Another v. B.S. David Paul - (2006) 2 SCC 282] We,
therefore, are of the opinion that in the peculiar facts and circumstances of
this case, interest of justice shall be met if grant of back wages is confined
to 25% only from the date of termination of the respondents till their
reinstatement. It is, however, made clear that the respondents shall be
entitled to receive entire salary for the period they had worked prior to their
termination as also post reinstatement.
The appeal is allowed to the aforementioned extent with the aforementioned
directions. However, in the facts and circumstances of the case, there shall be
no order as to costs.