Pathshala, Allahabad Andanr. Vs. Rajendra Prasad & Anr
 INSC 379 (8
K.J. (J) Shetty, K.J. (J) Ahmadi, A.M. (J)
1990 AIR 415 1989 SCR Supl. (2) 450 1989 SCC Supl. (2) 732 JT 1989 Supl. 381
1989 SCALE (2)1394
& Services: Educational institution registered under the Societies
Registration Act--Reinstatement of dismissed official by Court--Consideration
to be taken into account--Contract for personal service--Whether enforceable.
was appointed on 15.7.1962 as a Chemistry lecturer in Kulohaskar Ashram Agriculture Intermediate College run by the appellant society. By a
communication dated 20.6.1963, he was informed by the management that his
services were no longer required after 15.7.1963. He filed a civil suit for
permanent injunction restraining the management from proceeding with the
proposed action. But the management having withdrawn the letter, he withdrew
the suit as having become infructuous. However on 28.8.1964, the respondent was
placed under suspension whereupon he again filed a civil suit for a declaration
that the order of suspension was illegal. The trial court dismissed the suit
but the first appellate court allowed the appeal and decreed the suit as prayed
for. On appeal the High Court affirmed that decision, on 9.4.69. During the pendency
of the appeal before the High Court, the management-appellant had passed a
fresh order suspending the respondent pending enquiry on certain allegations.
The respondent again filed a civil suit to challenge the competency of the
managing committee to take action against him. In the said suit he also pleaded
that the prior approval of the District Inspector of Schools having not been
taken, the order placing him under suspension was bad. The Munsiff Court accepted the suit and declared the
suspension order as illegal and void. The first appellate court reversed that
order and the respondent preferred second appeal to the High Court.
the pendency of the respondent's second appeal, U.P. Secondary Educational Laws
(Amendment) Act, 1976 came into force from 18.8.76 which inter alia provided
that prior approval of the District Inspector of School was necessary before
any action could be taken against teaching staff of a college. The respondent
sought to amend the pleadings of second appeal in consonance with the Act but
451 the High Court declined but he succeeded on this question before this
with the litigation set out above, the respondent filed a suit for recovery of
arrears of salary, past pendente lite and future. It was claimed for the period
between 21.2.1964 and 20.2.1967. The trial court decreed the suit for
Rs.7812/92 p. being the arrears of salary for the period of three years. The
management appealed to the District Court and the respondent filed
cross-objection. As stated earlier, the second appeal preferred by the
respondent was pending in the High Court. Hence the parties moved the High
Court for withdrawing the appeal pending before the District Court for being
disposed of along with the second appeal No. 2038/1970, which request was
accepted and the said appeal came to be registered as First Appeal No. 460 of
1982. The High Court disposed of both the appeals by a common judgment whereby the
second appeal was dismissed and the finding as to the validity of the
suspension order was confirmed. However the First Appeal was allowed and the
decree of the trial court was reversed and a suit for arrears of salary filed
by the respondent was dismissed. The respondent appealed to this Court and his
appeal was allowed and his claim to salary between 20.2.1964 to 15.1.1966 was
settled at Rs. 10,000 and the court further held that the order of suspension
ceased to be operative w.e.f. 17.10.1975.
the respondent on May
18, 1986 moved the
High Court under Article 227 of the Constitution for a writ of Mandamus against
the State of U.P. and the management of the College
for his reinstatement in service and for payment of entire arrears of salary.
The High Court accepted the writ petition and granted him the relief asked for.
Hence these appeals by the Management of the school and the State of U.P.
the appeals, this Court,
Indeed, the reinstatement would be an unwise move from any point of view. In
educational institutions, the Court cannot focus only on the individual. The
Court must have regard to varying circumstances in the academic atmosphere and
radically changed position of the individual sought to be reinstated. The court
must have regard to interests of students as well as the institution. [459E] In
the instant case, during the gap of twenty-five years, the respondent must have
clearly lost touch with Chemistry as well as the 452 art of teaching. It must
have been also deeply buried and disintegrated under the new acquisition of his
legal knowledge. Reinstatement of such a person seems to be unjustified and
uncalled for. [459G] Legal profession may not be considered as an employment
but the income from profession or avocation if not negligible, cannot be
ignored while determining damages or back wages for payment. [463G] In a case
like this. the Government cannot be saddled with the liability to make payment.
There is no relationship of master and servant between Government and
respondent and such relationship existed only between the management and
respondent. So far as statutory liability to pay salary to teacher is
concerned, the Government has been paying salary to Dr. Gopendra Kumar who has
since been appointed as Lecturer in the place of the respondent. Therefore, the
management alone should pay the amount ordered. [464D-E] Vaish Degree College v. Lakshmi Narain,  2 SCC 68;
v. District Board, Agra and Anr.,  3 SCR 55, 59; The
Executive Committee of U.P. Warehousing Corporation Ltd. v. Chandra Kiran Tyagi,
 2 SCR 250, 265; Bank of Baroda v. Jewan Lal Mehrotra,  3 SCC 677
and Sirsi Municipality v. Kom Francis,  3 SCR 348; Smt. J. Tiwari v. Smt. Jawala
Devi Vidya Mandir & Ors.,  4 SCC 150; Deepak Kumar Biswas v. The
Director of Public Instructions,  4 SCC 160; Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvaran Jayanti Mahotsav Samarak Trust & Ors. v.V.R. Rudani
& Ors.,  2 SCC 691 at 697; TrilokChand Modichand & Ors. v. H.B. Munshi
& Anr.,  2 SCR 824; Maimoona Khatun & Anr. v. State of U. P. & Anr.,  3 SCR 676; Managing Director
U.P. Warehousing Corporation & Anr. v. Vinay Narain Vajpayee,  2 SCR
773; Maharaja Sayajirao University of Baroda & Ors. v. R.S. Thakur, AIR
1968 SC 2112 and S.M. Saiyad v. Baroda Municipal Corporation,  Supp. SCC
378, referred to.
APPELLATE JURISDICTION: Civil Appeal No. 917 of 1989 etc.
the Judgment and Order dated 15.12.1988 of the Allahabad High Court in C.M.W.P.
No. 10059 of 1987.
Prasad, Satish Chandra, Mrs. S. Dixit and Mukul Mudgal for the Appellants.
A.K. Srivastava for the Respondents.
Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. This is the
third time the matter is coming before this Court and we hope that this is the
last of a series of litigations between the parties.
have been helpfully provided with a chronology of the events leading up to this
appeal. It is important that the chronology is made clear. It is as follows:
At Allahabad, there is a private college called
"Kulbhaskar Ashram Agriculture Intermediate College". It is run by the "Kayastha
Pathshala" which is a society registered under the Societies Registration
Act. Rajendra Prasad, the common respondent in the appeals, was a Chemistry
lecturer in that College. He was appointed on 15 July 1962 in the scale of Rs. 175-10-2 15. On 20 June 1963, the management wrote to him
stating that his services would not be required after 15 July' 1963. It was
indeed a termination letter. The respondent moved the Civil Court with suit No. 422/1963 for
permanent injunction restraining the management from interfering with his
teaching work. The management resisted the suit inter alia, contending that the
respondent was appointed only for one year. He was removed after the period of
probation since his work was found to be unsatisfactory. It was also contended
that no injunction could be granted for enforcement of the contract of personal
service and the suit was not maintainable. On 20 May 1964, the Trial Court dismissed the suit as not maintainable. It
was also held that the suit had become infructuous since the management had
withdrawn the impugned communication.
seems that the management had withdrawn its earlier communication only to make
another order. On 28
August 1964, the
respondent was placed under suspension and he again approached the Civil Court for relief. He instituted suit No.
198 of 1964 in the Munsif
Court seeking a
declaration that the order of suspension was illegal. The trial court dismissed
the suit, but the appeal therefrom, F.A. No. 583/1965, was allowed by the First
Additional Civil Judge, Allahabad decreeing the suit as prayed for.
That decision was affirmed by the High Court in Second Appeal No. 1111 of 1966.
The High Court rendered the judgment on 9 April 1968.
the disposal of the appeal by the High Court, the manage454 ment made a fresh
order suspending the respondent pending enquiry on certain allegations That
order was issued on 30
January 1966. This order was also the subject matter of a suit. The respondent
filed Civil Suit No. 48 of 1966 in the Munsif Court at Allahabad challenging the competency of the
managing committee to take action against him. He also contended that the prior
approval of District Inspector of Schools (DIOS) was not taken for placing him
under suspension The Munsif Court accepted the suit and declared that the
suspension order was illegal and void. But the management successfully took up
the matter of Civil Appeal No. 117 of 1969 before the Additional Civil Judge.
appeal was allowed reversing the trial court decree and upholding the
respondent's suspension. The respondent preferred second appeal to the High
Court and it was numbered as S.A. No. 2038 of 1970. We may stop here for a
moment and refer to some other events.
the pendency of the said second appeal in the High Court, the U.P. Secondary
Education Laws (Amendment) Act, 1976, was brought into force with effect from 18 August 1976. The provisions thereunder required
the management of the college to take prior approval of DIDS for taking any
action against teaching staff. The respondent took advantage of those
provisions and made an application for amendment of his plaint to incorporate
additional paragraphs 13-A and 14(g). In the additional paragraphs, he
challenged the validity of the suspension order since management did not take
prior permission of the DIOS. It was alleged that the suspension order became
invalid and inoperative on the expiry of 60 days from the date of service.
State of Uttar Pradesh was not a party to the original
suit. For the first time, on 31 October 1980
the respondent made an application for impleading the State of U.P. and DIOS as supplemental respondents to the appeal.
was perhaps necessitated in view of the liability of the State Government to
pay salaries to teachers under the U.P.
High School and Intermediate College (Payment of Salaries of Teachers
and Other employees) Act, 1971. Section 10(1) of the Act provides that the
State Government shall be liable to payment of salaries of teachers and
employees of every institution due in respect of any period after March 31, 1971.
High Court did not consider it necessary to allow the said amendment of the
plaint. But the respondent succeeded in this Court. By order dated 20 April 1980 the Court allowed his appeal and
455 directed the High Court to allow the amendment. The second appeal No. 2038
of 1970 thus fell for consideration in the light of fresh points raised in the
as to proximity, there is one other related litigation between the same
parties. It is now necessary to refer to it. The respondent filed a suit for
recovery of arrears of salary past, pendente lite and future. It was claimed
for the period between 21
February 1964 and 20 February 1967. That suit was filed in 1968 and
registered as Civil suit No. 53 of 1968. On 31 July 1969, the trial court decreed the suit for Rs.7812.92 being the
arrears of salary for the period of three years. The management of the college
appealed to the District Court in Civil Appeal No. 268 of 1969. The respondent
filed a cross objection to the extent of the relief denied to him. The second
appeal no. 2038 of 1970 was then pending in the High Court. It seems that the
parties moved the High Court for withdrawal of C.A. No. 268 of 1969 from the
District Court for being disposed of along with the second appeal No. 2038 of
1970. That request was allowed and the said appeal was withdrawn. It was
renumbered by the High Court as First Appeal No. 450 of 1982.
High Court disposed of both the said appeals by common judgment dated 22
October 1982. The second appeal No. 2038 of 1970 was dismissed confirming the
finding of the Additional Civil Judge as to the validity of the suspension
order. The first appeal No. 450 of 1982 was allowed reversing the decree of the
trial court and dismissing the respondent's suit for arrears of salary. His
claim for pendente lite salary also vanished along with that.
respondent stopped into this Court for the second time. Being aggrieved by the
decision of the High Court, he appealed to this Court in C.A. No. 5891 of 1983.
The appeal was allowed by a brief order dated 25 September 1986 which has since
been reported in AIR 1987 SC 1644. For immediate reference we may set out the
High Court in the judgment recorded the following findings:
result is, as noticed above, that although it cannot be said that the order dated
30 December 1965/7 January 1966 suspending the plaintiff from service of the
defendant college was illegal or null and void inoperative against the 456
plaintiff from its inception, it did cease to be operative with effect from 17
October 1975 on the expiry of 60 days from the commencement of the U.P.
Secondary Education Laws (Amendment) Act, 1975.
recorded this finding, the High Court refused to exercise its discretion to
grant a declaration that the order of suspension ceased to be operative with
effect from 17 October 1975. We think that the High Court was wrong in refusing
to grant the declaration. We, therefore, declare that the order of suspension
ceased to be operative with effect from 17 October 1975. The appeal against the
judgment of the High Court in second appeal No. 2038 of 1970 is disposed of
appeal against the judgment of the High Court in First Appeal No. 450 of 1982
we do not see how the appellant can be denied his salary for the period between
20 February 1964 to 15 January 1966, the date on which the effective order of
suspension was communicated to him. Instead of sending the case back to the
trial court for determining the amount, we think that a decree may straight
away be passed for a sum of Rs. 10,000 which will include salary for the
period, interest up to date and costs." With due apologies for this
lengthy introduction, we then come to the proceeding out of which the present
appeals arise. On 18 May 1986 the respondent moved the High Court under Article
226 of the Constitution seeking a writ of Mandamus against the State of U.P.
and management of the college for his reinstatement in service with payment of
entire arrears of salary. He rested his case on the aforesaid decision. This
High Court accepted the writ petition and gave him all the reliefs asked for.
the validity of suspension order, the High Court remarked:
order of suspension being illegal was correctly set aside by the Supreme Court
after the enforcement of U.P. Secondary Education Laws (Amendment) Act, 1975 as
none of the conditions mentioned in sub-section (5) of Section 16-G of the Act were
fulfilled as no charges were framed against the petitioner, nor any charge
sheet was served on him .............. The petitioner, therefore, 457 could not
have been suspended and the order of suspension, in our view, was void ab initio.
law there was no provision to keep the petitioner under suspension for more
than 21 years without enquiry being held and without any charge sheet being
submitted. The petitioner has a legal right to continue in service and we
direct him to be reinstated forthwith." As regards the arrears of salary,
the High Court observed:
the order of suspension ceased to be operative and was ab initio void from its
very inception, the petitioner shall be deemed to be in continuous service.
That application of the petitioner was sent to State of U.P.
the Education Secretary and also the District Inspector of Schools. The
District Inspector of Schools has already sent a letter dated 7.1. 1987 (Annx.
28) to the Manager, Kulbhaskar Ashram Agriculture Intermediate College, Allahabad about the payment of arrears of salary to the petitioner.
But the Manager and the State of U.P.
do not seem to be interested in making payment of arrears of salary to the
petitioner. We are accordingly of the opinion that the petitioner has made out
a case for issuance of a writ of mandamus directing the State of U.P. and the
District Inspector of Schools, Allahabad to make payment of arrears of salary
to the petitioner in view of Section 10 and prior to that date the arrears of
pay and other emoluments would be payable by the institution. In case the
institution fails to make payment the procedure under Section 11 of the Payment
of Salaries Act may be adopted." Finally, the High Court issued the
view of the premises aforesaid, the present petition succeeds and is allowed
Respondents Nos. 1 and 2 the State of Uttar Pradesh and the District Inspector
of Schools, Allahabad are directed to make payment of salary to the petitioner
since 16.1.1966 till date, forthwith including D.A. and other emoluments
admissible under law, of course, after deducting the amount, if any, paid to
him as subsistence allowance during the period of his suspension. We further
add that the petitioner shall be reinstated forthwith and shall be paid his
salary regularly in accordance 458 with the provisions of Section 3 of the
Payment of Salaries Act, 1971." Challenging the judgment of the High
Court, the management as well as State Government by obtaining leave have now
appealed. This how the matter is coming before the Court for the third time.
first question for consideration is whether the High Court was justified in
directing reinstatement of the respondent? There is a long established rule of
Courts that service contract cannot be specifically enforced. There are,
however, three exceptions which have been adverted to in very many cases. In Vaish Degree College v. Lakshmi Narain,  2 SCC 68
at 71 after examining a large v. number of authorities like: S.R. Tiwari v.
District Board, Agra and Anr.,  3 SCR 55, 59: The
Executive Committee of U.P.
Corpora,on Ltd v. Chandra Kiran Tyagi,  3 SCR 250, 265: Bank of Baroda v. Jewan Lal Mehrotra,  3 SCC
677 and Sirsi Municipality v. Kom Francis,  3 SCR 348 the Court rounded off the
consideration of the authorities mentioned above, it is, therefore, clear that
a contract of personal service cannot ordinarily be specifically enforced and a
court normally would not give a declaration that the contract subsists and the
employee, even after having been removed from service can be deemed to be in
service against the will and consent of the employer. This rule, however, is
subject to three well recognised exceptions: (i) where a public servant is
sought to be removed from service in contravention of the provisions of Article
311 of the Constitution of India; (ii) where a worker is sought to be reinstated
on being dismissed under the Industrial Law; and (iii) where a statutory body
acts in breach or violation of the mandatory provisions of the Statute.
decision has been affirmed in Smt. J. Tiwari v. Smt. Jawala Devi Vidya Mandir
and Ors.,  4 SCC 160 and reiterated in Deepak Kumar Biswas v. The
Director of Public Instructions,  4 SCC 160 and adverted to in Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvaran Jayanti Mahotsav Samarak Trust and
Ors. v. V.R. Rudani and Ors.,  2 SCC 691 at 697. These authorities say
that a college owned by a private body, though recognised by or affiliated to a
Statutory University will not become a statutory body 459 since not enacted by
or under a statute. And the dismissed employee of such institution cannot get
specific performance of service contract:
submission for the respondent, however, was that the present case stands on a
different footing since there was no repudiation of the respondent's contract
of service. The contract of service, according to him is still subsisting and
it was, therefore, not inappropriate for the High Court to put the respondent
back into service. But counsel for the appellants added that the respondent
himself has abandoned his post after he was suspended and there was therefore
no need to terminate his service. The declaration made by the respondent when
he enrolled himself as an advocate in 1968 stating that he was not employed nor
engaged in any business or profession was relied upon to support the submission.
It is said that the law required that the respondent at the time enrolment must
have given particulars of his employment or of his business or trade it he had
one. He must have also produced a character certificate from the employer and
proved as to how the employment came to an end. Since he did not furnish any
such particulars counsel urged that it was a clear case of abandonment of
service and no specific order of termination was necessary.
could be said on both the contentions, but we refrain from expressing any
opinion since this is not a proper case for reinstatement. Indeed, the
reinstatement would be an unwise move from any point of view. In educational
institutions, the Court cannot focus only on the individual forgetting all
else. The Court must have regard to varying circumstances in the academic
atmosphere and radically changed position of the individual sought to be
reinstated. The Court must have regard to interests of students as well as the
institution. It is not unimportant to note that the respondent was out of
teaching for over 25 years. He seems to have taught Chemistry for one or two
years in 1962 and 1963. Thereafter, he did not teach Chemistry at any time in
any College. In 1964-65 he diverted his attention and sought admission in LL.B.
Degree Course. In 1968, he enrolled himself as an advocate and since then
concentrated only in law courts. In this gap of twenty five years he must have
clearly lost touch with Chemistry as well as art of teaching. It must have been
also deeply buried and disintegrated under the new acquisition of his legal
knowledge. Reinstatement of such a person seems to be unjustified and uncalled
next question for consideration is whether the respondent is entitled to
damages or salary as ordered by the High Court and if so what should be the
measure for determination? Counsel for the appel460 lants urged that the
respondent's claim for salary was the subject matter of previous litigation
which finally ended with a decree by this Court in C.A. No. 5891 of 1983 and it
was a final settlement of all his claims. It was also argued that in any event,
the respondent is not entitled to damages or salary for more than three years.
Our attention was drawn to the decision in Tilok chand Motichand & Ors. v.
B. Munshi & Anr.,  2 SCR 824.
reply and in support of the High Court order, counsel for the respondent
referred to us a number of decisions and in particular (i) Malmoona Khatun and Anr.
v. State of U.P. & Anr.,  3 SCR 676; (ii)
Managing Director, Uttar Pradesh Warehousing Corporation and Anr. v. Vinay Narain
Vajpayee,  2 SCR 773 and (iii) Maharaja Sayajirao University of Baroda
and Ors. v. R.S. Thakur, AIR 1969 SC 2112.
have read cases carefully, but it is not necessary to refer to them in detail
when we have guidance from binding precedents in similar cases. There is a triology
of cases on the question, See: (i) The Vaish Degree College, (ii) Smt. J. Tiwari
and (iii) Deepak Kumar Biswas to which brief reference was made earlier. in the
first of the three cases, the institution concerned was a degree college
managed by a registered co-operative society. The dismissed Principal of the
College filed a suit for reinstatement, inter alia, contending that the
management of the college though a society registered under the cooperative
societies Act was a statutory body since affiliated to the Agra University (and
subsequently to Meerut University). It was contended that the Principal's
termination was in violation of statutory obligation of the society, and
therefore, his reinstatement should be ordered. But that contention was not
accepted and the Court said (at 74-75):
the plaintiff/respondent served the institution for a short period of two years
only, i.e. from 1964 to 1966 and thereafter he was bereft of all his powers and
did not work in the college for a single day.
That if the declaration sought for or the injunction is granted to the
plaintiff/respondent the result would be that he would have to be paid his full
salary with interest and provident fund for full nine years, i.e. from 1966 to
1975, even though he had not worked in the institution for a single day during
(3) That consequent upon the declaration the appellant would have to pay a very
huge amount running into a lakh of rupees or perhaps more as a result of which
the appellant and the institution would perhaps be completely wiped out and
this would undoubtedly work serious injustice to the appellant because it is
likely to destroy its very existence.
is true that the plaintiff/respondent is not at fault,but the stark realities,
hard facts and extreme hardship of the case speak of themselves.
appears but by virtue of the interlocutory orders passed by this Court, the
appellant has already deposited Rs.9,000 before the High Court which was to be
withdrawn by the respondent after giving security, and a further sum of
Rs.9,100 being the salary of 13 months has also been deposited by the appellant
before the trial court under the orders of this Court. It is also stated by
Counsel for the appellant that the appellant has deposited Rs.3,000 more. We
feel that in the circumstances the respondent may be permitted to keep these
amounts with him and he will not be required to refund the same to the
amount of deposit in the High Court, if not withdrawn by the respondent may now
be withdrawn by him without any security and if he has already withdrawn the
amount he will be discharged from the security. This will vindicate the stand
of the respondent and compensate him for any hardship that may have been caused
to him by the order terminating his services, and will also put a stamp of
finality to any further litigation between the parties." The case of Smt.
J. Tiwari seems-to be closer to the case before us. There the appellant claimed
arrears of salary for six years covered by the period of suspension from 1952
till 1958. In January 1952 she filed a suit in the court of Munsif challenging
her suspension which was later withdrawn by the High Court of Allahabad for
trial by itself. The High Court decreed the suit holding that the order of
suspension was not made by a properly constituted Committee. On 24 May 1958,
her services were terminated by the management of the college with retrospective
effect from the date of suspension. On 28 August 1958, she filed a suit for a
declaration that she continued in the service and 462 for setting aside the
termination order. She claimed a decree in a sum of Rs.37,657.40 by way of
salary. The trial court upheld her contention that the termination of service
was bad and ineffective. The trial Court, however, passed a decree in her favour
in the sum of Rs. 15,250 as arrears of pay for a period of 3 years from August
1, 1955 to July 31, 1958. Both the parties filed appeals before the High Court.
Division Bench of the High Court partly allowed the appeal of the management
and dismissed the appeal of Smt. J.
The High Court took the view that though the dismissal was wrongful, she was
entitled to a decree of damages only and not to a declaration that she still
continued to be in the service of the management. The High Court upheld the
money decree passed by the trial court, but did so on the ground that the
amount awarded by the trial court by way of arrears of salary could justifiably
be granted to her by way of damages. This Court while affirming the decree of
the High Court has, however, said as follows (at p. 162):
High Court has treated the claim for three years' arrears of salary as being
payable to the appellant on account of damages.
that is not a right approach to the problem. The appellant is entitled to three
years' arrears of salary for the period of suspension ,since the order of
suspension was without jurisdiction and until May 1958 no order of termination
of her service was passed by the Society. In addition to the arrears of three
years' salary, the appellant would be entitled to three months' salary as
provided for by clause 10 of the agreement.
would like to add that even if the appellant could be held to be entitled to a
declaration that she continued to be in the service of respondent 1, this is
not a proper case in which such a declaration should be granted to her. The
appellant's claim according to her counsel would amount to over Rs.2 lakhs. The
appellant has admitted in her evidence that she did not make any attempt to
mitigate the damages by trying to obtain an alternative employment during the
last 20 years. The difficulty of obtaining employment is an argument which
cannot be permitted to a person who, on her own showing, has made no effort to
obtain any employment." Deepak Kumar Biswas case appears to be the closest
to the present case. There the appellant was a Lecturer in English in Lady
Keane 463 Girls College, Shillong. The college was governed by the statutes of
the Meghalaya University and the Education Code framed by the State Government.
The college was also receiving financial aid from the Government. His
appointment was terminated for want of approval by the Director of Public
Instruction. The trial court decreed the suit for declaration and permanent
injunction. The appellate Court set aside that decree and granted monetary
compensation of one year salary as damages although his removal was found to be
wrongful. This Court sustained the removal but enhanced the compensation to
three years' salary following the pattern adopted in the aforesaid two cases.
do we have here? In 1962 the respondent was appointed as a Chemistry lecturer
in the scale of Rs. 175-10215. His performance was found to be unsatisfactory.
In August 1964, he was placed under suspension. In January 1966, he was again
suspended. Thereafter, he brought suit after suit, appeal after appeal from the
lowest court to the Apex Court. He continued the litigation for about 25 years.
March 1976 the management had appointed Dr. Gopendra Kumar as Chemistry
Lecturer and his appointment was approved by the DIOS. On 28 October 1982 the
management passed a resolution confirming his appointment w.e.f. 27 September
1975. That was also approved by the DIOS. Dr. Gopendra Kumar was not a party to
any one of the earlier litigations nor to the present appeal.
respondent knew very well that his service contract was with the private
management. In 1964 itself learned Munsif while dismissing the first suit No.
422/1963 has held that his contract of employment could not specifically be
enforced. He was then obliged to place his services on the market to mitigate
the damages. But he did nothing of the kind. In 1968 he joined legal profession
and he is still not out of it. He has not disclosed his professional income. In
fairness he ought to have disclosed his income to the Court since it is in his
personal knowledge. Instead, he seems to have urged before the High Court that
the professional income is not relevant for consideration. The High Court while
accepting the submission went a step further and observed: "that joining
the legal fraternity can never be said to be employment and could not disentitle
the respondent to claim his arrears of salary." Legal profession may not
be considered as an employment but the income from profession or avocation if
not negligible, can not be ignored while determining damages or back wages for
must also be taken into consideration. In S.M. Saiyad v. Baroda Municipal
Corporation, Baroda,  (Supp) SCC 378 the Court gave deduction of even a
small income of Rs. 150 per month 464 earned by the worker turned advocate
while awarding back wages upon reinstatement.
cannot accept the contention for the appellants that the sum of Rs. 10,000
decreed in favour of the respondent in Civil Appeal No. 5891 of 1983 was a
final settlement of all his claims. There is no indication in the order of this
Court to that effect.
light of all these facts and circumstances and the authorities to which we have
called attention, it seems to us that it would be sufficient if the respondent
is given salary for three years on account of damages.
result, the appeals are allowed and in reversal of the judgment of the High
Court, we direct that the respondent be paid three years salary. The payment
shall be treated as a final settlement of all his claims. The payment shall be
made by the management and not by Government. In a case like this, the
Government cannot be saddled with the liability to make payment. There is no
relationship of master and servant between Government and respondent and such
relationship existed only between the management and respondent. So far as
statutory liability to pay salary to teachers is concerned, the Government has
been paying salary to Dr. Gopendra who has since been appointed as Lecturer in
the place of respondent. Therefore, the Management alone should pay the amount
ordered. The payment shall be made within four weeks.
circumstances of the case, we make no order as to costs.