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Friday, April 15, 2016

On 07.01.2003, the respondent-Managing Committee issued a notice to the appellant in accordance with Section 25F (a) of the ID Act, stating that his services were no longer required by the school and that he would be retrenched from his service on the expiry of the notice period of one month. The notice also stated that the appellant was entitled to retrenchment compensation which would be paid after the expiry of the notice period of one month.=For the reasons stated supra, we are of the view that the impugned judgment and order dated 28.07.2008 passed by the Delhi High Court is liable to be set aside and accordingly set aside, by allowing this appeal. The retrenchment of the appellant from his service is bad in law. The respondent-Managing Committee is directed to reinstate the appellant at his post. Consequently, the relief of back wages till the date of this order is awarded to the appellant, along with all consequential benefits from the date of termination of his services. The back wages shall be computed on the basis of periodical revision of wages/salary. We further make it clear that the entire amount due to the appellant must be spread over the period between the period of retrenchment and the date of this decision, which amounts to 13 years, for the reason that the appellant is entitled to the benefit under Section 89 of the Income Tax Act. The same must be complied with within six weeks from the date of receipt of the copy of this judgment.

 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1020 OF 2011


RAJ KUMAR                             ………… APPELLANT
                                     Vs.
DIRECTOR OF EDUCATION & ORS.       ………… RESPONDENTS



                               J U D G M E N T


  V. GOPALA GOWDA, J.


The present appeal arises out of  the  impugned  judgment  and  order  dated
28.07.2008 passed by the High Court of Delhi at New Delhi in  Writ  Petition
(C) No.5349 of  2008,  whereby  the  High  Court  dismissed  the  said  Writ
Petition filed by the appellant in limine and upheld the  termination  order
dated 22.08.2008 passed against the appellant by the Delhi  School  Tribunal
(hereinafter  referred  to  as  “the  Tribunal”)  on  the  ground  that  the
appellant, who was a driver, had been retrenched from his  services  by  the
respondent-Managing Committee, DAV Public School by following the  procedure
laid down under Sections 25F (a) and (b) of Chapter V-A  of  the  Industrial
Disputes Act, 1947 (hereinafter referred to as “the ID Act”).

The brief  facts  of  the  case  required  to  appreciate  the  rival  legal
contentions advanced on behalf of the parties are stated as hereunder:

     The appellant was employed as  a  driver  by  the  DAV  Public  School,
Pocket ‘C’, LIG Flats, East of Loni Road, Delhi and became permanent on  the
said post in the year 1994. His terms of service are covered under  Sections
2(h), 8(2), 10 and other provisions of the Delhi School Education Act,  1973
(hereinafter referred to as the “DSE Act”).

On 01.05.2001, the DAV College Managing Committee in  its  72nd  meeting  of
Public Schools Governing Body, passed a resolution to buy new  school  buses
with CNG facility in compliance with the  directions  of  this  Court  dated
26.03.2001 passed in the case of M.C. Mehta v. Union of  India  and  allowed
the management of the DAV Schools to raise loan from nationalized banks  for
the said purpose.

The respondent-Managing Committee in its meeting dated 24.08.2002, passed  a
resolution to retrench the services of the two junior most surplus  drivers,
namely the appellant and one Amar Nath, for the reason that the  school  had
two old mechanically unfit vehicles namely, a Matador (registration No.  DL-
IV-1481) and a Maruti Van  bearing  registration  No.DL-5C-3107  which  were
disposed of on 01.09.1995 and  13.06.1997,  respectively.  As  an  alternate
arrangement, private buses  had  to  be  hired  for  the  transportation  of
students as per instructions in the earlier resolution, but the  respondent-
Managing Committee could not purchase new buses due to  shortage  of  funds,
which resulted in the appellant being declared surplus on  account  of  non-
availability of job.

On 07.01.2003, the respondent-Managing Committee  issued  a  notice  to  the
appellant in accordance with Section 25F (a) of the ID  Act,   stating  that
his services were no longer required by the school  and  that  he  would  be
retrenched from his service on the  expiry  of  the  notice  period  of  one
month.  The  notice  also  stated  that  the  appellant  was   entitled   to
retrenchment compensation which would  be  paid  after  the  expiry  of  the
notice period of one month.

On 10.01.2003, the appellant replied to the above said  notice  through  his
counsel, in which it was stated that  the  impugned  notice  is  unjust  and
illegal, as the appellant is a permanent employee of the  school  under  the
provisions of the DSE Act. It was also stated in the notice that the  school
had failed to pay arrears amounting to Rs. 70,000/- to the appellant as  per
the recommendations of the Fifth Pay  Commission.  On  the  same  date,  the
appellant, through his counsel, wrote  a  letter  to  the  respondent  No.1-
Director of Education, Govt  of  NCT  of  Delhi  regarding  payment  of  all
arrears as per the Fifth Pay Commission to the appellant.

By way  of  letter  dated  22.01.2003,  the  respondent-Managing  Committee,
through their counsel informed  the  appellant  that  the  school  has  been
paying pay and allowances to the appellant as  per  the  recommendations  of
the Fifth Pay Commission which came to Rs.3,500/- per  month  as  basic  pay
and Rs.1,435/- as Dearness Allowances. In the same letter,  the  respondent-
Managing  Committee  also  denied  that  it  had  held  back  an  amount  of
Rs.70,000/- due to the appellant.

On 31.01.2003, the appellant filed Writ Petition (C) No.957 of  2003  before
the High Court of Delhi,  praying  that  the  notice  served  on  him  dated
07.01.2003 be quashed and to stay  the  operation  of  the  impugned  notice
until the Writ Petition was finally disposed of.

Meanwhile, vide letter dated 25.07.2003, the  respondent-Managing  Committee
informed the appellant that since the extended notice period  under  Section
25F of the ID  Act  was  also  over,  his  services  now  stood  terminated.
Further, a salary cheque for a sum of Rs.4,165/- against one month’s  notice
period from 01.07.2003 to 25.07.2003, along with a cheque bearing  No.877690
dated 22.07.2003 for a  sum  of  Rs.25,650/-  as  retrenchment  compensation
under Section 25F (b) of the ID Act were enclosed with the letter.

The High Court disposed of the Writ Petition No. 957 of 2003  filed  by  the
appellant vide judgment and order dated 25.02.2004. Placing reliance on  the
judgment of the Delhi High Court passed in Writ Petition (C) No.970 of  2003
dated 21.07.2003, filed by the other terminated driver  Amar  Nath,  in  the
case of Amar Nath v. Director of Education, Govt. of Delhi & Ors., the  High
Court held that Section 8 of the DSE Act  is  very  wide  and  any  kind  of
termination would fall within its ambit. Accordingly, the Writ Petition  was
disposed of with liberty granted to the petitioner to  seek  an  appropriate
remedy under the DSE Act.

Accordingly, the appellant filed Appeal No.09 of 2004 before  the  Presiding
officer, Delhi School Tribunal under Section 8(3) of  the  DSE  Act  against
the impugned retrenchment notice dated 07.01.2003.  The  Tribunal  vide  its
judgment and order dated  22.02.2008,  dismissed  the  said  appeal  on  the
ground that the respondent-Managing Committee  had  the  right  to  retrench
surplus drivers of the School after fulfilling all the  conditions  as  laid
down under Sections 25F (a)  &  (b)  of  the  ID  Act.  The  Tribunal  while
upholding the validity of the retrenchment order held that the appellant  is
governed by the provisions of the ID Act as well the DSE Act.  Section  2(h)
of the DSE Act defines “employee” as  a  teacher  and  also  includes  every
other employee working in a recognized school as  “employee”.  The  Tribunal
held as under:
“2(h) Hence the laws which governs  the  employment  of  the  Appellant  are
Delhi School Education Act  &  Rules,  1973  and  Industrial  Disputes  Act,
1947.Since  Delhi  School  Education  Act,  1973   has   no   provision   of
retrenchment of workmen, one  has  to  fall  back  upon  the  provisions  of
Industrial Disputes Act, 1947 to see whether the conditions of the said  Act
regarding retrenchment were fully complied with by the Management or not.”


The Tribunal further held  that  all  the  conditions  precedent  which  are
required to be satisfied for retrenchment under Section 25F of  the  ID  Act
have been fulfilled in the instant case.  The  appellant  was  given  notice
under the provisions of the ID Act dated 07.01.2003. The  intended  date  of
his  retrenchment  thus,  was  07.02.2003.  However,   the   appellant   was
retrenched only on 25.07.2003. It was held that since  the  notice  of  more
than one month had been given, the condition of Section 25F (a)  of  the  ID
Act has been duly complied with. The Tribunal  in  its  order  further  held
that the appellant had been paid the retrenchment  compensation  calculating
15 days average pay for every completed  year  of  continuous  service.  The
respondent-Managing Committee calculated his  service  for  a  period  of  9
years and concluded that the appellant is entitled to salary  for  a  period
of four and a half months, which amounts to Rs.19,740/-, after  taking  into
consideration  Rs.3,500/-  basic  pay  along  with  Rs.4,071/-  as  dearness
allowance. In total, the  appellant  was  paid  Rs.25,650/-  on  account  of
compensation. Therefore, the Tribunal held that Section 25F (b)  of  the  ID
Act had also been duly complied with. On the issue of  notice  being  served
on the appropriate government in the prescribed manner, the Tribunal  placed
reliance on the decision of this Court  in  the  case  of  Bombay  Union  of
Journalists & Ors. v. The State of Bombay & Anr.[1],  wherein  it  was  held
that this was only directory in nature, and not a  condition  precedent  for
retrenchment. This Court had held as under:
“Clause (c) is not intended to protect  the  interests  of  the  workman  as
such. It is only intended to give intimation to the  appropriate  Government
about the retrenchment, and that only helps the Government  to  keep  itself
informed about the conditions of  employment  in  the  different  industries
within its region. There does  not  appear  to  be  present  any  compelling
consideration which would justify the making of the provision prescribed  by
clause (c) a condition precedent as in  the  case  of  clauses  (a)  &  (b).
Therefore, having regard to the object which is intended to be  achieved  by
clauses (a) & (b) as distinguished from the object which clause (c)  has  in
mind, it would not be unreasonable to hold that clause (c),  unlike  clauses
(a) & (b), is not a condition precedent.”
               (emphasis laid by this Court)

Thus, the Tribunal held that both the mandatory conditions for  retrenchment
have been fulfilled in the instant case, and that Section 25F(c) of  the  ID
Act merely lays  down  a  direction  and  not  a  condition  precedent.  The
Tribunal further held:
“As far as the question of permission from Directorate of  Education  before
removing an employee is concerned, in view of the judgment  of  the  Hon’ble
Supreme Court in the matter of “TMA Pai Foundation v/s State  of  Karnataka”
and the judgment of our own Hon’ble High Court in the  matter  of  “Kathuria
Public  School  v/s  Directorate  of  Education”,  the  provision  regarding
obtaining prior approval from the Director  of  Education  has  been  struck
down and the School Management has been given a free hand to deal  with  its
employees.”

The appeal filed by  the  appellant  before  the  Tribunal  was  accordingly
dismissed.
Aggrieved of the said judgment of the Tribunal,  the  appellant  filed  Writ
Petition (C) No. 5349 of 2008 before the High  Court  of  Delhi  questioning
the correctness of the same urging various  grounds.  The  High  Court  vide
impugned judgment and order dated 28.07.2008 dismissed the  same  in  limine
as it found no infirmity in the view  taken  by  the  Tribunal.  Hence,  the
present appeal.

On the basis of the contentions advanced by the  learned  counsel  appearing
on behalf  of  the  parties,  the  following  issues  would  arise  for  our
consideration:
Whether the appellant is a workman for the purpose of ID Act?

Whether the conditions precedent  for  the  retrenchment  of  a  workman  as
prescribed under Section 25F (a), (b) and  (c)  of  the  ID  Act  have  been
fulfilled in the instant case?


Whether the provision of Section 8(2) of the DSE Act is  applicable  to  the
facts of the instant case?

What order?


Before we advert to the rival legal contentions advanced on  behalf  of  the
parties, it is important for us to consider the relevant provisions  of  the
ID Act and DSE Act in play in the instant case.
The DSE Act was enacted in the year 1973 and is:
“An Act to  provide  for  better  organisation  and  development  of  school
education in  the  Union  Territory  of  Delhi  and  for  matters  connected
therewith or incidental thereto”

Section 2(h) defines an employee:
“means a teacher and includes every other employee working in  a  recognized
school”
Section 8(2) of the DSE Act provides:
“Subject to any rule that may be made in  this  behalf,  no  employee  of  a
recognized private school shall be dismissed, removed  or  reduced  in  rank
nor shall his service  be  otherwise  terminated  excepted  with  the  prior
approval of the Director”
Section 10 of the DSE Act reads as under:
“10.(1). Salaries of employees- the scales of pay  and  allowances,  medical
facilities, pension, gratuity provident fund and other  prescribed  benefits
of the employees of a recognized private school shall not be  as  less  than
these of the employees of the corresponding status  in  school  run  by  the
appropriate authority………

(2). The managing committee of  every  aided  school,  shall  deposit  every
month, its share towards pay and allowances,  medical  facilities,  pension,
gratuity,  provident  fund  and   other   prescribed   benefits   with   the
Administrator  and  the  Administrator  shall  disburse,  or  cause  to   be
disbursed within the first week of every month, the salaries and  allowances
to the employees of the aided schools.”

The Industrial Disputes Act, 1947, is:
“An  Act  to  make  provision  for  the  investigation  and  settlement   of
industrial disputes, and for certain other purposes”

      Section 2(s) defines a Workman as:
“2(s). "workman" means any person (including an apprentice) employed in  any
industry to do  any  manual,  unskilled,  skilled,  technical,  operational,
clerical or supervisory work for  hire  or  reward,  whether  the  terms  of
employment be express or implied, and for the  purposes  of  any  proceeding
under this Act in relation to  an  industrial  dispute,  includes  any  such
person who has been dismissed, discharged or retrenched in connection  with,
or as a consequence of, 9 that dispute, or  whose  dismissal,  discharge  or
retrenchment has led to that dispute, but does not include any such person—

who is subject to the Air Force Act, 1950 (45 of 1950),  or  the  Army  Act,
1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957);
 who is employed in the police service or as an officer  or  other  employee
of a prison;
who is employed mainly in a managerial or administrative capacity;
who, being employed in a supervisory capacity,  draws  wages  exceeding  one
thousand six hundred rupees per mensem or exercises, either  by  the  nature
of the duties attached to the office or by reason of the  powers  vested  in
him, functions mainly of a managerial nature.”

Section 2(oo) lays down the concept of retrenchment as:
“2(oo). Retrenchment means the termination by the employer  of  the  service
of a workman for any reason  whatsoever,  otherwise  than  as  a  punishment
inflicted by way of disciplinary action, but does not include—

voluntary retirement of the workman;

(b) retirement of the workman on reaching the age of superannuation  if  the
contract of employment  between  the  employer  and  the  workman  concerned
contains a stipulation in that behalf;

(bb) termination of the service of the workman  as  a  result  of  the  non-
renewal of the contract of employment between the employer and  the  workman
concerned on its expiry  or  of  such  contract  being  terminated  under  a
stipulation in that behalf contained therein;”

(c) termination of the service of a workman on the ground of continued  ill-
health”

Section 25F of the ID Act provides for  the  conditions  precedent  for  the
retrenchment of a workman and reads as under:
“25F.Conditions precedent to retrenchment of workmen.- No  workman  employed
in any industry who has been in continuous service for  not  less  than  one
year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month' s  notice  in  writing  indicating
the reasons for retrenchment and the period of notice has  expired,  or  the
workman has been paid in lieu of such notice, wages for the  period  of  the
notice:
(b) the workman has been paid, at the  time  of  retrenchment,  compensation
which shall  be  equivalent  to  fifteen  days'  average  pay  2  for  every
completed year of continuous service] or any part thereof in excess  of  six
months; and
(c) notice in the prescribed manner is served on the appropriate  Government
3 or such authority as may be specified by  the  appropriate  Government  by
notification in the Official Gazette.

The spirit and scheme of the ID Act was discussed by a Seven-Judge Bench  of
this Court in the case of Bangalore Water Supply and Sewerage  Board  v.  A.
Rajappa & Ors.[2] as under:
“To sum up, the personality of the whole statute, be it  remembered,  has  a
welfare basis, it being a  beneficial  legislation  which  protects  Labour,
promotes their contentment and regulates situations of  crisis  and  tension
where production may be imperiled by untenable strikes and  blackmail  lock-
outs. The mechanism  of  the  Act  is  geared  to  conferment  of  regulated
benefits to workmen and resolution, according to a sympathetic rule of  law,
of the conflicts, actual or potential, between managements and workmen.  Its
goal is amelioration of the conditions of workers, tempered by  a  practical
sense of peaceful  co-existence,  to  the  benefit  of  both-not  a  neutral
position but restraints on laissez faire and concern for the welfare of  the
weaker lot. Empathy with the statute is necessary to understand  not  merely
its spirit, but also its sense.”
       (emphasis laid by this Court)

It is in this context that any dispute regarding retrenchment of  a  workman
under the ID Act needs to be appreciated.
Answer to Point 1:
Mr.  A.T.M.  Sampath,  the  learned  counsel  appearing  on  behalf  of  the
appellant contends that in the instant case, the appellant  is  a  permanent
employee of the school and thus, he is not a ‘workman’ for the  purposes  of
the ID Act. His services are covered instead, under Sections 2(h), 8(2)  and
10 of the DSE Act,  and  thus,  his  services  cannot  be  retrenched  under
Section 25F of the ID Act. Reliance is placed on the decision of this  Court
in the case of Miss A.  Sundarambal  v.  Govt.  of  Goa,  Daman  &  Diu  and
Ors.[3], wherein this Court has laid down the  legal  principle  that  while
educational institutions come within the ambit of ‘industry’, a  teacher  is
not ‘workman’ for the purpose of the ID Act.  The  learned  counsel  submits
that using the analogy, the driver  of  the  school  would  also  be  not  a
‘workman’ for the purpose of the ID Act, rather would come within the  ambit
of the term ‘employee’ as defined under Section 2(h) of the DSE Act.

On the other hand, Mr. S.S. Ray, the learned counsel appearing on behalf  of
the respondent- School contends  that  the  appellant  is  squarely  covered
under the  definition  of  ‘workman’  under  the  ID  Act  as  well  as  the
definition of ‘employee’ under the  DSE  Act.  The  learned  counsel  places
strong reliance on the decision of this Court in the case of  A  Sundarambal
(supra), wherein this Court held that  teachers  are  not  workmen  for  the
purpose of the ID Act,  though  educational  institutions  are  industry  in
terms of Section 2(j) of the ID Act.

We are unable to agree with the contention advanced by the  learned  counsel
appearing on behalf of the appellant. The question ‘who is  a  workman’  has
been well settled by various judgments of this Court. In the  case  of  H.R.
Adyanthaya v. Sandoz (India) Ltd[4], a Constitution Bench of this Court  has
held as under:
“..We thus have three Judge Bench decisions which have taken the  view  that
a person to be qualified to be a workman must be doing the work which  falls
in any of  the  four  categories,  viz,  manual,  clerical,  supervisory  or
technical and two two-judge Bench decisions which have by referring  to  one
or the other of the said three decisions have reiterated the  said  law.  As
against this, we have three three-judge Bench decisions which  have  without
referring to the decisions in May & Baker,  WIMCO  and  Bunnah  Shell  cases
(supra) have taken the other view which was expressly negatived, viz., if  a
person does not fall within the four exceptions to the  said  definition  he
is a workman within the meaning of the ID  Act.  These  decisions  are  also
based on the facts found  in  those  cases.  They  have,  therefore,  to  be
confined to those facts. Hence the position in law as it  obtains  today  is
that a person to be a workman under the ID Act must be employed  to  do  the
work of any of the categories, viz., manual, unskilled, skilled,  technical,
operational, clerical or supervisory. It  is  not  enough  that  he  is  not
covered by either of the four exceptions to  the  definition.  We  reiterate
the said interpretation.”
                (emphasis laid by this Court)

The  issue  whether  educational  institution  is  an  ‘industry’,  and  its
employees are ‘workmen’ for the purpose of the ID Act has been  answered  by
a Seven-judge Bench of this Court way back in the year 1978 in the  case  of
Bangalore Water Supply (supra). It was held that educational institution  is
an industry in terms of Section 2(j) of the ID Act, though not  all  of  its
employees are workmen. It was held as under:
“The premises relied on is that the bulk of the employees in the  university
is the teaching  community.  Teachers  are  not  workmen  and  cannot  raise
disputes under the Act. The subordinate staff being only  a  minor  category
of insignificant numbers, the institution must be  excluded,  going  by  the
predominant character test. It is one thing to say that  an  institution  is
not an industry. It is altogether another  thinking  to  say  that  a  large
number of its employees are not 'workmen' and cannot therefore avail of  the
benefits of the Act so the institution ceases to be an  industry.  The  test
is not the predominant number of employees entitled to  enjoy  the  benefits
of the Act. The true test is the predominant nature of the activity. In  the
case of the university or an educational  institution,  the  nature  of  the
activity is, ex hypothesis, education which is a service to  the  community.
Ergo, the university is an industry. The error has crept in, if  we  may  so
say with  great  respect,  in  mixing  up  the  numerical  strength  of  the
personnel with the nature of the activity.
Secondly  there  are  a  number  of  other  activities  of  the   University
Administration,  demonstrably  industrial  which  are   severable   although
ancillary to the main cultural enterprise. For instance,  a  university  may
have a large printing press as a separate  but  considerable  establishment.
It may have a large fleet of transport buses with an army of running  staff.
It may have a tremendous administrative strength of  officers  and  clerical
cadres. It may have karamcharis of  various  hues.  As  the  Corporation  of
Nagpur has effectively ruled,  these  operations,  viewed  in  severalty  or
collectively, may be treated as industry. It would be strange, indeed, if  a
university has 50 transport buses, hiring drivers, conductors, cleaners  and
workshop technicians. How are they to be denied the  benefits  of  the  Act,
especially when their work  is  separable  from  academic  teaching,  merely
because the buses are owned by the  same  corporate  personality?  We  find,
with all defence, little force in  this  process  of  nullification  of  the
industrial character of the University's multi-form operations.”
                (emphasis laid by this Court)

A perusal of the abovementioned two judgments clearly shows  that  a  driver
employed by a school, being a skilled person, is a workman for  the  purpose
of the  ID  Act.  Point  No.1  is  answered  accordingly  in  favor  of  the
respondents. The provisions of ID Act are applicable to  the  facts  of  the
present case.
Answer to Point No.2
Mr.  A.T.M.  Sampath,  the  learned  counsel  appearing  on  behalf  of  the
appellant contends that the retrenchment of the services of  the  appellant,
who is a permanent employee with an unblemished record of  service,  on  the
ground of non  availability  of  CNG  vehicles  is  illegal,  arbitrary  and
unjust. The appellant had been working at  the  respondent-School  for  more
than seven years and had even received a  letter  of  appreciation  for  his
services from the principal of the school. The learned counsel submits  that
the appellant could have been given alternate employment at any one  of  the
60 schools under the respondent-Managing Committee. It is further  submitted
that even the defence of loss is not available to the respondents, as  after
the retrenchment of the appellant,  the  respondent-  School  has  appointed
another, less experienced person as driver.  The  learned  counsel  contends
that this is in clear  violation  of  Section  25H  of  the  ID  Act,  which
provides that when an opportunity for reemployment arises,  preference  must
be given to the willing  retrenched  workmen  over  any  other  persons  for
filling up that vacancy.

The  learned  counsel  further  contends  that  the   conditions   precedent
prescribed under Section 25F of the ID  Act  have  not  been  complied  with
before retrenching the appellant. It is submitted that the  notice  required
to be sent  to  the  appropriate  government  in  the  prescribed  form,  as
provided for under Section 25F (c) of the ID Act has not been sent.

On the other hand, Mr. S.S. Ray, the learned counsel appearing on behalf  of
the respondent-School contends that the reason for the retrenchment  of  the
appellant has been explained in detail in the notice dated  07.01.2003.  The
respondent school had only one car left, while there were three drivers,  as
the two other cars had been rendered unfit for use.  That  being  the  case,
the  respondent  school  required  the  services  of  only  one  driver  and
accordingly, the two junior most drivers were retrenched from  service,  the
present appellant being the junior most driver. It  is  submitted  that  all
the mandatory conditions as laid down under Section 25F  of the ID Act  were
complied with, including the payment of  retrenchment  compensation  to  the
appellant.

We are unable to agree with the reasoning adopted by the  Tribunal  as  well
as the High Court in the instant case. Admittedly, the notice under  Section
25F(c) of the ID Act has not been served upon the  Delhi  State  Government.
In support of  the  justification  for  not  sending  notice  to  the  State
Government reliance has been placed upon the decision of this Court  in  the
case of Bombay Journalists (supra). This decision was rendered in  the  year
1963 and it was held in the said case that the  provisions  of  Section  25F
(c) of the ID Act is directory and not mandatory in nature.  What  has  been
ignored by the Tribunal as well as the High Court is that subsequently,  the
Parliament enacted the Industrial Disputes (Amendment)  Act,  1964.  Section
25F (c) of the ID Act was amended to include the words:
 “or such authority as may be specified by  the  appropriate  Government  by
notification in the Official Gazette”

    The statement of objects and reasons provides:
“Opportunity  has  been  availed  of  to  propose  a  few  other   essential
amendments which are mainly of a formal or clarificatory nature”

Nothing was done on part of the legislature to  indicate  that  it  intended
Section 25F(c) of the ID Act to be a directory  provision,  when  the  other
two sub-sections of the same section are mandatory in nature. The  amendment
was enacted which seeks to make it administratively easier for notice to  be
served on any other authority as specified.

Further, even the decision in the case of Bombay  Journalists  (supra)  does
not come to the rescue of the respondents. On the  issue  of  interpretation
of Section 25F(c) of the ID Act, it was held as under:
“The hardship resulting from retrenchment has been  partially  redressed  by
these two clauses, and so, there is  every  justification  for  making  them
conditions precedent. The same cannot be said about the  requirement  as  to
clause (c). Clause (c) is not intended  to  protect  the  interests  of  the
workman as such. It is only intended to give intimation to  the  appropriate
Government about the retrenchment, and that only  helps  the  Government  to
keep itself informed about the conditions of  employment  in  the  different
industries within its region. There  does  not  appear  to  be  present  any
compelling consideration which would justify the  making  of  the  provision
prescribed by clause (c) a condition precedent as in  the  case  of  clauses
(a) & (b). Therefore, having regard to the object which is  intended  to  be
achieved by clauses (a) & (b) as distinguished from the object which  clause
(c) has in mind, it would not be  unreasonable  to  hold  that  clause  (c),
unlike clauses (a) & (b), is not a condition precedent.”
                  (emphasis laid by this Court)
Thus, this Court read the ID Act and the relevant Rules thereunder  together
and arrived at the  conclusion  that  Section  25F(c)  is  not  a  condition
precedent for retrenchment. By no stretch of imagination can  this  decision
be said to have held that there is no need for  industries  to  comply  with
this condition at all. At the most, it can be held that Section 25F(c) is  a
condition subsequent, but is still a  mandatory  condition  required  to  be
fulfilled by the employers before the order of retrenchment of  the  workman
is passed. This Court in the case of Mackinon Mackenzie &  Company  Ltd.  v.
Mackinnon Employees Union[5] held as under:
“Further, with regard to the  provision  of  Section  25F  Clause  (c),  the
Appellant-Company has not been able to produce cogent evidence  that  notice
in the prescribed manner has been served  by  it  to  the  State  Government
prior to the retrenchment of the concerned workmen. Therefore,  we  have  to
hold that  the  Appellant-Company  has  not  complied  with  the  conditions
precedent to retrenchment as per Section 25F Clauses  (a)  and  (c)  of  the
I.D. Act which are mandatory in law.”


In the  instant  case,  the  relevant  rules  are  the  Industrial  Disputes
(Central) Rules, 1957. Rule 76 of the said Rules reads as under:
“76. Notice of retrenchment.-  If  any  employer  desires  to  retrench  any
workman employed in his industrial establishment who has been in  continuous
service for not less than one year under him  (hereinafter  referred  to  as
'workman' in this rule and in rules 77 and 78),  he  shall  give  notice  of
such retrenchment as in Form P  to  the  Central  Government,  the  Regional
Labour Commissioner (Central) and Assistant  Labour  Commissioner  (Central)
and the Employment Exchange concerned and such notice  shall  be  served  on
that Government, the Regional Labour Commissioner (Central),  the  Assistant
Labour Commissioner (Central), and  the  Employment  Exchange  concerned  by
registered post in the following manner :-
      (a)   where notice is given to the  workman,  notice  of  retrenchment
shall be sent within three days from the date on which notice  is  given  to
the workman;
               (emphasis laid by this Court)

Rule 76(a)  clearly  mandates  that  the  notice  has  to  be  sent  to  the
appropriate authorities within three days from the date on which  notice  is
served on the workman. In the instant case, the notice of  retrenchment  was
served on the appellant on 07.01.2003. No  evidence  has  been  produced  on
behalf of the respondents to show that notice of the retrenchment  has  been
sent to the appropriate authority even till date.
That being the case, it is clear that in the  instant  case,  the  mandatory
conditions of Section 25F of the ID Act to retrench a workman have not  been
complied with. The notice of retrenchment dated 07.01.2003 and the order  of
retrenchment dated 25.07.2003 are liable to be  set  aside  and  accordingly
set aside.

Answer to Point No.3
The learned counsel for the appellant contends  that  the  respondent-School
is a recognized private school and the appellant is an ‘employee’  in  terms
of Section 2(h) of the DSE Act. Chapter IV of the DSE Act provides  for  the
terms and conditions of services of an  employee  of  a  recognized  private
school. Section 8(2) of the DSE Act  contemplates  that  no  employee  of  a
recognized private school shall be dismissed, removed  or  reduced  in  rank
nor shall their services be  otherwise  terminated  except  with  the  prior
approval of the Director of Education,  Delhi.  In  the  instant  case,  the
respondent–Managing  Committee,  before  terminating  the  services  of  the
appellant did not comply with the said mandatory provision of  Section  8(2)
of the DSE Act. The learned counsel for the appellant further contends  that
the notice regarding termination of service was served on the  appellant  on
07.01.2003, and as on that  date,  the  aforesaid  statutory  provision  was
valid and binding.

The learned counsel for the appellant submits that Section 8(2) of  the  DSE
Act is a substantive right  provided  for  safeguarding  the  conditions  of
services of an employee.  The  termination  of  services  of  the  appellant
without obtaining prior permission of the Director, renders  the  action  of
the respondent-School as  void.  The  learned  counsel  contends  that  when
statutory provisions provide a procedure  to  do  an  act  in  a  particular
manner, it should be done in that very manner or not  at  all.  Reliance  is
placed on the decision of this Court in the case of Babu Verghese & Ors.  v.
Bar Council Of Kerala & Ors.[6]:
“31. It is the basic principle of law long settled that  if  the  manner  of
doing a particular act is prescribed under any  Statute,  the  act  must  be
done in that manner or not at all. The origin of this rule is  traceable  to
the decision in Taylor v. Taylor which was followed by Lord Roche  in  Nazir
Ahmad v. King Emperor who stated as under :

“Where a power is given to do a certain thing in a certain  way,  the  thing
must be done in that way or not at all.”

32. This rule has since been approved by this  Court  in  Rao  Shiv  Bahadur
Singh and Anr. v. State of Vindhya Pradesh and again in Deep Chand v.  State
of Rajasthan These cases were considered by  a  Three-Judge  Bench  of  this
Court in State of Uttar Pradesh v. Singhara Singh  and  Ors.  and  the  rule
laid down in Nazir Ahmad's case (supra) was  again  upheld.  This  rule  has
since been applied to the exercise of jurisdiction by courts  and  has  also
been recognized as a salutary principle of administrative law.”
                  (emphasis laid by this Court)
On  the  other  hand,  the  learned  counsel  appearing  on  behalf  of  the
respondent-School contends that there was no requirement on the part of  the
respondent-Managing Committee to comply with Section 8(2) of  the  DSE  Act.
Reliance is placed on the decision of the Delhi High Court in  the  case  of
Kathuria Public School v. Director of Education & Anr.[7],  wherein  Section
8(2) of the DSE was struck down. It was held as under:
“21. If the aforesaid observations of the Supreme Court in  TMA  Pai’s  case
(supra) are taken to its logical  conclusion,  it  would  imply  that  there
should be no such requirement of prior permissions  or  subsequent  approval
in matter of discipline of the staff. Thus, whether it is for suspension  or
disciplinary action, the educational institutions would have  a  free  hand.
The safeguard provided is for a judicial Tribunal to be set  up  to  examine
the cases.”


A Constitution Bench of  this  Court  had  held  in  the  case  of  TMA  PAI
Foundation v. State of Karnataka[8] as under:
“61...In the case of unaided private schools, maximum  autonomy  has  to  be
with the management with regard to administration, including  the  right  of
appointment, disciplinary powers, admission of students and the fees  to  be
charged.
“64. An educational institution is  established  only  for  the  purpose  of
imparting  education  to  the  students.  In  such  an  institution,  it  is
necessary for all  to  maintain  discipline  and  abide  by  the  rules  and
regulations that have been lawfully framed. The teachers  are  like  foster-
parents who are required to look after, cultivate and guide the students  in
their pursuit of education. The teachers and the institution exist  for  the
students and not vice versa. Once this principle is kept in  mind,  it  must
follow that it becomes imperative for the teaching and  other  staff  of  an
educational institution to  perform  their  duties  properly,  and  for  the
benefit of the students. Where allegations of misconduct  are  made,  it  is
imperative that a disciplinary enquiry is conducted, and that a decision  is
taken. In the case of a private institution, the  relationship  between  the
management and the employees is contractual in nature.  A  teacher,  if  the
contract  so  provides,  can   be   proceeded   against,   and   appropriate
disciplinary action can be  taken  if  the  misconduct  of  the  teacher  is
proved. Considering the nature of the duties and keeping  the  principle  of
natural justice in mind for the  purposes  of  establishing  misconduct  and
taking action thereon, it is imperative that  a  fair  domestic  inquiry  is
conducted. It is only on  the  basis  of  the  result  of  the  disciplinary
inquiry that the management will been titled to take appropriate action.  We
see  no  reason  why  the  management  of  a  private  unaided   educational
institution  should  seek  the  consent  or  approval  of  any  governmental
authority before taking any such action. In  the  ordinary  relationship  of
master and servant, governed by the  terms  of  a  contract  of  employment,
anyone who is guilty of breach of the terms can  be  proceeded  against  and
appropriate relief can  be  sought.  Normally,  the  aggrieved  party  would
approach a Court of law  and  seek  redress.  In  the  case  of  educational
institutions, however, we are of the opinion that requiring a teacher  or  a
member of the staff to go to a  civil  Court  for  the  purpose  of  seeking
redress is not in the interest of general education.  Disputes  between  the
management and  the  staff  of  educational  institutions  must  be  decided
speedily,  and  without  the  excessive  incurring  of  costs.   It   would,
therefore, be appropriate that an educational tribunal be  set  up  in  each
district in a state -- the object being that the teacher should  not  suffer
through the substantial costs that arise because  of  the  location  of  the
tribunal;  if  the  tribunals  are  limited  in  number,   they   can   hold
circuit/camp sittings indifferent districts to achieve this objective.  Till
a specialized tribunal is set up, the right of filing the appeal  would  lie
before the District judge or Additional District Judge as  notified  by  the
Government. It will not be  necessary  for  the  institution  to  get  prior
permission or ex post facto  approval  of  a  governmental  authority  while
taking disciplinary action against a teacher  or  any  other  employee.  The
state government shall determine, in consultation with the High  Court,  the
judicial forum in which an aggrieved teacher can file an appeal against  the
decision of the management concerning disciplinary action or termination  of
service.”
                (emphasis laid by this Court)

The learned counsel appearing on behalf  of  the  respondent-School  submits
that not obtaining prior approval for the termination  of  the  services  of
the appellant is thus, justified.
We are unable to agree with the contention advanced by the  learned  counsel
appearing on behalf of the respondent-School. Section 8(2) of  the  DSE  Act
is a procedural safeguard in favor of an employee to ensure  that  an  order
of termination or dismissal is not passed without the prior approval of  the
Director  of  Education.  This  is  to  avoid  arbitrary   or   unreasonable
termination or dismissal of an employee of a recognized private school.

The State Legislature is empowered to enact  such  statutory  provisions  in
relation to educational institutions, from Entry XI  of  List  II  of  VIIth
Schedule of the Constitution of India, which reads as:
      "education including Universities"

A number of legislations across the country have  been  enacted  which  deal
with the regulation of educational institutions,  which  contain  provisions
similar to the one provided for under Section 8(2) of the DSE Act. One  such
provision came for consideration before a Constitution Bench of  this  Court
in the case of Katra  Educational  Society  v.  State  Of  Uttar  Pradesh  &
Ors.[9] The  impugned  provisions  therein  were  certain  Sections  of  the
amended Intermediate Education Act (U.P. Act 2 of  1921).  Section  16-G  of
the Intermediate Education (Amendment) Act, 1958 provided that Committee  of
Management  could  not  remove  or  dismiss  from  service  any   Principal,
Headmaster or teacher of a college  or  school  without  prior  approval  in
writing of the Inspector. The Amendment Act also contained other  provisions
providing for  governmental  control  over  certain  other  aspects  of  the
educational institutions. Adjudicating upon  the  competence  of  the  state
legislature to enact the amending act, this Court held as under:
“8. Power of the State Legislature to legislate under  the  head  "education
including Universities" in Entry 11 of List II of  the  7th  Schedule  would
prima facie include the power to impose restrictions on  the  management  of
educational institutions in matters relating  to  education.  The  pith  and
substance of the impugned legislation  being  in  regard  to  the  field  of
education within the competence  of  the  State  Legislature,  authority  to
legislate  in  respect  of  the  maintenance  of  control  over  educational
institutions imparting higher secondary education and for  that  purpose  to
make provisions for proper administration of  the  educational  institutions
was not denied. But it was said that the impugned Act is inoperative to  the
extent to which it seeks to  impose  controls  upon  the  management  of  an
educational institution registered under the Societies Registration Act  and
managed through trustees, and thereby  directly  trenches  upon  legislative
power conferred by Entry 44 of List I and Entries 10 & 18 of List III.  This
argument has no substance. This Court has in Board of Trustees v.  State  of
Delhi held that legislation which deprives the  Board  of  Management  of  a
Society registered under the Societies Registration  Act  of  the  power  of
management and creates a new Board does not fall within Entry 44 of List  I,
but falls under  Entry  32  of  List  II,  for  by  registration  under  the
Societies Registration Act the Society does not acquire a corporate  status.
It cannot also be said that the pith and substance of  the  Act  relates  to
charities or charitable institutions, or to trusts or trustees. If the  true
nature and character of the Act falls within the express  legislative  power
conferred by Entry 11 of List II, merely because  it  incidentally  trenches
upon or affects a charitable institution, or the powers of trustees  of  the
institution,  it  will  not  on  that  account  be  beyond  the  legislative
authority of the State. The impact  of  the  Act  upon  the  rights  of  the
trustees  or  the  management  of  a  charitable   institution   is   purely
incidental, the true object of the legislation being to provide for  control
over educational institutions. The amending Act  was  therefore  within  the
competence of the State  Legislature  and  the  fact  that  it  incidentally
affected the powers  of  the  trustees  or  the  management  in  respect  of
educational institutions which may be  regarded  as  charitable,  could  not
distract from the validity of the exercise of that power.

10... If the management fails to comply with  the  directions  made  by  the
Director,  that  Officer  may   after   considering   the   explanation   or
representation, if any, given or made by the management, refer the  case  to
the  Board  for  withdrawal  of  recognition  or  recommend  to  the   State
Government to proceed against the  institution  under  sub-s.  (4)  and  the
powers which the State Government may exercise after  being  satisfied  that
the affairs of the institution are being mismanaged or that  the  management
has wilfully or persistently  failed  in  the  performance  of  its  duties,
include the power to appoint an Authorised Controller to manage the  affairs
of the institution for such period as may be specified  by  the  Government.
The provision is disciplinary and enacted for securing  the  best  interests
of the students. The State in a democratic set-up is vitally  interested  in
securing a healthy system of imparting education for its  coming  generation
of citizens, and if the management is recalcitrant and  declines  to  afford
facilities for enforcement of the provisions enacted  in  the  interests  of
the students, a provision authorising the State  Government  to  enter  upon
the management through its  Authorized  Controller  cannot  be  regarded  as
unreasonable.”
                       (emphasis laid by this Court)
From a perusal of the above judgment of the Constitution Bench,  it  becomes
clear that the state legislature is empowered in  law  to  enact  provisions
similar to Section 8(2) of the DSE Act.
At this stage, it would also be useful to refer to the statement of  objects
and reasons of the DSE Act, 1973. It reads as under:
“In recent years the unsatisfactory  working  and  management  of  privately
managed educational institutions in the Union territory of  Delhi  has  been
subjected to a good deal of adverse criticism. In the absence of  any  legal
power, it has  not  been  possible  for  the  Government  to  improve  their
working.  An  urgent  need  is,  therefore,  felt   for   taking   effective
legislative measures providing for better organization  and  development  of
educational institutions in the  Union  territory  of  Delhi,  for  ensuring
security of service of teachers, regulating  the  terms  and  conditions  of
their employment………The Bill seeks to achieve these objectives.”

A perusal of the Statement of objects and  reasons  of  the  DSE  Act  would
clearly show that the intent of the legislature while enacting the same  was
to provide security of  tenure  to  the  employees  of  the  school  and  to
regulate the terms and conditions of their employment.
    In the case  of  The  Principal  &  Ors.  v.  The  Presiding  Officer  &
Ors.[10], a Division Bench of this Court held as under:
“Sub-section (2) of Section 8 of the Act ordains that subject  to  any  rule
that may be made in this behalf, no employee of a recognised private  school
shall be dismissed, removed or reduced in rank  nor  shall  his  service  be
otherwise terminated except with the  prior  approval  of  the  Director  of
Education. From this, it clearly follows that  the  prior  approval  of  the
Director of Education is required only if the service of an  employee  of  a
recognised private school is to be terminated.”

The Division Bench of the Delhi High Court, thus,  erred  in  striking  down
Section 8(2) of the DSE Act in the case of Kathuria  Public  School  (supra)
by placing reliance on the decision of this Court in the  case  of  TMA  Pai
(supra), as the subject matter in controversy therein was not  the  security
of tenure of the employees of a school, rather, the question was  the  right
of educational institutions to function unfettered.  While  the  functioning
of both aided  and  unaided  educational  institutions  must  be  free  from
unnecessary governmental interference, the same needs to be reconciled  with
the conditions of employment of the  employees  of  these  institutions  and
provision of adequate precautions  to  safeguard  their  interests.  Section
8(2) of the DSE Act is one such precautionary safeguard which  needs  to  be
followed to ensure that employees of educational institutions do not  suffer
unfair treatment at the hands of the management. The Division Bench  of  the
Delhi High Court, while striking down Section 8(2) of the  DSE  Act  in  the
case of Kathuria Public School (supra) has not  correctly  applied  the  law
laid down in the case  of  Katra  Educational  Society  (supra),  wherein  a
Constitution Bench of this Court, with reference  to  provision  similar  to
Section 8(2) of the DSE Act and keeping in view the object of regulation  of
an aided or unaided recognised school, has held that the regulation  of  the
service conditions  of  the  employees  of  private  recognized  schools  is
required  to  be  controlled  by  educational  authorities  and  the   state
legislature is empowered to legislate such provision in  the  DSE  Act.  The
Division Bench wrongly relied upon that part of the judgment in the case  of
Katra  Education  Society  (supra)  which  dealt  with  Article  14  of  the
Constitution and aided and unaided educational institutions,  which  had  no
bearing on the fact situation therein. Further,  the  reliance  placed  upon
the decision of this Court in  the  case  of  Frank  Anthony  Public  School
Employees Association v. Union Of India & Ors.[11] is also misplaced as  the
institution under consideration  in  that  case  was  a  religious  minority
institution. The reliance placed by the learned counsel appearing on  behalf
of the respondents on the case of TMA Pai (supra) is also misplaced  as  the
same has no bearing on the facts  of  the  instant  case,  for  the  reasons
discussed supra. The reliance placed upon the decision  of  the  Delhi  High
Court in the case of Kathuria Public School (supra)  is  also  misplaced  as
the same has been passed  without  appreciating  the  true  purport  of  the
Constitution Bench decision in the case of Katra Education Society  (supra).
Therefore, the decision in the  case  of  Kathuria  Public  School  (supra),
striking down Section 8(2) of the DSE Act, is bad in law.

Furthermore, the decision in the case  of  Kathuria  Public  School  (supra)
does  not  come  to  the  aid  of  the  respondents  for  one  more  reason.
Undisputedly, the notice of retrenchment was  served  on  the  appellant  on
07.01.2003 and he was retrenched from service on  25.07.2003.  The  decision
in the case of Kathuria Public School (supra), striking  down  Section  8(2)
of the DSE Act  was  rendered  almost  exactly  two  years  later,  i.e.  on
22.07.2005. Surely,  the  respondents  could  not  have  foreseen  that  the
requirement of prior approval of the order  of  termination  passed  against
the appellant from Director would be struck down later and hence decided  to
not comply with it. Section 8(2) of the  DSE  Act  was  very  much  a  valid
provision of the  statute  as  on  the  date  of  the  retrenchment  of  the
appellant, and there is absolutely no reason why it  should  not  have  been
complied with. The rights and liabilities of the parties to  the  suit  must
be considered in accordance with the law as on the date of  the  institution
of the suit. This is a fairly well settled principle of law.   In  the  case
of Dayawati v. Inderjit[12], a three judge  bench  of  this  Court  held  as
under:
“Now as a general proposition, it may be admitted that  ordinarily  a  court
of appeal cannot take into account a new law, brought into  existence  after
the judgment appealed from has been tendered,  because  the  rights  of  the
litigants in an appeal are determined under the law in force at the date  of
the suit.”

   More recently, in the case of Carona  Ltd  v.  Parvathy  Swaminathan  and
Sons[13], this Court held as under:
“……The basic rule is that the rights of the parties should be determined  on
the basis of the date of institution of the suit.  Thus,  if  the  plaintiff
has no cause of action on the date of the filing of  the  suit,  ordinarily,
he will not be allowed to take advantage of  the  cause  of  action  arising
subsequent to the filing of the suit. Conversely, no  relief  will  normally
be denied to the plaintiff by reason of any subsequent event if at the  date
of the institution of the suit, he has a substantive  right  to  claim  such
relief.”

The respondent-Managing Committee in the instant case, did not obtain  prior
approval of the order of termination passed against the appellant  from  the
Director of Education, Govt. of NCT of Delhi as required under Section  8(2)
of the DSE Act. The order of termination passed  against  the  appellant  is
thus, bad in law.

    Answer to Point no. 4
The termination of the appellant is bad in law for non-compliance  with  the
mandatory provisions of Section 25F of the ID Act and also Section  8(2)  of
the DSE Act. Further, the respondent-School has not  produced  any  evidence
on record to show that the retrenchment of the appellant  was  necessary  as
he had become ‘surplus’. The termination of the  appellant  was  ordered  in
the year 2003 and he is unemployed till  date.  The  respondents  have  been
unable to produce any evidence  to  show  that  he  was  gainfully  employed
during that period and therefore he is entitled  to  back  wages  and  other
consequential benefits in view of the law laid down by  this  Court  in  the
case  of  Deepali  Gundu  Surwase  v.  Kranti  Junior  Adhyapak  Mahavidyala
(D.ED.)& Ors.[14] wherein it was held as under:
“22. The very idea of restoring an employee to the position  which  he  held
before dismissal or removal or  termination  of  service  implies  that  the
employee will be put in the same position in which he would  have  been  but
for the illegal action taken by the  employer.  The  injury  suffered  by  a
person, who is dismissed or removed or is otherwise terminated from  service
cannot easily be measured in terms of money. With the passing  of  an  order
which has the effect of severing the  employer  employee  relationship,  the
latter's source of income gets dried up. Not only  the  concerned  employee,
but his entire family suffers grave adversities. They are  deprived  of  the
source of sustenance. The children are deprived of nutritious food  and  all
opportunities of education and advancement in life.  At  times,  the  family
has  to  borrow  from  the  relatives  and  other  acquaintance   to   avoid
starvation. These sufferings continue till the competent adjudicatory  forum
decides  on  the  legality  of  the  action  taken  by  the  employer.   The
reinstatement of such an employee, which is preceded by  a  finding  of  the
competent judicial/quasi judicial body or Court that  the  action  taken  by
the employer is  ultra  vires  the  relevant  statutory  provisions  or  the
principles of natural justice, entitles the  employee  to  claim  full  back
wages. If the employer wants to deny back wages to the employee  or  contest
his entitlement to get consequential benefits, then it  is  for  him/her  to
specifically  plead  and  prove  that  during  the  intervening  period  the
employee was gainfully employed and was getting the same emoluments.  Denial
of back wages to an employee, who has suffered due to an illegal act of  the
employer would amount to indirectly punishing  the  concerned  employee  and
rewarding the employer by relieving him of the obligation to pay back  wages
including the emoluments.”


For the reasons stated supra, we are of the view that the impugned  judgment
and order dated 28.07.2008 passed by the Delhi High Court is  liable  to  be
set  aside  and  accordingly  set  aside,  by  allowing  this  appeal.   The
retrenchment  of  the  appellant  from  his  service  is  bad  in  law.  The
respondent-Managing Committee is directed to reinstate the appellant at  his
post. Consequently, the relief of back wages till the date of this order  is
awarded to the appellant, along with all  consequential  benefits  from  the
date of termination of his services. The back wages  shall  be  computed  on
the basis of periodical revision of wages/salary. We further make  it  clear
that the entire amount due to the appellant must be spread over  the  period
between the period of retrenchment and the  date  of  this  decision,  which
amounts to 13 years, for the reason that the appellant is  entitled  to  the
benefit under Section 89 of the Income Tax Act. The same  must  be  complied
with within six weeks  from  the  date  of  receipt  of  the  copy  of  this
judgment.


                             …………………………………………………………J.
                             [V. GOPALA GOWDA]



                    …………………………………………………………J.
                    [AMITAVA ROY]

New Delhi,
April 13, 2016
-----------------------
[1]   [2] AIR 1964 SC 1671
[3]   [4] (1978) 2 SCC 213
[5]   [6] (1988) 4 SCC 42
[7]   [8] (1997) 5 SCC 737
[9]   [10](2015) 4 SCC 544
[11]  [12](1999) 3 SCC 422
[13]  [14] 113(2004) DLT 703 (DB)
[15]  [16](2002)8 SCC 481
[17]  [18]  AIR 1966  SC 1307
[19]  [20] (1978) 1 SCC 498
[21]  [22](1986) 4 SCC 707
[23]  [24] AIR 1966 SC 1423
[25]  [26] (2007) 8 SCC 559
[27]  [28] (2013) 10 SCC 324

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