1
M. VENKA TARAMANA HEBBAR (D) BY L.RS. A
v.
M. RAJ AGO PAL HEBBAR AND ORS
APRIL 5, 2007
B
[S.B. SINHA AND MARKANDEY KA TJU, JJ.]
Partition-Joint family property-Appel/ant and Respondents co-owners
entered into a family settlement-Appellant was to pay a stipulated sum in
consideration of which Respondents were to relinquish their share in the C
property-Amount not paid by Appellant-Suit for partition subsequently
filed by Respondents-Held: ls liable to be decreed as the family settlement
was not given effect.
Code of Civil Procedure 1908-0rder VIII, rr. 3 & 5-Partition suitAverments made by plaintiff-Not denied by defendant in written statementHeld: Averments made by plaintiff would be deemed to be admitted-Fact
admitted need not be proved-Evidence Act, 1872-s.58.
'D
Appellants and Respondents were co-owners of joint family property. They
entered into a family settlement in terms of which Appellant had to pay a
stipulated sum in consideration of which the Respondents were to relinquish E
their share in the joint property. Appellant did not make payment of the
stipulated amount.
The question which arose for consideration in the present appeal is
whether the suit for partition subsequently filed by the Respondents was liable . p
to be decreed as the family settlement was not given effect.
Dismissing the appeal, the Court
HELD: 1.1. The execution of the deed of family settlement is not in
question. It is furthermore not in dispute that all the co-shareholders are not G
parties thereto. Any co-owner can cause a severance in the status of joint
family by expressing his unequivocal intention to separate. Such intention
can be expressed even by filing a suit for partition. But, despite such
separation in the joint status, parties may continue to possess the lands jointly
941
942 SUPREME COURT REPORTS {2007] 4 S.C.R.
A unless a partition of the joint family property takes place by metes and bounds. . . . . ~ .. .
(Para 9) f 946-EJ
1.2. For the purpose of this case, this Court will proceed on the
assumption that the said deed of family settlement was not required to be
compulsorily registered, in terms of Section 17 of the Registration Act as by
B reason thereof; the relinquishment of the property was to make effect in future.
But there cannot be any doubt whatsoever that before the Court rejects a claim
of partition of joint family property, at the instance of all the co-owners, it
must be established that there had been a partition by metes and bounds. By
reason of the family settlement, a complete partition of the joint family
C property by metes and bounds purported to have taken place. One of the cosharer, however, did not join in the said purported family settlement.
(Para 10)(946-F-G]
1.3. The contract between the parties, moreover was a contingent
coQtract It was to have its effect only on payment of the said sum ofRs.15,000/
D - by the plaintiff and other respondents by the defendant Nos. I to 3. No such
payment had been made. Even there had been no denial of the assertions made
by the appellant in their written statement in that behalf. The said averments
would, therefore, be deemed to be admitted. (Para 111 (946-H; 947-AI
1.4. If a plea which was relevant for the purpose of maintaining a suit
E had not been Si>t:Cifically traversed, the Court was entitl~ to draw an.inference ·
that the ~ame had been ad~itted. A fact-admitted in terms of-Section 58 ofthe .
Evidence Act need not be proved. (Para 12) [947-G)
2. Even otherwise, the Court had framed an issue and arrived at a positive
F finding that the appellant did not pay the said sum of~ 15;~0/- in favour of
plaintiff Nos. 1 to 3. The High Court has also affirmed the said finding. The
High Court, therefore, cannot be said to have committed any error' whatsoever
in arriving at the finding that by reason of the said purported de_ed of family
settlement, the co-owners had not partitioned thejoint family property by
metes and bounds. The plaintiffs/respondents were thus, yet to relinquish their
G rights in the joint family properties by receiving the said amount of Rs.
15,000/-. Deed of family settlement had not been given its full effect to. The
High Court was right in holding that even on that count, the plai,ntiff's suit
should ·have been decreed. (Paras 13, 14 and lSJ.(947-ff; 948.-A-C)
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 706 I of 2000.
H
(
M. VENKATARAMANA HEBBAR (D) BY L.RS. v. M. RAJAGOPAL HEBBAR [S.B. SINHA, l.) 943
From the Final Judgment and Order dated 11.03.1999 of the High Court A
of Kamataka at Bangalore in R.F ,A. No. 513 of 1992.
S.N. Bhat, N.S. Panwar and D.P. Chaturvedi for the Appellants.
Sunita Harish, Lalit Mohini Bhat, Naveen R. Nath, K.K. Mani and Shiv
Kumar Suri for the Respondent. B
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Defendant No. 1 in the suit is the appellant herein.
The parties hereto were admittedly co-owners of the suit property. The
relationship between the parties shall appear from the following genealogical C
table:-
M. VenkatramAnd Hebbar
(D-1)
I
I
I
I
M. Ramakrishna Hebbar
= Smt. Sundari Amma (D-9)
M. Rajgopala M. Mohana
Hebbar Hebbar
(P-1) (D-5)
I I
I I
11
I
I
I
I
I
Srirarna Srikrishna . Srivittala
(P-2) (P-3) (P-4)
I
M. Gopal
Krishna
Heb bar
(D-2)
M. Harisha
Hebbar
(D-3)
Prasanna
(D-7)
M. Janardhana
•
M. Anantha
Heb bar
(D-6)
I
I
Prashantha I
(D-8)
2. A suit for partition was filed by the plaintiff'> claiming one-fourth
share in the suit property. It is not in dispute that on or about 30.3.1973, a
purported family settlement was arrived at by the parties. One of the
defendants, however, was not a signatory thereto. In the said purported
family settlement, it was stated:-
D
E
F
G
H
A
B
c
D
E
F
G
H
944 SUPREME COURT REPORTS -, [2007) 4 S.C.R.
"We each of us are entitled to l/4 share in the family property. As that
property is a small areca garden and•as there are no sites near by to
construct a separate houses, that property cannot be divided. Hence
as owelty No. I of us is liable to pay to No. 2 and 4 of us Rs. 15,000/
- each. That amount js to be paid in 15 yearl"y instalments of Rs. l 000/
- each. On payment of last instalment 2 and 4 of us release their rights
in favour of No. I of us at his costs. We No. l, 2 and 4 of us have
agreed for this. The Ist instalment is to begi,n with the ~nd of March
1973 and end with the period of 15 years at the end of March 1987.
The marriage of Nos. 2 and 4 of us is to be performed by No. 1 of
us in the family House: If the instalments cannot be paid due to the
marriage in that year 112 the amount is to be paid in that year and the
balance is to be paid in the subsequent year. Accordingly if the entire
amount is not paid as stipulated the same is to be paid by the end
of March 1990 by number I of us and get a release deed executed from
No. 2 and 4 of us at the costs of No. I of us. -
No. 2 and 4 of us have. to construct separate houses by the end of
May 1976 and reside there.
As there are no sufficient movable and gold jewels in the family house
No. 2 and 4 have no separate share in it. No. I of us is liable to pay
the family dues if any and bear the expenses of the viniyogas of Gods
and devils.
Towards the maintenance of our mother each of us is liable to pay 2
muras of rice and Rs. 25/- every year and obtain receipts and her
obsequies is to be performed by No. I, 2, 3 and 4 of us in equal
shares. No. 2 and 4 are not liable for the family debts. The share of
No. 3 of us is retained by No. l of us he is liable to deliver the same
when he demands, we Nos. l, 2 and 4 of us agreed for the terms in
the presence of the grahastas with our full consent and executed this
agreement we are liable to abide by all the conditions of this agreement.
If any of us incurs loss etc. by non performing as per the agreement, ·
the person who had not performed his part is liable to pay the loss
etc. and that person is entitled to recover the aniounts. Ac~ordingly
we have entered into this agreement."
3. Allegedly, the said family settlement had not been acted upon in so
far as the appellant herein did not pay a sum of Rs; 15;000/- to the respondents
--1--
M. VENKATARAMANA HEBBAR (D) BY L.RS. v. M. RAJAGOPAL HEBBAR [S.B. SINHA, l.] 945
"r herein. In their complaint, the appellant stated:- A
"VI. The plaintiffs further submit that the alleged agreement dt.
30.03.1973 has never come into force and it has never been acted
upon. The 1st plaintiff has never been paid any amount under the said
agreement, the averments made in the notice dated 05.05.1988 and the
reply dated 12.05.1988 in this regard are palpably false, defendants \ B
to 4 cannot take shelter under the said agreement and deny the
plaintiffs their lawful share in the plaint properties. Further, the said
document is also not valid since the 6th and the 9th defendants are
not parties to it."
4. The averments made in the plaint to that effect had not been denied c
or disputed. Appellant, however, raised a contention that by reason thereof
as the parties have arrived at a family settlement and a part of it have been
acted upon; the plaintiffs/respondents were estopped from filing the suit.
Learned trial Judge having regard to the rival contentions raised by the
parties, inter-alia framed the following issue:- D / "3. Whether defendants l to 3 prove that plaintiff-I and defendant6 were paid money in respect of their share as per agreement dated
30.3.1973?"
5. The first part of the said issue, namely whether the appellant herein E had paid the said sum of Rs. 5,000/- in favour of plaintiff No. 1, was answered
in the negative. Despite the said finding, in view of the said purported family
settlement dated 30.3.1973, the learned Trial Judge decreed the suit. On an
appeal having been preferred by the said decree by the respondent herein,
the High Court by reason of the impugned judgment reversed the same intera/~a holding:- F
(i) The said deed offamily settlement dated 30.3.1973 not being registered,
was inadmissible in law.
(2) The family settlement could not have been acted upon as all the
parties are not signatories thereto. G
It was opined:-
...,-
"11. The view of the court below that there was a partition and the
-plaintiff is governed by the same and severance of status cannot be
accepted at all. Even if there be severance of status, there is no H
946 SUPREME COURT REPORTS [2007} 4 S.C.R.
A partition in the eye of law. Therefore, a preliminary decree has to be
passed declaring that the plaintiff is entitled to one fourth share.
12. It is open to the plaintiff to move to (sic) final decree for division
and separate possession. It is open to the 1st Defendant-Respondent
to put forward all his claim regarding his spending' moneys on the
B family in the minutes of the enquiry to be conducted by the enquiry
authority who shall consider all his objections."
6. Mr. S.N. Bhat, learned counsel appearing on behalf of the appellant
in support of the appeal submitted that the High Court committed a manifest
error in arriving at the aforementioned finding inasmuch as a deed of family
C settlement is not required to be compulsorily registered under Section I 7 of
the Registration Act.
D
7. Learned counsel contended that the said deed of family settlement
has wrongly been held to be ineffective only because all parties did not sign
thereto.
8. The learned counsel appearing on behalf of the respondent, on the
other hand, supported the impugned judgment. ·
9. The execution of the said document is not, in question. It is furthermore
E not in dispute that all the co-shareholders are not parties thereto. Any coowner can cause a severance in the status of joint family by expressing his
unequivocal intention to separate. Such intention can be expressed even by
filing a suit for partition. But, despite such separation in the joint status,
parties may continue to possess the lands jointly unless a partition of the
joint family property takes place by metes and bounds.
F
10. For the purpose of this case, we will proceed on the assumption that
the said deed of family settlement was not required to be compulsorily
registered>in terms of Section I 7 of the Registration. Act as by reason thereof,
the relinquishment of the property was to take effect in future. But there
cannot be any doubt whatsoever that before the Court rejects a claim of
G partition of joint family property, at the instance of all the co-owners, it must
H
. be established that there had been a partition by metes and bounds. By
reason of the family settlement, a complete partition of the joint family property _ . ·
by metes and bounds purported to have taken place. One of the co-sharer,
however, did not join in the said purported family settlement.
11. The contract between the parties, moreover was a contingent contract.
-
....
M. VENKATARAMANA HEBBAR (D) BY L.RS. v. M. RAIAGOPAL HEBBAR [S.B. SINHA. J.) 94 7
It was to have its effect only on payment of the said sum of Rs. 15,000/- by~ A
the plaintiff and other respondents by the defendant Nos. I to 3. It has been
noticed hereinbefore by us that as of fact, it was found that no such payment
had been made. Even there had been no denial of the assertions made by the 1
appellant in their written statement in that behalf. The said averments would,
therefore, be deemed to be admitted. Order VIII Rule 3 and Order VIII Rule, · B
5 of the Civil Procedure Code read thus:-
"3. Denial to be specific.-It shall not be sufficient for a defendant in.
his written statement to deny generally the grounds alleged by the
plaintiff, but the defendant must deal specifically with each allegation .
of fact of which he does not admit the truth, except damages. C
5. Specific denial.-[(l)] Every allegation of fact in the plaint, if not,
denied specifically or by necessary implication, or stated to be not ·
admitted in the pleading of the defendant, shall be taken to be admitted
except as against person under disability.
Provided that the Court may in its discretion require any fact so D
admitted to be proved otherwise than by such admission.
[(2) Where the defendant has not filed a pleading, it shall be lawful
for the Court to pronounce judgment on the basis of the facts '
contained in the plaint, except as against a person under a disability,
but the Court may, in its discretion, require any such fact to be 1
E
proved.
(3) In exercising its discretion under the proviso to sub-rule (I) or 1
under sub-rule (2), the Court shall have due regard to the fact whether
the defendant could have, or has, engaged a pleader.
( 4) Whenever a judgment is pronounced under this rule, a decree shall
be drawn up in accordance with such judgment and such decree shall
bear the date on which the judgment was pronounced.]"
12. Thus, if a plea which was relevant for the purpose of maintaining
a suit had not been specifically traversed, the Court was entitled to draw an 1
G
inference that the same had been admitted. A fact admitted in terms of Section
_ 58 of the Evidence Act need not be proved .
13. Even otherwise, the Court had framed an issue and arrived at a
positive finding that the appellant herein did not pay the said sum of H
948 SUPREME COURT REPORTS [2007) 4 S.C.R.
A Rs. 15,000/- in favour of the plaintiff Nos. l to 3. The High Court has also
affinned the said finding.
14. The High Court, therefore, cannot be said to have committed any
error whatsoever in arriving at the finding that by reason of the said purported
deed of family settlement, the co-owners had not partitioned the joint family
B property by meets and bounds. The plaintiffs/respondents were thus, yet to
relinquish their rights in the joint family properties by receiving the said
amount of Rs. 15,000/-. Deed of family settlement had not been given its full
effect to.
15. We agree with the High Court that even on that count, the plaintiffs
C suit should have been decreed. We, therefore, do not find any merit in this
appeal which is dismissed accordingly. However, in the facts and circumstances
of the case, the parties shall bear their own costs.
B.B.B. · Appeal dismissed.
-;
,,..
SECRETARY,AKOLATALUKAEDUCATIONSOCIETY ANDANR A
v.
SHIV An AND ORS.
APRIL 5, 2007
{S. B. SINHA AND MARKANDEY KA TJU, JJ.] B
Maharashtra employees of Private Schools (Conditions of Service)
Rules, 1981-Rule 26(2)(ii)-Termination without notice-Employees not
given three months notice-Order of termination bad in /aw-Labour law- C
Maharashtra Employees of Private Schools (Conditions of Service) Regulation
Act, 1977.
Labour laws-Back wages-Termination of employees-Tribunal found
order of termination malafide and allowed full back wages-Challenge
against-Held: Tribunal ought not to have granted full back wages-Tribunal 'D
failed to take into account the financial condition of employer-Jn peculiar
facts and circumstances, interest of justice would be met if grant of back
wages is confined to 25% from date of termination till their reinstatement.
Appeal-Fresh plea-Plea that institute in question was not recognized E one and Tribunal did not have jurisdiction to entertain the case, raised for
the first time before this Court-Held, not entertainable.
Appellant No. 1 has been imparting vocational training to the students
admitted in their training institute, in different disciplines like Draftsman
Civil, Electrician, Wireman, Welder and Fitter etc. The strength of the F
students in the aforementioned disciplines allegedly began to go down from
year to year. The services of respondents-Employees/teachers were terminated
on the plea that school had to be closed down. The respondents filed appeal
before the School Tribunal. The jurisdiction of the Tribunal to entertain the
said appeals was questioned on the ground that the institute in question was G
not a school within the meaning of the provisions of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act, 1977.
The Tribunal held that the institute was school within the meaning of the
provisions of the said Act and that the plea of the appellant that the institute
had to be closed down being incorrect, the orders of termination were ma/a
fide. Appellant unsuccessfully filed writ petition before High Court. Hence H
949
950 SUPREME COURT REPORTS [2007) 4 S.C.R.
A the present appeal.
Appellant contended that the Institute is not covered by the definition of
the 'private school' within the meaning of the provisions of the said Act, as it
was not recognized by the authorities under. the said Act; the Tribunal merely
proceeded on the basis that the school, in fact, was not closed down, but having
B failed to take into consideration the charts filed before it, from which, it would
appear that the number of students had gone down in different disciplines;
and that the Tribunal wrongly allowed full back wages to the teachers without
taking into consideration the financial conditions of the appellant
C Partly allowing the appeal, the Court
D
HELD 1.1. The question as to whether the provisions of the said Act
were applicable in the case of Appellant school although raised a question of
jurisdiction, it was necessary for the appellant to plead the jurisdictional fact
in relation thereto. [Para 15) (956-G]
1.2. It is true that in the light of the interpretation clause contained in·
the Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977, a 'private school' was-required to be recognized by the
authorities specified therein. The Tribunal had found that it was recognized
E by the Ceritral Government. The State also in its counter affidavit contended
that it is recognized by the State. Appellant did not raise a contention before
the Tribunal that the institute in question was not recognized by the.
authorities specified under sub-section (21) of s~2 of the Act. The said
content.ion was required to be specifically raised so as to enable the
respondents to meet the same. As the jurisdictional fact required for
F determining the jurisdiction of the Tribunal had not been stated by the
appellant, such a contention cannot be allowed to be raised now for the first
time. {Para.16] {956-H; 957-A-B)
2.1. There cannot be any doubt whatsoever that ifthe 'institute' comes·
within the description of 'school' in terms of the provisions of the said Act, G . . before terminating the services of the respondents, it was obligatory on their
part to satisfy the conditions precedent therefor. [Para 17] [957-C]
2.2. Rule 26 of the Maharashtra employees of Private Schools
(Conditions of Service) Rules, 1981 provides that a permanent employee riiay
H be retrenched by the management after giving him three months' notice on
one or more ground specified therein. Stoppage of imparting coaching in
·-
SECRETARY, A KOLA TALUKA EDUCATION SOCIETY v. SHIVAJI 95 J
respect of some courses of studies was one of them. Admittedly, the A
respondents had not been given three months notice. The order of termination
was, therefore, bad in law. (Para 18) (957-D)
. 3.1. In view of the provisions contained in sub-clause (ii) of clause (2) ~f
Rule 26, it was not necessary to obtain prior approval of the Education Officer,
as a technical or a vocational school does not come within the purview thereof. B
· The contention raised by the appellants before the Tribunal that the institute
was required to be closed down was found to be factually incorrect and on that
ground the decision of the Tribunal to the effect that the termination of services
of the respondents were bad in law cannot be said to be suffering from any
error of law apparent on the face of the record. (Para 19) (957-F) C ·
3.2 It is now well-settled that back wages should not granted'
automatically. The Tribunal however, ought not to have granted full back
wages. Full back wages should not be granted only because it would be lawful ·
to do so. Before such an order is passed, a judicial or quasi-judicial authority' D
must consider all aspects of the matter. Appellant has produced facts to show·
decline in strength of the students in different disciplines. The same has not ·
been disputed. In some disciplines the strength of the students has considerably '
gone down. The school is an unaided one. It, therefore, must meet its financial
need from the fees realiud from the students. It was a relevant consideration. 1
The Tribunal failed to take the said fact into consideration. The financial· · E
condition of the school has not been denied or disputed. In the peculiar facts
and circumstances of this case, interest of justice shall be met if grant of
back wages is confined to 25% only from the date of termination of the
respondents till their reinstatement.
(Paras 21 and 23) (957-G-H; 958-B; G, H) F
U.P. State Brassware Corporation Ltd. and Anr. v. Uday Narain Pandey,
(2006) 1 SCC 479; A. P. SRTC and Anr. v. B. S. David Paul, (2006) 2 SCC
282; Banshi Dhar v. State of Rajasthan and Anr., (2006) 11SCAL~199 and
U.P. SRTC v. Mutthu Singh, (2006) 7 SCC 180, relied on.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1816of2007.
From the Final Judgment and Order dated 23.01.2006 of the High Court
of Judicature of Bombay, Bench at Aurangabad in Writ Petitions Nos. 1143
to 1149, 1269, 1270 and 1336 of2005.
H
--+' \
952 SUPREME COURT REPORTS (2007) 4 S.C.R.
A Shekhar Naphade Sr. Adv., Uday B. Dube and Kuldip Singh for the -- Appellants. ,._
Vinayak Dixit Sr. Adv., Shivaji M. Jadhav, Himanshu Gupta, Brij Kishor
Sah, Rahul Joshi and S.S. Shinde (for V.N. Raghupathy) for the Respondents.
B The Judgment of the Court was delivered by . .
S.B. SINHA, J. I. Leave granted.
2: The State of Maharashtra enacted 'The Maharashtra Employees of
c
Private Schools (Conditions of Service) Regulation Act, 1977 (for short, 'the
Act') to regulate recruitment and conditions of service of employees in certain
private schools. It came into force with effect from 20.03.1978. 'Private School'
has been defined in Section 2(20) of the Act to mean :
"Private School", means a recognized school established or
D administered by a Management other than the Government or a local
authority."
3. The terms 'recognized' and 'school' have been defined in Section ,,_
2(21) and 2(24) respectively in the following terms :
E "2(21 ).- "Recognized" means recognized by the Director, the Divisional
Board or the State Board, or by any officer author~zed by him or by
any of such Boards;"
"2(24).- "School", means a primary school, secondary school, higher
secondary school, junior college of education or any other institution
F by whatever name called including technical, vocational or art
institution or part of any such school, college or institution, which
imparts general, technical, vocational, art or, as the case may be, ...
special education or training in any faculty or discipline or subject
below the degree level;"
G 4. Appellant No. I herein runs a training institute. It imparts vocational
training to the students admitted therein in different disciplines e.g. Draftsman
Civil, Electrician, Wireman, Welder and Fitter etc. The strength of the students
in the aforementioned disciplines allegedly began to go down from year to _;
-\ ,
H
SECRETARY, AKOLA TALUKA EDUCATION SOCIETY v. SHIVAJI [S.B. SINHA, J .] 953
year. So much so, no student took admission in the courses of 'Draftsman A
Civil' or 'Welder'. The relevant portion of the chart showing details of
admissions in the aforementioned disciplines reads as under :
"Sr. Academic Draftsman Civil Electrician Wireman Welder Fitter
No. Year I
Sanctio. Actual Sanctio- Actual Sanctio Actual Sanctio Actual Sanctio-- Actual '
ned admi- ned addmi- ned admi .. ned admi .. ned ad mistrength ssion strength ssion strength ssion strength ssion strength ssion
14 August 16 08 16 18 16 18 16 18 24 29
1998 ...
15 August 16 09 16 18 16 09 16 18 2A 19
1999
16 August 16 07 16 17 16 07 16 12 24 14
2000
17 August 16 00 16 09 16 06 16 05 2A 11
2001
18 August 16 00 16 01 16 05 16 00 24 02
2002
5. Similarly, in the certificate courses of six months and one year also,
there had been a steady decline, as would appear from the following charts:
"Details of Admission for Certificate Courses of six months
Sr. Academic Electric Motor & Armetcher Electronic Assembly &
No. Year Winding Trouble shooting
Sanctioned Actual Sanctioned Actual
Strength Admission Strength Admission
1. Jan. 1999 20 13 25 10
2. Jul. 1999 20 16 25 05
3. Jan. 2000 20 05 25 06
4. Jul. 2000 20 15 25 07
5. Jan. 2001 20 08 25 -
6. Jul. 2001 20 06 25 -
7. Jan. 2002 20 - 25 -
8. Jul. 2002 20 - 25 -
B
c
I
D
E
F
G
H
954 SUPREME COURT REPORTS [2007) 4 S.C.R.
A Details of Admission for Certificate Courses of one year
Sr. Academic Tailoring & Cutting Lathe Machine Computer Operation
No. Year Operator (Part-time)
Sanctioned Actual Sanctioned Actual Sanctioned Actual
.. Strength Admission Strength Admission Strength Admission
B l. Jul. 1998 40 34 25 17 20
2. Jul. 1999 40 24 25 09 20 - 3. Jul. 2000 40 26 25 05 20 -.-
4. Jul. 2001 40 32 25 06 20 -
c 5. Jul.-2002 40 - 25 - 20
6. Respondent No. I herein was appointed on a temporary basis. The
services of the private respondents were purported to have been temporanly
terminated as allegedly a decision had been taken to close down the institute
.with effect from 12.08.2002, contending that the said purported orders of
D termination were violative of the Act and the Rules framed thereunder.
7. Appeats·thereagainst were filed by the aggrieved employees/teachers
before the School Tribunal, Pllne Region. The jurisdiction of the tribunal to
entertain the said appeals was questioned on the ground that the institute in
question was not a school within the meaning of the provisions of the said
E Act. The Tribunal, however, in its judgment held : (i) As the appellan:t was
duly recognized by the Central Government permanently without grant-in-aid,
it was a school within the meaning of the provisions of the said Act; (ii) Inter
a/ia, on ·the premise that the services of all the staff and teachers were not
terminated, the plea of the appellant that the institute had to be closed down
F .being incorrect, the orders of termination were ma/a fide;
8. The Tribunal furthermore took note of the fact that during pendency
of the said appeals, some new teachers had been appointed.
9. The writ petition preferred by the appellant thereagainst has been
G dismissed by reason of the impugned judgment.
IO. Mr. Shekhar Naphade, the learned Senior Counsel appearing on
behalf of the appellants, would urge :
(i) The institute is not covered by the definition of the 'private school'
within the meaning of the provisions of the said Act, as it was not recognized
H by the authorities under the said Act.
,..
-
+
SECRETARY, A KOLA TALUKA EDUCATION SOCIETY v. SHIVAJI [S.B. SINHA, J.] 955
(iI) The Tribunal in its judgment merely proceeded on the basis that the A .. school, in fact, was not closed down, but having failed to take into
consideration the charts filed before it; from which, it would appear that the
number of students had gone down in different disciplines, and thus, the
impugned judgment cannot be sustained.
(iii) The Tribunal wrongly allowed full back wages to the teachers B
without taking into consideration the financial condition of the appellant.
11. Our attention, in this behalf, has also been drawn to the following
statements made in the Rejoinder to the Counter Affidavit of Respondent
Nos. 1 to 3 before this Court:
"I say that the details of the number of students currently studying C
in the Institute and the fees collected from them are as follows :
Students studying in 2nd 47 x Rs.6,000 (Fees collected Rs.2,82,000/-
year of ITI from every student)
Students studying in lst 72 x Rs.8,000/- (Fees Rs. 5, 76,000/-
year of ITI collected from every
student)
Students studying in 7 x 2,000 (Fees collected Rs.14,000/-
certificate course from every student)
Total Rs.8, 72,000/-
I say that the details regarding the expenses incurred by the
Petitioner on the salary and other miscellaneous expenses are as
follows:
1. Towards salary of Rs. 65,200/- per month x Rs.7,80,400/-
staff at current rate 12 months per annum
of consolidated pay
2 Expenses for raw Rs.2,400 x 126 (No. of Rs.3,02,400/-
material per student students)
per year Rs. 2400
3. Misc. Expenses Rs.2,00,000/-
(Telephone bill,
electricity bill,
stationery, travel
expenses, repairs, etc.
Total Rs.l 2.82.800/-
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SUPREME COURT REPORTS [2007] 4 S.C.R.
Considering the above mentioned two tables, it becomes clear
that the Petitioner is facing a deficit of Rs.4,10,800/- in the current
academic year .. The Petitioner if is directed to pay 100% back wages
to the Respondents employees, it would create a burden of more than
Rs. 40 lacs. The Petitioner is not in a position to pay back wages and
the said direction would affect the poor students, who are studying
in the Institute and the efforts of the Management to re-establish the
Institute would be thwarted. It is respectfully submitted that the
institute is being run by reducing the tuition fees so as to attract the
higher number of students. As stated earlier the fees charged from the
students have dwindled from Rs.20,000/- per annum in the year 1998
C to Rs.6,000/- to 8,000/- at present."
12. It was furthermore submitted that the institute having been set up
in a tribal area, it is unlikely that many students would take admission in the
said institute in future.
D 13. Mr. Vinayak Dixit, the learned Senior Counsel appearing on behalf
of the respondents; on the other hand, supported the impugned judgment
contending that the plea taken by the appellant that the school was required
to be closed down was an act of ma/a fide on the part of the appellants. The
learned counsel would contend that in terms of Rule 26 of the Maharashtra
E Employees of Private Schools (Conditions of Service) Rules, 1981, as the
appellant was bound to give three months' notice and was furthermore required
to obtain prior approval of the competent authority specified therein; and as
the mandatory conditions for retrenching th~ services of the respondents had
not been complied with, the orders of termination were void ab initio.
F 14. It was submitted that the appellant had not paid any salary to the
teachers for the last 23 months, although they had been reinstated in terms
of this Court's order dated 19.08.2006. It was also submitted that even after
their reinstatement, they are being paid salary only on a consolidated basis.
G 15. The question as to whether the provisions of the said Act were
H
applicable in the case of Appellant school although raised a question of
jurisdiction, in our opinion, it was necessary for the appellant to plead the
jurisdictional fact in relation thereto.
16. It is true that in the light of the interpretation clause contained in
SECRETARY. AKO LA TALUKA EDUCATION SOCIETY~- SHIV All [S.B. SINHA. l.] 957
the said Act, a 'private school' was required to be recognized by the authorities A
specified therein. The Tribunal had found that it was recognized by the
Central Government. The State also in its counter affidavit contended that it
is recognized by the State. Appellant herein did not raise a contention before
the Tribunal that the i~stitute in question was not recognized by the authorities
specified under sub-section (21) of Section 2 of the Act. The said contention B
was required to be specifically raised so as to enable the respondents herein
to meet the same. As the jurisdictional fact required for determining the
jurisdiction of the Tribunal had not been stated by the appellants, we are of
the opinion that such a contention cannot be allowed to be raised before us
for the first time.
17. There cannot be any doubt whatsoever that ifthe 'institute' comes
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within the description of 'school' in terms of the provisions of the said Act,
before terminating the services of the respondents, it was obligatory on their
part to satisfy the conditions p_recedent therefor,
18. R~le 26 of the Rules provides that a permanent employee may be D
_retrenched by the management after giving him three months' notice on one
~ or more grounds specified therein. Stoppage of impart1. coaching in respect
of some courses of studies was one of them. Admitted I , the respondents had
not been given three months' notice. The order of termination was, therefore,
bad in law.
E
19. We may, however, state that in view oftheprovisions contained in
sub-clause (ii) of clause (2) of Rule 26, it was not necessary to obtain prior
approval of the Education Officer, as a technical or a vocational school does
• not come within the purview thereof. There cannot furthermore be any doubt
whatsoever that the contention raised by the appellants before the Tribunal F
that the institute was required to be closed down was found to be factually
-; incorrect and on that ground the decision of the Tribunal to the effect that
the termination of services of the respondents were bad in law cannot be said
to be suffering from any e.rror of law apparent on the face of the records.
20. The Tribunal, however, in our opinion ought not to have granted full G
back wages. Full back wages, as is well-known, should not be directed to be
granted only because it would be lawful to do so. Before such an order is
passed, a judicial or a quasi-judicial authority" must consider all aspects of the
matter. Appellant herein has produced facts tci show decline in strength of
the students· in different disciplines. The same has not been disputed. We
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958 SUPREME COURT REPORTS (2007) 4 S.C.R.
A have noticed hereinbefore that in some disciplines the strength of the students
has considerably gone down. The school is an unaided one. It, therefore,
must meet its financial need from the fees realized from the students. It was
a relevant consideration. The Tribunal, in our opinion, failed to take the said
fact into consideration. The financial condition of the school, as noticed
B supra, has also not been. denied or disputed.
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21. It is now well-settled by a larg~ number of decisions of this Court
that back wages should not granted automatically. Jn U.P. State Brassware
Corporation Ltd. and Anr. v. Uday Narain Pandey, [2006] I SCC 479, this
Court observed :
"22. No precise formula can be laid down as to under what
circumstances payment of entire back wages should be allowed.
Indisputably, it depends upon the facts and circumstances of each
case. It ·would, however, not be correct to contend that it is automatic.
It should not be granted mechanically only because on. technical
grounds or otherwise an order of termination is found to be in
contravention of the provisions of Section 6-N of the U.P. Industrial
Disputes Act."
[See also Banshi Dhar v. State of Rajasthan & Anr., (2006) 11 SCALE
199 Para 11]
22. Jn U.P. SRTCv. MutthuSingh, [2006] 7 SCC 180], this Court opined:
" ... But we are fully satisfied that in the facts and circumstances of the
case, back wages should not have been awarded to the respondentworkman. In several cases, this Court has held t.iat payment of back
wages is a discretionary power which has to be exercised by a court/
tribunal keeping in view the facts in their entirety and neither straight
jacket formula can be evolved nor a rule of universal application can
be laid down in such cases."
[See also A.P. SRTC ar.d Anr. v. E.S. David Paul - [2006] 2 SCC 282]
23. We, therefore, are of the opinion that in the peculiar facts and
circumstances of this case, interest of ju•tice shall be met if grant of back
wages is confined to 25% only from the date of termination of the respondents·
till their reinstatement. It is, however, made clear that the respondents shall
be entitled to recei-:e entire salary for the period they had wo!1<ed prior to their
-
...
SECRETARY, AKOLA TALUKA EDUCATION SOCIETY v. SHIVAJI [S.B. SINHA, J ] 959
termination as also post reinstatement.
24. The appeal is allowed to the aforementioned extent with the
aforementioned directions. However, in the facts and circumstances of the
case, there shall be no order as to costs.
A
D.G. Appeal partly allowed. B
