Wrongful termination back wages payment
Danish Hussain
(Querist) 04 October 2018
This query is : Resolved
My father was a teacher in a Private Unaided School. (Appointed in 1988 and terminated in 1998) He was terminated wrongfully which is now proven in the court after 20 year of legal battle. (But my father passed away a few 6 months back and could not see his victory). The case is of Patna Bihar, and is now being fought in the High Court, Patna.
(During the pendency of the case, my father was employed anywhere else.)
The School is not ready to pay 100% Back Wages and want to pay just the 50% of the back wages.
Is there any Rule/Law/Act/Judgements Supporting my claim for 100% Back Wages.
Danish Hussain
(Querist) 04 October 2018
He was not employed anywhere else***
Dr J C Vashista
(Expert) 05 October 2018
What is opinion and advise of the lawyer who have successfully contested and won the case for about 20 years ?
Generally 50% of back wages is allowed in such cases, however, it differs from case to case.
Why do you need second opinion and obligation of experts on this platform on the basis of limited information except the fact it is available FREE OF COST ?
Danish Hussain
(Querist) 05 October 2018
Thank you, sir, for your reply.
My Current Lawyer is a free lawyer and does not apply his own knowledge at all as I am not able to pay him, and he instead wants me to gather all the information and say he will just put up whatever I information I will gather.
The case in the current court is from last 1.5 years, earlier it was in Lower Education Tribunal, and before that, it was in Supreme Court which directed the organisation of tribunal and directed the case to be filed in the tribunal.
Guest
(Expert) 05 October 2018
Good excuse !! Bahut danishmand lagte ho, Mr. Danish Hussain!!
But that excuse cannot work, as you have not made any mention about his opinion, as Dr. Vsishta asked you. A question arises, was there any restriction on him not to express his opinion? Secondly, when he does not apply his own knowledge, how he could have fought your father's case continuously for 20 years up to the level of Supreme Court to get direction for the tribunal?
If he used your own gathered information, you could have been more intelligent than your lawyer and your father would have been much more intelligent than you also. Both of you could have gathered information locally from various lawyers of your own city, instead of appearing over here with your query. Apparently, you must also have gathered tons of rules, law, Acts and judgments during the last 20 years (1998 to 2018). So, why is a need for more waste papers?
However, a 3rd very crucial question arises, from whom you gathered rules, law, Acts and judgments during the last 20 years, when you got yourself registered at the LCI only yesterday and did not come forward with any query during the last 20 years? So, how all of a sudden, after lapse of more than 20 years, you could feel the need of help from the experts registered at the LCI?
You belong to Delhi, there are several lower courts, tribunals, labour courts, one High Court and the Supreme Court also situated and thousands of lawyers are available in different such courts to take help of gathering your needed information and documents. You must also have been in interaction with several of the talented lawyers in High Court as well as Supreme Court for the last 20 years. So, it not is surprising, you preferred to take help of experts at LCI, of whom you do not know much about their worth?
ON THE WHOLE, YOUR RESPONSE TO THE QUERY OF Dr. VASISHTA IS FOUND TO BE FANTASTIC ONE !
Danish Hussain
(Querist) 05 October 2018
Sir, I am a 19-Year-old guy, who has got into this case from last 6 months, after the death of my father, and earlier my father was looking after the case and I had no clue till then.
My advocate, whose name is Mr Saroj kumar, is fighting this case from last 3 months(we had to change lawyer as we can not bare the lawyer's fees anymore due to financial illness after the demise of my father).
My lawyer's Opinion: He doesn't really care, and says it on our face to take away this case as he really doesn't want to fight as we are not able to pay him. He says"Jo karna hai aapko aap karo, mai bas jo lao ge bana ke usko court ke aage rakh dunga, baki court decide karega" these are his actual words. He doesn't want to put in his own efforts.
I wish my mother has been to several lawyers in the city, but all of them want their hourly fees which I can't bear, and then I searched for legal advice on google and landed on this website.
Danish Hussain
(Querist) 05 October 2018
I have prepared this to submit on the next date and I just want some judgments/was/act to back my submissions.
I, Zahida Khatoon, aged about 58 years, W/o Late Md. Zahid Hussain resident of B-34/1 Jamia Nagar, Abul Fazal Enclave - 1, South Delhi, New Delhi, 110025. do hereby solemnly affirm and state as follows:
1. That I am wife of the respondent no.1 in this case and as such am well acquainted with the facts and circumstances f this case.
2. That it is humbly submitted that husband of Respondent no.1 was an Ex-army Personnel, appointed by Petitioner as P.T.I [Physical Training Instructor] in the Year 1988 by the virtue of Appointment Order dated: 07.07.1988 in Notre Dame Academy, Munger; i.e., the Petitioner in this case, and subsequently, the Appointment of the Respondent no. 1 was confirmed as a permanent staff vide Confirming Appointment Order dated: 07/07/1989, and that never ever in the past have the Petitioner have addressed the deceased Husband of the Respondent No. 1, and Teacher of the Petitioner School as an Assistant Teacher/Physical Education Teacher, and have always addressed him as a P.T.I [Physical Training Instructor] which is the fact and is evident by the Appointment Order dated: 07/07/1989 and by the Para 9 of the Writ Petition filled by the Petitioner in this case, which is a technical job and is much higher in both post and scale than an Assistant Teacher/Physical Education Teacher, and only at the time of calculation of salary, taking the advantage of Late Md. Zahid Hussain's absence due to his sad death, with a fraud and double dealing intention, for the first time ever, they have addressed him as an Assistant Teacher /Physical Education Teacher in Para 4 and other paragraphs of the Supplementary affidavit filed by the Petitioners dated 16.05.2018 to minimize the amount payable to the sufferers. And it is relevant to mention here that in general, for appointment at a post of a P.T.I., a military experience is considered mandatory as a P.T.I. job is identical to defence/military trainings.
Photocopies of appointment order dt. 07.07.1988 and permanent confirming order dt. 07.07.1989 is being enclosed herewith and marked as Annexures - A (series)
3. That it is also submitted that upon the appointment the Respondent no.1 served the school with full loyalty and sincerity and without any complain from the side of the Petitioner which is certified by an Appreciation Letter Dated: 10th August, 1998 issued under the hand and Seal of the Petitioner for and on behalf of the Management of the Institution.
A photocopy of Appreciation Letter Dated: 10th August, 1998 is being enclosed herewith and marked as Annexures - B
4. That it is further submitted that the deceased husband of Respondent no.1 was enjoying Summer vacation of the year 1998 in Delhi, and just at the verge of return there from, by the advent of sheer black luck upon the respondent no.1, his only son Altamash Hussain @ Danish; then aged about 04 years, met with a road accident and was admitted to the Indoor Patients Ward of Safdarjung Hospital, New Delhi and remained there at from 29.06.1998 uptill 07.07.1998 in course of the treatment for his injuries.
All the relevant medical documents, O.P.D Registration Form, Dated: 29.06.1998 issued in the name of Danish Aged-04 Years , a Copy of Medical Certificate Dated: 13.04.2000 issued by one Dr. A. K. Singh, Consultant, Medical Superintendent, Safdarjung Hospital, New Delhi - 110029, a Colour Photo of X-Ray Plate vide X-Ray No. 28873 are annexed here with and marked as Annexure - C (series)
5. That the Petitioner School was scheduled to re-open after the summer vacation on 01.07.1998, but the Respondent no.1 being the only male member of his family, could not become able to join the School on the very opening day since he was attending his above named, injured, only son and was running from pillar to post for his treatment at the said Safdarjung Hospital, New Delhi and accordingly after completion of the treatment, the Respondent no.1 joined the school on 09.07.1998 whereupon on the very date, the then Principal of the Petitioner School, served Respondent no.1 the Termination Letter Dated: July 9th, without allowing the Respondent no.1 to show cause while the Principal do not have authority to remove/dismiss a service and which are not only in violation of law, but also goes against the ARTICLE 68 and ARTICLE 74 of the Bye-Laws of the Petitioner School, and the said articles says:
"68. The power of removal of service and dismissal remains with the Managing Committee. Any case of removal or dismissal must follow the rules of natural justice and conditions laid down by the Founder Society/Church."
"74. No order of discharge or dismissal shall be passed unless regular charges have been framed and communicated to the person concerned with a statement of the grounds along with certified copies of all relevant papers on which it is proposed to take action and unless he/she has been given adequate opportunity of submitting a written statement in his/her defence within a fort night of his receipt of the charges as well as of being heard in person if so desires and of examination witnesses at the enquiry"
A Photo Copy of the said bye Laws THE TERMS AND SEVICE CONDITIONS FOR THE TEACHING AND NON - TEACHING STAFF is annexed herewith as Annexure - D
6. That the Termination of the Service of the Respondent no.1 was made by the Petitioner Under the provision as enshrined under ARTICLE - 46 of the Said Bye-Laws. "46. An employee who does not return to duty, within eight days of the expiry of his originally sanctioned leave shall be deemed to have abandoned his services. On the 9th day his service will be considered terminated."
It may further be most humbly submitted that no question of any leave; far less "Sanctioned leave", arises as the Respondent no.1 had not visited to Delhi on any sort of "Leave" as alleged in the said Letter of Termination under reference rather he had gone to Delhi with his family during the Summer "Vacation" of the School.
Further, be that as it may, even if the said period of absence of the Respondent no.1, form his Service; though due to vis major, was treated as "Leave" even then Article - 23 of the said Bye - Laws of the Respondent provides for L.W.P. [Leave Without Pay]. The Very Article - 23 is being reproduced mutatis mutandis as here under:
"23. Employees are expected to be back to their place of work by the specified time after period of leave. If the total number of leave day taken exceeds the leave permissible, the employee will go without pay of those days taken in excess of leave permissible. "
Furthermore, even if the Respondents had somehow or the other overlooked the provisions as enshrined under the said Article - 23, they ought to have adhered with the provisions as enshrined under Articles - 68, 69, 70, 71, 72, 73 and 74 which interalia prescribes for power of removal and dismissal, levelling of charges and its outcome, hierarchy of the Petitioner's Society, Period of Notice, Suspension and Subsistent Allowance besides modes and manners of Discharge and Dismissal from the service, etc. etc. under Chapter XIII of the said Bye - Laws and ought not to have terminated the service of the Respondent no.1 in such callous and hyperbolic manner which itself renders the Termination of the service of Respondent no.1 illegal since not being in juxtaposition with the own Bye-Laws of the Petitioner.
7. That it is evident that the Petitioners are harassing the Respondent no.1 and his family since last 20 Years by first terminating the Service of the Respondent no.1 having no legal ground and going against both the Law and Natural Justice as well as its own Bye-Laws, and now manipulating the facts by inserting an un-applicable case in order to snatch the 50% of the back wages while the Respondent no.1 has a legal right on.
8. That the reference of the judgement and order of the Hon'ble Supreme Court in Union Of India Vs Ramchander in (2005) 9 SCC 365 where the sufferer was awarded with 50% of total back wages (i) was against Casual Labourers(mazdoors) who were appointed on daily wages and, in this case the Respondent no.1; Md Zahid Hiussain was not a Casual Labour (mazdoor), instead, was a permanent appointed staff of the Petitioner School, Notre Dame Academy, Munger which is evident by the Annexure A Series. (ii) That, that was a case of Industrial Dispute and this case is not in any relation to the Industrial Dispute and is an Educational Tribunal Case. (iii) That the Petitioner; Union Of India was directed to reinstate 50% of back wages in the light that the respondent; Ramchander must have engaged in any other employment during the pendency of the said case, and here the Respondent no.1, Late Md Zahid Hussain was not at all engaged in any other work or employment, in fact, the Respondent no.1 has already challenged the Petitioners "to Produce even a single iota of evidence showing that Respondent no.1 was in service" in the Reply Dated: 04.05.2018 to the Rejoinder filed by the petitioner Dated: 03.05.2018 in this Case and later instead of replying to the challenge posed by the Respondent no.1, the Petitioners are misleading this Hon'ble Court by trying to affix such an order of the Hon'ble Supreme Court, which only favours their evil intentions and has nothing to do with the circumstances and nature of the case and hence the reference of Judgement of the Hon'ble Supreme Court{Union Of India Vs Ramchander in (2005) 9 SCC 365}, in this case, is not fit for application.
9. That this Hon'ble Court, on 04-04-2018, had asked the petitioner's lawyer "to seek instructions on the point whether his client is ready to reinstate the respondent No. 1 with all back wages so that the court may consider the issue of awarding compensation to the respondent No.1." It is evident that the petitioners have left no stone unturned to make the situations worse for the respondent no.1, Late Md Zahid Hussain and his heirs for 19 years during his life, and now for his heirs even after his death by ignoring the terms of law as well as their own Bye-Laws and even after several instructions by this Hon'ble court, the petitioner is not ready to act according to the terms of justice and have not yet made any payment to the heirs of respondent no. 1 even after directions of this Hon'ble court as calculated by the petitioners as directed by this Hon'ble Court to first make the payments as calculated by the Petitioners. It is also relevant and very important to mention here that the petitioners are in habit of harassing poor employees in similar fashion as with respondent no.1, which is evident by the complaint filed by an employee namely Phul Devi who has filed a complaint case against the petitioners in which cognizance has been taken against the petitioner, Principal and teacher of the School u/s 323, 347, 384, 34 IPC and hence the petitioner is not fit for the exception for awarding compensation to heirs of late respondent no.1 for all the loss of livelihood and damages suffered by him and his family over 20 years which ultimately had sucked out the livelihood of the Late Respondent no. 1 and his heirs for no apparent and will full acts committed by the Late Respondent No.1. The respondent no.1 died due to monitory shortness as his family was not able to bare his medical expenses. He has three daughters and a son and all of them are awaiting their marriages and the same could not be fulfilled because of financial crisis. Their children have faced blockage in education and are illiterates and all the losses cannot be reverted all their lives. The respondent no.1 further pray to this Hon'ble Court to also penalize/punish the petitioner School adequately accordingly to the law with such a heavy punishment and penalty so that the said School or any other such institution should not dare to repeat such or similar instance of injustice and inhuman behaviour against any other poor staff like Zahid Hussain or Phul Devi in future.
10. That it most humbly submitted, that more than 20 years of Respondents No1 has been already shattered and counting even after his death, during this case, due to unjust, unlawful and callous termination by the Petitioner resulting in numerous direct losses, and hence the Respondents No.1, relying upon the Articles 73 of the Indian Contract Act, 1872, and Article VIII of Chapter 4 of The Law Of Damages under Indian Contract Act 1872, demands Punitive/Exemplary Damages, Attorney Expenses, Compensatory Damages and Other Expenses along with Full Back Wage.
11. That it is a humble submission that, as suggested by this Hon'ble court, the heirs of the respondent no.1, are ready to settle down the matter on the following terms. The Petitioner must release the arrears of salary and all monetary and service benefits for which the respondent was entitled to as a P.T. Instructor from 01.07.1998 till the time of superannuation and shall also bear simple bank interest rate @ 6% per annum till the payment made. And the total payment of the compensation as would be awarded by this Hon'ble Court.
12. That the content of this supplementary affidavit has been read over and explained to me in Hindi which I have understood and they are true to my knowledge.
13. That I have gone through the contents of the instant supplementary counter affidavit and understood the same.
14. That the statements made in paras no. ............................ are true to my knowledge and belief and the statements made in paras no. ............................... are true to information derived from the records of the case and the rest are by way of submission before the Hon'ble court .
Guest
(Expert) 05 October 2018
Better seek free legal aid by making application to the local court and change your lawyer, if he is reluctant to fight your case. The case needs a thorough study and analysis before anyone can give any opinion in the case. The case would further need to be presented very effectively before the tribunal, as no casual approach or any kind of gathered law, rule or judgment can apply aptly, unless the real background of the case along with its nature, characteristics and the violation of law on the part of the school authorities is understood properly.
Danish Hussain
(Querist) 05 October 2018
Thank you, sir, for the suggestion. The Judge, on one hand, is in our favor, but on the other side, want to dispose of this case as soon as possible, and hence is reluctant to provide any further time, and has given the last opportunity which is dated 10 October to put up our side on both the salary and compensation.
P. Venu
(Expert) 05 October 2018
The Order/Judgment reinstating your father in service would have laid down directions as to the payment of back-wages. Have you gone through the Judgment?
Guest
(Expert) 05 October 2018
Nothing can be achieved within such a short period of the remaining 5 days from today till the date of final hearing of 10 Oct, unless your lawyer makes a very serious attempt.
Danish Hussain
(Querist) 05 October 2018
If you could just have a look at the rejoinder or the I.A, I don't know what to call it, that I have made, and tell me if the same is fit to be submitted, and if needs any addition or correction. I will be grateful. If I had money, I would have gone to any lawyer around me, but I am just a English student at jmi Delhi, I really wish I could hire a great lawyer.
Danish Hussain
(Querist) 05 October 2018
The judgment Yes, I have gone through the Judgement of the Tribunal Court, where we won this case in 2016, and the court directed the school to reinstate the service (as he was then alive) with all back wages with 6% bank interest and Rs. 5 Lacs Damages was awarded.
But later they appealed in high court and the case is now in high court.
Guest
(Expert) 05 October 2018
Simply raise one pertinent question on what ground the school wants to justify to pay only 50% of the due wages instead of full wages and after their justification request the chairperson of the tribunal to allow you time to make a deep review of the justification given by the school authorities and revert back to the tribunal with your reply.
.
Guest
(Expert) 05 October 2018
The judgment was very clear. You could have file a case of contempt of court against the school authorities, which would have compelled them to pay the wages as well as compensation.
Danish Hussain
(Querist) 05 October 2018
For 50% School has applied judgement and order of the Hon'ble Supreme Court in Union Of India Vs Ramchander in (2005) 9 SCC 365
8. That the reference of the judgement and order of the Hon'ble Supreme Court in Union Of India Vs Ramchander in (2005) 9 SCC 365 where the sufferer was awarded with 50% of total back wages (i) was against Casual Labourers(mazdoors) who were appointed on daily wages and, in this case the Respondent no.1; Md Zahid Hiussain was not a Casual Labour (mazdoor), instead, was a permanent appointed staff of the Petitioner School, Notre Dame Academy, Munger which is evident by the Annexure A Series. (ii) That, that was a case of Industrial Dispute and this case is not in any relation to the Industrial Dispute and is an Educational Tribunal Case. (iii) That the Petitioner; Union Of India was directed to reinstate 50% of back wages in the light that the respondent; Ramchander must have engaged in any other employment during the pendency of the said case, and here the Respondent no.1, Late Md Zahid Hussain was not at all engaged in any other work or employment, in fact, the Respondent no.1 has already challenged the Petitioners "to Produce even a single iota of evidence showing that Respondent no.1 was in service" in the Reply Dated: 04.05.2018 to the Rejoinder filed by the petitioner Dated: 03.05.2018 in this Case (6573/2016) and later instead of replying to the challenge posed by the Respondent no.1, the Petitioners are misleading this Hon'ble Court by trying to affix such an order of the Hon'ble Supreme Court, which only favours their evil intentions and has nothing to do with the circumstances and nature of the case and hence the reference of Judgement of the Hon'ble Supreme Court{Union Of India Vs Ramchander in (2005) 9 SCC 365}, in this case, is not fit for application.
Guest
(Expert) 05 October 2018
Tribunal does not have any competence to hear appeal against the Supreme Court judgment. If wanted to refer to any judgment, they could have referred, while the case was under trial in the SC, with no justification now at the tribunal level.
Danish Hussain
(Querist) 05 October 2018
The Supreme Court, in 2015, in its judgment, directed the state of Bihar to set-up Tribunal as it didn't have Education tribunal till that time, and directed us to file a case freshly against the school in the Education Tribunal of the City.
Guest
(Expert) 05 October 2018
Now you make contradictory statement. Earlier you said that the SC given its judgment in your favour for reinstatement with full wages and compensation, whereas now mentioned that you were directed to file the case in the tribunal, newly set up on the order of the SC.
Better show all the case related documents to some local lawyer at your place, who may be expert in labour and service laws.
Danish Hussain
(Querist) 06 October 2018
No sir, I never said that Supreme Court decided in my favor, I said that Tribunal decided in our favor against which the School has appealed in the High Court.
Supree court only directed us to file the case freshly in the Tribunal and disrected the state to set-up the Education Tribunal.
Danish Hussain
(Querist) 06 October 2018
Sure, I will follow your instructions and will seek suggestion from someone better.
P. Venu
(Expert) 06 October 2018
It appears that you are much confused as to the legal elements involved in the proceedings pending in the. High Court. What is the nature of the proceedings - is it an Appeal or revision or a Writ Petition, that too under Article 227 of the Constitution? What is the case Number?
So also, when did the Tribunal give its decision? When had the School authorities approached the High Court? What are the irregularities illegalities alleged? What are the reliefs sought? Has action been taken to implead the legal heirs of your late father in the ongoing proceedings?
Danish Hussain
(Querist) 07 October 2018
It is a Writ Petitipn Filed by School against the order(which was in our favor) of the Eductaion Tribunal Dated 23.03.20216. The Case Number in High Court is 6573/2016.
The Tribunal Gave its decision on 23.03.2016.
School Authorities Approached the High Court In April 2016
Full Back Wages as per the Post and Scale of the My Father who was a Physical Training Instructor along with the damages.
Court has orally ordered the School to pay the legal heirs, but School did not follow the same. The School has submitted the 50% amount in the Account of Registrar General but wants to give the 50% amount money as the full and final amount.
P. Venu
(Expert) 07 October 2018
Bihar High Court website does not show the category as Writ Petition. What prevents you to post the complete and correct particulars. Also, what are the reliefs sought by the School authorities?
Guest
(Expert) 07 October 2018
Some self made conflicting contents of the description reveals, as if this is not a real problem, but a moot court problem.
Danish Hussain
(Querist) 08 October 2018
I apologize, Since I am not from the law and legal field, I didn't know how to actually mention a case. I am copy and pasting it from. the website of Patna High Cort:
CWJC 6573 Of 2016. Notre Dame Academy & ORS V/s Md Zahid Hussain & ANR
Thank you very much P Venu sir for understanding and for your replies.
Danish Hussain
(Querist) 08 October 2018
http://patnahighcourt.gov.in/CaseStatus.aspx?CNO=NDAxNTAwMDY1NzMyMDE2-MWe5wsPCK30%3d
P. Venu
(Expert) 08 October 2018
Has it been brought to the notice of the Court that your father is no more? First step in the proper disposal of the case is that the legal heirs of your late father should be brought on record.
Danish Hussain
(Querist) 09 October 2018
Yes, sir, it has been notified, and now my mother is the Respondent No.1 in this case.
Danish Hussain
(Querist) 09 October 2018
I am in need of help. The lawyer for the School is a very Big Lawyer, and to put strong points and my lawyer is not in much support.
I just need a few answers to the following questions with your knowledge in Law with God's Grace.
Thank you!
1) Can an Employment Bye-Laws/ Terms and Service Condition of an Employer/School be considered as a contract between the Employer and Employee?
2) Can the Indian Contract Act 1872, Article 73 be applied to this case for damages?
"73. Compensation for loss or damage caused by breach of contract.—When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. "
3) And if yes/no, what are the other laws/ judgments/acts, if any, which would support for the compensation/damages?
P. Venu
(Expert) 09 October 2018
The Tribunal has already given its decision which is at present in challenge before the High Court. What are the grounds on which it has been assailed and what are the reliefs sought. Let us not miss the woods for the trees.
