Closure Of Hostel Mess During Covid-19 Didn't Scrap Post: Rajasthan HC Orders Private School To Reinstate Workers Terminated Without Process

The Rajasthan High Court directed reinstatement of hostel-mess workers of Bharatiya Vidya Bhawan Vidyashram school–run by the Bharatiya Vidya Bhawan educational trust–who were terminated without following the prescribed procedure, ruling that a decision to close the hostel mess did not amount to abolition of the post. In doing so the court underscored that procedure as per Section 18 of the Rajasthan Non- Government Educational Institutions Act, 1989 was applicable which was not followed in the present case as a termination order of an employee of a recognized institution can be passed only after holding departmental enquiry and with prior permission of Director of Education. The court however said reinstatement of the employees would not necessarily resulted in payment of 50% back wages as sought by them. It thus said that in the present case the employees could not prove that they remained unemployed during the period of their termination from serviceJustice Anoop Kumar Dhand in his order said: "Perusal of the aforesaid proceedings of the petitioner management nowhere indicates that the post held by the respondent No.1 was abolished. Looking to the spread of COVID19 Pandemic and looking to the fact that the students left the hostel, a decision was taken to close the hostel and mess and the staff posted there was relieved. A decision of closure of hostel mess by the petitioner-management does not amount to abolition of the post held by the respondent No.1. It is worthwhile to mention here that perusal of the regularization/appointment order of the respondents indicates that he was appointed as Class-IV employees in the petitioner-school and not in the hostel mess. It appears that for managing the affairs of the hostel & mess facility, the services of the respondents were taken and they were relieved vide impugned order dated 08.03.2021. Even, the impugned order dated 08.03.2021 is silent in this regard that due to abolition of the post held by the respondents, they were relieved from the post of Class-IV employees. Hence, it is clear that the petitioner-management has relieved the respondents in order to discontinue their services on the post of Class-IV employee. Such an order passed by the petitioner-management amounts to removal/dismissal of the respondents and the provisions contained under Section 18 of the Act of 1989 and Rule 39 of the Rules of 1993 were not followed before passing the order dated 08.03.2021". Justice Dhand thereafter observed that reinstatement did not necessarily resulted in payment of back wages which was a discretionary power that was exercised based on factual scenario. "Though it is the case of the respondents-employees that they joined their services in petitioner-school, but they were not allowed to work. Be that as it may, they have not produced any material on the record that they remained unemployed during the period of their termination from service, hence, no case is made out for grant of 50% back-wages to them for the aforesaid period i.e. from the date of termination of service till their joining. The principle and theory of 'No work no pay' is applicable to the facts and circumstances of the present case. Hence, the direction issued by the Tribunal for payment of 50% pay is not tenable in the eyes of law and is liable to be quashed and setaside. The respondents would be entitled for actual monetary benefits with effect from the date of joining their services and they would be entitled for notional benefits, as if their services were not terminated and they would further be entitled for consequential benefits with effect from the date of order passed by the Tribunal," the court added.BackgroundThe Court was hearing a bunch of petitions filed by the Petitioner management of the school challenging the order of the Rajasthan Non-Government Educational Institutions Tribunal wherein the termination order of one of the employees was set aside.It was the case of the petitioner, that the respondent was engaged on the post of Class-IV employees in the hostel mess of the petitioner. However, when the Covid hit, it was decided in a meeting to close the mess. Thereafter, the post of the mess staff was abolished, and the services of the respondents were discontinued. Hence, section 18 of the Act was not applicable in this situation since there was no order of dismissal or removal of the respondent, instead the post upon which he was working was discontinued. After hearing the contentions, the Court referred to the Supreme Court cases of Raj Kumar v Director of Education as well as Gajanand Sharma v. Adarsh Shiksha Parishad Samiti & Others to observe that,“…the position of law is clear that an order of termination/ removal of any employee of a recognized institution can be passed only after holding departmental enquiry/ proceedings and with prior permission of Director of Education, as per the provisions of Section 18 of the Act of 1989 and no contrary view has been taken in this...

Closure Of Hostel Mess During Covid-19 Didn't Scrap Post: Rajasthan HC Orders Private School To Reinstate Workers Terminated Without Process

Nupur Agrawal

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