Mercy Joy Kalathipadi and Sally Jacob v. Central Board of Secondary Education (CBSE) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **WEDNESDAY, THE 11TH DAY OF OCTOBER 2017/19TH ASWINA, 1939** ## **WP(C).No. 19117 of 2010 (L)** ## **----------------------------** **PETITIONERS :** **--------------------** **1. MERCY JOY KALATHIPADI, VADAVATHOOR P.O.,, KOTTAYAM.** **2. SALLY JACOB, KANJIRATHILMOOTTIL HOUSE, KALATHIPADI, VADAVATHOOR P.O.,, KOTTAYAM.** ## **BY ADV. SRI.BECHU KURIAN THOMAS** **RESPONDENTS :** **-----------------------** **1. THE SECRETARY CENTRAL BOARD OF SECONDARY EDUCATION, NEW DELHI.** **2. THE SECRETARY AND CORRESPONDENT, T.T. EDUCATIONAL TRUST, ST.MARY'S SCHOOL AND COLLEGE, PERAMOOR, MADRAS - 11.** **3. THE PRINCIPAL, MAHAN JUNIOR COLLEGE, KALATHIPADI, KOTTAYAM., THIRUVANANTHAPURAM - 15.** **4. DISTRICT LABOUR OFFICER, KOTTAYAM.** ## **R2 & R3 BY ADV. SRI. GEORGE POONTHOTTAM BY ADV. SMT. NISHA GEORGE BY K M ANEESH R4 BY GOVERNMENT PLEADER SMT. PRINCY XEVIER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 19117 of 2010 (L)** **--------------------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **----------------------------------** |**P1:**|**COPY OF THE NOMINATION FORM OF THE ST PETITIONER FOR**| |---|---| ||**THE EMPLOYEES PROVIDENT FUND SCHEME.**| |**P1(a):**|**COPY OF THE DECLARATION FORM OF THE 1ST PETITIONER'S**| ||**FAMILY PENSION SCHEME.**| |**P1(b):**|**COPY OF THE ANNUAL STATEMENT OF ACCOUNT OF THE**| ||**EMPLOYEES PROVIDENT FUND SCHEME OF THE 1ST**| ||**PETITIONER FOR THE YEAR 1992-93 AND 1994-95.**| |**P2:**|**COPY OF THE CERTIFICATE ISSUED BY THE R3 DT 25/4/1990 IN**| ||**RESPECT OF THE 1ST PETITIONER.**| |**P3:**|**COPY OF THE CERTIFICATE ISSUED BY THE PRINCIPAL DT**| ||**11/8/1996 REFERRING TO THE 1ST PETITIONER'S PERIOD OF**| ||**SERVICE.**| |**P4:**|**COPY OF THE ORDER OF TERMINATION DT 27/11/1996 ISSUED**| ||**BY THE R2 TO THE 1ST PETITIONER.**| |**P5:**|**COPY OF THE ORDER OF TERMINATION DT 27/11/1996 ISSUED**| ||**BY THE R2 TO THE 2ND PETITIONER.**| |**P6:**|**COPY OF THE JUDGMENT DT 7/10/2008 IN OP NO. 12416/1997.**| |**P7:**|**COPY OF THE COMPLAINT DT 7/2/2009SUBMITTED BY THE**| ||**PETITIONERS TO THE R1.**| |**P8:**|**COPY OF THE OFFICE COMMUNICATION NUMBERED AS**| ||**CBSE/HQ/LEGAL/F-901/2009 DT 23/5/2009 ISSUED BY THE R1 TO**| ||**THE R3.**| |**P9:**|**COPY OF THE REPLY DT 1/6/2009 ISSUED BY THE R3.**| |**P9(a):**|**COPY OF THE LETTER DT 3/6/2009 ISSUED BYT HE R3 TO**| ||**THE R1.**| |**P10:**|**COPY OF THE LETTER NO.CBSE/HQ/LEGAL/F-901 DT 6/8/2009.\**| **WP(C).No. 19117 of 2010 (L) --------------------------------------** |**P11:**|**COPY OF THE ORDER NUMBERED AS CBSE/HQ/LEGAL/F-**| |---|---| ||**901/1997/47 DT 20/4/2010 ISSUED BYT HE R1.**| |**P12:**|**COPY OF THE LETTER DT 5/5/2010 ISSUED TO THE 1ST**| ||**PETITIONER.**| |**P12(a):**|**COPY OF THE LETTER DT 5/5/2010 ISSUED TO THE 2ND**| ||**PETITIONER.**| |**P13:**|**COPY OF THE REPRESENTATION D T 15/6/2010 SUBMITTED BY**| ||**THE PETITIONERS BEFORE THE DISTRICT LABOUR OFFICER.**| |**RESPONDENT'S EXHIBITS**<br>**:**<br>**NIL.**|| ||**//TRUE COPY//**| ||**P.A. TO JUDGE**| **bp** ## **A. MUHAMED MUSTAQUE, J.** ------------------------------------ ## W.P. (C) No.19117 of 2010 ------------------------------------ Dated this the 11[th] day of October, 2017 ## **J U D G M E N T** The petitioners are before this Court challenging Ext.P11 order passed by the 1[st] respondent, to the extent that their claim for backwages, dues and consequential benefits was rejected and the management was given liberty to conduct _de novo_ enquiry. 2. The petitioners case is that, they are employees under the respondents 2 and 3. The petitioners were appointed as Ayah/Attender. By Exts.P4 and P5 orders, they were terminated from service, which was challenged before the Central Board of Secondary Education [for short, CBSE]. By Ext.P11 order, the petitioners were re-instated in service, but their claim for consequential benefits was rejected. The grievance projected by the petitioners before this Court is on two grounds; firstly, in the impugned order, petitioners were not given backwages. Secondly on the ground that CBSE permitted the management to conduct a _de novo_ enquiry. **W.P.(C) No.19117/2010** **2** 3. The petitioners, relying upon clause 48 of the Affiliation Bye-laws of the CBSE, would argue that the Board ought to have ordered pay and allowances on reinstatement. It is appropriate to refer clause 48 in this context. Clause 48 reads thus: ## “ **48. Payment of pay and allowances on reinstatment** : - 1) When an employee who has been dismissed, removed or compulsorily retired from service is reinstated as a result of appeal or would have been so reinstated but for his retirement on superannuation while under suspension preceeding the dismissal, removal or compulsory retirement as the case may be, the Committee shall consider and made a specific order:- - a) with regard to the salary and allowances to be paid to the employee for the period of his absence from duty including the period of suspension proceeding his dismissal, removal or compulsory retirement as the case may be; and - b) whether or not the said period shall be treated as the period spent on duty. - 2) Where the Committee is of the opinion that the employee who had been dismissed, removed or compulsorily retired from service has been fully exonerated, the employee shall be paid the full **W.P.(C) No.19117/2010** **3** salary and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired from service or suspended prior to such dismissal, removal or compulsory retirement from service, as the case may be: Provided that where the Committee is of opinion that the termination of the proceedings instituted against the employee had been delayed due to reasons directly attributable to the employee, it may, after giving a reasonable opportunity to the employee to make representation, if any, made by the employee, direct, for reasons to be recorded by it in writing, that the employee shall be paid for the period of such delay only such proportion of the salary and allowance as it may determine. 3) The payment of allowance shall be subject to all other conditions under which such allowances are admissible and the proportion of the full salary and allowances determined under the proviso to sub-rule 48(2) shall not be less than the subsistence allowance and other admissible allowances”. 4. This Court is of the view that the Board ought to have taken decision with regard to the backwages as well as the manner in which the period during which the petitioner was kept **W.P.(C) No.19117/2010** **4** out of service to be dealt with by the school management committee. Therefore, the Board has to reconsider the matter after hearing the petitioners as well as the school management committee. 5. In regard to the second point raised by the learned counsel for the petitioners, the school management committee had not obtained any reservation for conducting de nova enquiry. Therefore, the de nova enquiry could not have been ordered by the Board. It is admitted that no enquiry has been conducted for the last seven years. In fact, there was a stay in the matter as per the order dated 29.06.2010. The petitioners relied upon the judgment of the Supreme Court in _**Karnataka State Road Transport Corpn.** vs._ _**Lakshmidevamma (smt) and another**_ ((2001) 5 SCC 433) and of this Court in _**Edayar Ksheerolpadaka Sahakarana Sangham** vs._ _**Industrial Tribunal**_ (2007 (2) KLT 613) and would argue that since the management had not sought any reservation to conduct de nova enquiry, the Board could not have ordered de nova enquiry. As seen from the statement filed before the Board, the Management had not sought such reservation. The judgments relied on by the **W.P.(C) No.19117/2010** **5** petitioners are under the Industrial Disputes Act. It is to be noted that the Board interfered with the termination of the petitioners on the ground that there was no enquiry conducted. Therefore, in such circumstances, it was incumbent for the managing authority to seek such reservation. Therefore, the de nova enquiry could not have been ordered. Accordingly, that portion of the impuned order is interfered and set aside. Insofar as it relates to payment of backwages and other releated issues in terms of clause 48 of the bye-law, the Board shall reconsider the matter after notice to both parties within a period of three months. This writ petition is disposed of as above. Sd/- **A. MUHAMED MUSTAQUE JUDGE** smp