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Kuparpal M. Appa and anr. Vs. Dodia Pankajkumar S. and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1979)2GLR597
AppellantKuparpal M. Appa and anr.
RespondentDodia Pankajkumar S. and ors.
Cases ReferredChhaganbhai P. Oza v. The Ahmedabad Jesuit Schools Society and Ors.
Excerpt:
.....service where termination is otherwise in terms of section 36(1). as elaborated by me above, partial termination is also termination and analogy of contractual relationship can't be invoked to avoid the necessary implications of a beneficial legislation like the gujarat secondary education..........33 of the secondary education regulations 1974, for part termination of his employment as a full-time teacher, the part-termination being the appointment as a part-time teacher on his service being terminated as a full time teacher.2. the petitioner admittedly was a full time teacher since the year 1967. when he had joined the high school in question as a high school teacher in the secondary section, he worked as a full time teacher till he was reduced as a part-time teacher with effect from july, 1975. the teacher concerned is mr. dodia and will be hereinafter referred to by his name. he had made an application of the tribunal which came to be registered as the application no. 210/75. he prayed for compensation alleging that his service as a full time teacher had come to be terminated.....
Judgment:

N.H. Bhatt, J.

1. This is a petition by the Managing Trustee and the Principal looking after one Secondary School known as Balkrishna High School, in the city of Ahmedabad, challenging the order of the Tribunal constituted under the Gujarat Secondary Education Act, 1972, directing the management to compensate the respondent No. 1 under Regulation 33 of the Secondary Education Regulations 1974, for part termination of his employment as a full-time teacher, the part-termination being the appointment as a part-time teacher on his service being terminated as a full time teacher.

2. The petitioner admittedly was a full time teacher since the year 1967. When he had joined the High School in question as a High School teacher in the secondary section, he worked as a full time teacher till he was reduced as a part-time teacher with effect from July, 1975. The teacher concerned is Mr. Dodia and will be hereinafter referred to by his name. He had made an application of the Tribunal which came to be registered as the application No. 210/75. He prayed for compensation alleging that his service as a full time teacher had come to be terminated in terms of Regulation 33 of the Secondary Education Regulations, 1974 which reads, as follows:

33., Termination of employment-(1) Where service of a permanent employee is terminated by the management in accordance with the provisions of Section 36 such employee shall be entitled to compensation.

(a) equal to 6 months' salary including allowance if the employee has put in service in the school for a period not exceeding five years and;

(b) equal to 6 months' salary including allowance for the first five years and a month's salary for every year of the period exceeding five years, if the employee has put in service in the school for a period exceeding five years.

(2) The service of a temporary employee may be terminated by the management at any time without assigning any reason after giving one calendar month's (Pay and Allowances, if any) in lieu of such notice:

Provided that no notice shall be given during vacation or so as to cover any part of the vacation or within the first fortnight after the vacation.

3. The petitioners on the other hand, contended that Mr. Dodia having been continued in employment, albeit as a part-time teacher, there was no question of termination and so the compensation was not admissible. The only point of law that arises in this petition is whether the putting an end to the service or Mr. Dodia as a full time teacher and appointing him as a part time teacher, which are implicit in his new order of appointment which was called by Mr. Dodia as the order of reduction in rank, is legal or not. Whatever designation we may attach to this order, on its analysis its turns to be an order putting an end to his full time employment and appointing him as a part time teacher. Whether the word 'termination' has been employed or not is immaterial. The effect of the order for all practical purposes is the termination of that particular bond of relationship between the Management on the one hand and Mr. Dodia on the other substituted by a new bond with new corresponding rights and liabilities.

4. Mr. J.M. Patel, the learned advocate for the Petitioners, however, urged that Regulation 33 in its turn refers to termination in accordance with the provisions of Section 36 of the Gujarat Secondary Education Act, 1972, and Mr. Patel submits that the said Section deals only with dismissal, removal or reduction in rank, which is penal in character. It is difficult to accept the submission of Mr. Patel for the simple reason that Section 36(1) not only deals with dismissal, removal or reduction in rank, but it also deals with the termination of service otherwise. Despite the reference of Section 36(1) in the Regulation 33 quoted above, P.D. Desai J., of this Court has laid down in the Special Civil Application No. 1796/ 75 decided on 2-8-1976 that compensation under Regulation 33 is not admissible to an employee whose services have been terminated as a result of some penal action taken against him. The net outcome therefore would be that any case of termination on severence of the bond either wholly or partly would attract the operation of Regulation 33 and would entitle the teacher to compensation workable as per the guidelines laid down in Clauses (a) and (b) of Regulation 33(1).

5. There is a logical reason also behind the above interpretation. If what Mr. Patel submits is accepted, it would lead us to incongruous result in some hypothetical case which could not have been within the contemplation of the legislative authority. Suppose this very Mr. Dodia who come to function as a part-time teacher in July, 1975 came to be relieved or retrenched because of the reduction in the number of classes, what compensation would he be entitled to? At this stage, obviously the Management would insist that he being a part-time teacher his compensation would be required to be worked out on the basis of his emoluments at the time of termination and this could well be argued with justification by the Management. If what Mr. Patel has contended is to be accepted, it would mean that Mr. Dodia would get comparatively less compensation in the final event despite losing the full employment, of course in two stages. The idea of compensation is to furnish the employee concerned with some monetary provision to fail back upon during the period he is out of employment. In the cases of retrenchment, whole or partial, the principle of compensation would remain the same. The phrase 'otherwise terminated' occurring in Section 36(1) had come up before this Court for its interpretation. The argument similar to the one advanced by Mr. Patel in this petition had come to be advanced in that case of Chhaganbhai P. Oza v. The Ahmedabad Jesuit Schools Society and Ors., reported in 19 G.L.R. page 347. It was contended on behalf of the Management that the expression 'otherwise terminated' should be construed as referable to termination by way of disciplinary measure or penal act. Negativing that argument, M.P. Thakkar J., was pleased to hold as follows:

Be that as it may, in the face of the clear language of Sub-section (1) of Section 36 it is futile to contend that the provision is not applicable to cases of termination simplicitor. In fact the respondents themselves accepted the position that Sub-section (1) of Section 36 was applicable and did serve the petitioner with a notice to show cause why his services should not be terminated. It is therefore not possible to accede to the argument that Section 36(1) does not apply to the case of a teacher whose services have been terminated otherwise then by way of a penal action.

6. The Division Bench of this Court consisting of the Chief Justice Divan as the senior member decided on 25th July, 1979, confirmed the view of P.D. Desai J. in the aforesaid Special Civil Application No. 652/79 P.D. Desai J., in that Special Civil Application had inter alia observed as follows:

Section 36(1) takes within its sweep not only case of dismissal or removal or reduction in rank but also cases of termination otherwise. Therefore, even in cases of termination simpliciter, it would be necessary to follow not only the terms of the contract but also the provisions of Section 36(1). It is not in dispute that in the present case no formal action whatsoever was taken terminating the services of the first respondent, much less was the procedure laid down in Section 36(1) followed....

In the above view of the matter, it is inevitable to hold that Regulation 33 would be attracted in the cases of termination of service where termination is otherwise in terms of Section 36(1). As elaborated by me above, partial termination is also termination and analogy of contractual relationship can't be invoked to avoid the necessary implications of a beneficial legislation like the Gujarat Secondary Education Act. The Tribunal, therefore, was absolutely right in holding that the second order of appointment, which is termed as the order of reduction in rank was by necessary implication preceded by an order of termination of the earlier contract of full time employment.

There is one additional argument in support of the interpretation placed by me. Regulation 26(4) speaks of pension and in the case of part time service the commencement of the part time service is taken as the basis for working out the pension. This also would show that the scheme of the Regulation is there to view the two types of employments as distinct with distinct incidents.

7. Mr. Patel had advanced one argument referring to certain factual developments later on. He submitted that this petitioner after the alleged reduction in rank as a part time teacher had also got employment elsewhere as a part-time teacher and there was therefore no case for compensation. It is a fortuitous circumstance that Mr. Dodia could get an employment elsewhere, perhaps after some duration. Compensation is provided for the purpose of enabling him to keep himself above shoulders in the days of purpose of enabling him to keep himself above shoulders in the days of distress and subsequent employment and therefore no longer need of compensation cannot be retroactively examined so as to deprive Mr. Dodia of the compensation. Even in the Industrial law where compensation is provided for, the employee's subsequent employment doesn't retroactively take him away from the statutory benefit earned by him.

In the above view of the matter, there is little merit in this petition which is hereby rejected, with no order as to costs. It goes without saying that the undertaking filed by Mr. Dodia in this Court at the time of passing of the interim order would stand annulled.


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