Only if wrongful termination proved reinstatement with continuity of service & back wages granted:SC

Deepali Gundu Surwase (supra), the matter arose under the Maharashtra Employees of Private Schools (condition of service) Regulation Act, 1977. This Court undoubtedly laid down that in the case of wrongful termination of service reinstatement with the continuity of service and back wages is the normal rule. It was subject to the qualification that the Court may inter alia take into consideration the length of service and the nature of misconduct if any proved, the financial condition of the employer and similar other factors. For the reasons which we have indicated in the facts of this case Respondent No. 1 cannot be permitted to draw any benefit from the said pronouncement.(Para 24)

STATE OF ODISHA & ORS. V/S KAMALINI KHILAR & ANR.

CIVIL APPEAL NO._______OF 2021

[Arising out of SLP (CIVIL No.) of 2021)

(Diary No. 24414/2020)

28 April’ 2021

The Hon’ble Supreme Court consisting of Justice Uday Umesh Lalit and Justice K. M. Joseph held in this case that the matter arose under the Maharashtra Employees of Private Schools (condition of service) Regulation Act, 1977. This Court undoubtedly laid down that in the case of wrongful termination of service reinstatement with the continuity of service and back wages is the normal rule. It was subject to the qualification that the Court may interalia take into consideration the length of service and the nature of misconduct if any proved, the financial condition of the employer and similar other factors. For the reasons which we have indicated in the facts of this case Respondent No. 1 cannot be permitted to draw any benefit from the said pronouncement. A detailed note has been made after hearing the arguments of both the parties.

The Appellant No. 1, namely the State of Odisha, passed a resolution dated 12.03.1996 prescribing the procedure for recruitment of Government teachers in primary schools. The Appellant No. 3 namely the District Inspector of Schools, Bhadrak-II, Bhadrak had to determine the number of vacancies to be filled up through direct recruitment. Appellant No. 3 had to also determine the number of vacancies which were required to be reserved for each reserved category. It is the case of the Appellants that based on the same, on 29.07.1996 by letter dated 29.07.1996, it was communicated to the Respondent No. 1 that her name was sponsored by the District Employment Exchange for the post of primary school teacher. She was called upon to submit her application along with her documents, the Respondent No. 1 was directed to attend the viva-voce examination. A merit list was made. The Respondent No. 1 secured the 22nd position in the SEBC (Women) Category. There were only 16 vacancies which were to be filled by SEBC (Women) Category candidates. Respondent No. 1 was favoured with an order of appointment dated 04.04.1998. She was issued such an appointment according to the Appellants on the basis that one of the successful candidates, namely the Respondent No. 2 who secured the 16th position could not join within time. The Respondent No. 1 joined based on the joining letter dated 20.04.1998. While so complaining that she was not served with the appointment order and that order was issued in a wrong name, Respondent No. 2 filed representation which based on an order in an application before the Tribunal was disposed of with certain directions by the 1st Appellant O.A No. 650 of 2000 was thereafter filed by Respondent No. 2 before the Hon'ble Orissa Administrative Tribunal. The Tribunal allowed the O.A. by order dated 21.09.2001.

After going through the facts, the court noted that, “In so far as, it is obvious that Smt. SnehalataNayak who has secured less marks and did not figure in the physically handicapped list, has been given appointment under the "physically handicapped" quota and has been allowed to continue along with several others, including S.E.B.C (male) and General (male) candidates who have secured less mark than the applicant, (Ref. Letter No. 3235 dtd. 22.10.2001 or D.I. of Schools, Bhadrak-II). Moreover, at least a show-cause notice should have been issued and an opportunity to show-cause before discharge allowed to the applicant even if for argument sake only it is accepted that her service can be terminated, as decided by the Hon'ble Apex Court in the case on Basudeo Tiwari-Vrs-SidoKandhu University and others (AIR 1998 SC 3261). As no show-cause notice was issued and no opportunity to be heard was allowed and the principle of 'Audi alteram partum' was not observed, even if the applicant is deemed to be the junior most in the S.E.B.C (Women) list, her termination is illegal.(Para 5)

With regard to the above, the Learned Counsel for the Appellants submitted that the High Court while granting limited relief of quashing the direction to create a supernumerary post, erred in the issuance of the direction to appoint the Respondent No. 1 in the vacancy. This is after having interfered with the order of the Tribunal as noted. The Respondent No. 1 came to be appointed only on the basis that Respondent No. 2 who admittedly had secured a higher rank than the Respondent No. 1 had not reported for joining. It was only in compliance with the order of the Tribunal, that the services of Respondent No. 1 had to be terminated. It is further contended that as things stand there is no provision for making any appointment as the method of appointment has been altered to absorption from trained junior teachers. If the Respondent No.2 had been served the appointment letter, then the Respondent no. 1 would not have been given an appointment based on her position in her merit list for S.E.B.C (Women) Category. The Respondent No. 1 never objected to the method of preparing the select lists and is therefore not entitled to raise objection now to the preparation of the separate list. Reference is made to judgment of this Court in Union of India and Ors. vs. Dalbir Singh and Ors. The Respondent No.1 was always aware of the separate list for each Category. She got the benefit of relaxation of age by applying as a S.E.B.C (Women) candidate. Her non-inclusion in any other list or the selection procedure interalia was never challenged by her. It is pointed out that in the written submission of the Respondent No. 1, a misleading statement is made that the vacancy occurred prior to 03.06.1996 which is why the government proceeded to fill up the vacancy by calling upon the Respondent No. 1. It is pointed out that the letter written by the 3rd Appellant to the 2nd Appellant was about complying with the order of the Tribunal in the application filed by the Respondent No. 2. In case of respondent 1 it is to be noted that the Respondent No. 1 was not party to the earlier proceeding. The order adversely affecting the Respondent No. 1 should not have been passed and the government should have challenged the order passed in the earlier proceeding. There is the bar under Section 115 of the Indian Evidence Act, 1872. In other words, there is an estoppel.

After hearing the arguments of respondents, the court found out that, “It would appear to be clear that under the resolution and procedure adopted, separate lists were prepared for various categories. Vacancies were earmarked for different groups. Merit list was also based on this classification. The Respondent No. 1 figured in the merit list at S.no. 22 for the category S.E.B.C. Women. The surest way to find out whether the termination of service of Respondent No. 1 was in tune with the direction issued by the tribunal in the earlier O.A. filed by the Respondent No. 2 is to find out as to whether the Respondent No. 1 would have secured the appointment, if the appointment letter was issued in the name correctly of the Respondent No. 2 and she had joined on the said basis.” (Para 15)

The court also stated that, “this is not a case involving disciplinary proceedings against Respondent No. 1. No stigma is attached to the Respondent No. 1. The whole exercise was necessitated no doubt as a result of a mistake committed by the Appellants in not sending the appointment letter at the correct address to Respondent No. 2. In view of the fact that order O.A. No. 650 of 2000 had become final the Appellants were obliged to comply with the order. If they had nothing to offer by explanation to the case of the Respondent No. 2 that she was not served with the letter of appointment, the Respondent No. 1 would not be justified in contending that the Appellant should have challenged the order of the Tribunal. We find merit also in the contention of the Appellants that having regard to the Resolution under which the entire appointment were carried out, the matter is to be governed by the separate merit lists which were prepared. In the nature of the facts which make up the dispute in this case, it only means that the Respondent No. 1 was the junior most in the category of S.E.B.C (Women). The order of the Tribunal to be complied with contemplated dispensing the service of the candidate who was appointed in place of the Respondent No. 2.” (Para 16)

With regard to the above the court held that, “ We also cannot lose sight of the fact nearly two decades have gone by and only for the reason that the Respondent was not offered an opportunity of being heard in the facts of this case, we cannot support the order of the High Court in directing the appointment of the Respondent No. 1. It is not as if the High Court has found that the termination of the service of the Respondent No. 1 was ab initio void or illegal as such. The Court in fact set aside the direction of the Tribunal to reinstate by creating a supernumerary post. This is not challenged by Respondent No. 1. It directed only that the appointment of the Respondent No. 1 be made in the vacancy. Therefore, the claim of Respondent No. 1 for back wages from the date of termination is at any rate clearly untenable. Deepali Gundu Surwase (supra), the matter arose under the Maharashtra Employees of Private Schools (condition of service) Regulation Act, 1977. This Court undoubtedly laid down that in the case of wrongful termination of service reinstatement with the continuity of service and back wages is the normal rule. It was subject to the qualification that the Court may inter alia take into consideration the length of service and the nature of misconduct if any proved, the financial condition of the employer and similar other factors. For the reasons which we have indicated in the facts of this case Respondent No. 1 cannot be permitted to draw any benefit from the said pronouncement.” (Para 24)

Concluding the court stated that:

“The upshot of the above discussion is that the termination of the service of the Respondent No. 1 was unavoidable in the light of the binding order of the Tribunal in O.A. No. 650 of 2000. Consequently, the order of the High Court to the extent impugned is to be set aside. Resultantly, we allow the appeal and the order of the High Court impugned is set aside and the order passed in the O.A. no. 917 of 2002 filed by the Respondent No. 1 will stand set aside. No order as to costs in the appeal. We make it clear that if the cost of Rs. 50,000 ordered as condition to condone delay in filing the SLP is not paid as aforesaid the impugned judgment will stand, the application for condoning delay will stand dismissed and the leave granted will stand revoked and this judgment will stand recalled. If the cost is deposited, the same can be withdrawn by the Respondent No. 1.” (Para 25, 26)

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Aaron Varughese