Bharushea, J.:— The third respondent is the Mohammed Haji Saboo Siddik Institution, which is a public charitable trust. It runs a technical high school, a polytechnic and trade and certificate courses. The fourth respondent is the Anjuman-I-Islam which is incorporated under the Indian Companies Act, 1913, and is also registered as a public charitable trust. It is responsible for the management and administration of the third respondent.
2. It is the petitioner's case that on 1 April 1958, he was employed by the third respondent as an accounts clerk. The petitioner worked with the third respondent until 6 March 1980. On 6 March 1950, his services were temporarily transferred by the third respondent to the fourth respondent. From 10 March 1980 to 22 June 1982, he worked with the fourth respondent in a temporary capacity. On 22 June 1982, the fourth respondent issued to the petitioner a letter stating that his services had been permanently transferred by the third respondent to the fourth respondent. The petitioner made representations there against but to no avail.
3. On 4 January 1983, the petitioner was served with a notice by the respondent asking him to show cause why disciplinary action should not be taken against him for insubordination, etc. On 25 January 1983, the petitioner replied showing cause.
4. On 29 January 1913, the petitioner filed a suit in the City Civil Court at Bombay (being Suit No. 618 of 1983) challenging the order by which his services had been transferred to the fourth respondent. Apprehending the termination of his services forthwith, he made an ad interim application in the suit to restrain such termination. An ad interim order was refused. On 1 February 1983, the petitioner served the notice of motion upon third and fourth respondents.
5. On 3 February 1983, the petitioner's services were forthwith terminated by the fourth respondent.
6. On 14 March 1983, when the notice of motion reached hearing, a preliminary objection was raised on behalf of the third and fourth respondents. It was submitted that inasmuch as the petitioner's services had been terminated, the jurisdiction in that behalf lay not with the City Civil Court but with the School Tribunal. The contention was upheld and the notice of motion was dismissed. The Court, however, directed that charge of the post that the petitioner held should not be taken from him for a period of thirty days to enable him to approach the School Tribunal by way of appeal.
7. The petitioner's suit in the City Civil Court is still pending.
8. In the appeal which was filed by the petitioner before the School Tribunal an order wag passed on 3 March 1984. The appeal was allowed and the matter was “remanded back to the respondents for holding a fair enquiry” after complying with the necessary formalities and rules.
9. On 16 March 1984, the petitioner wrote to the third and fourth respondents recording the substance of the order of 3 March 1984. He asked to be allowed to resume service and for payment of arrears of salary. There being no response the petitioner wrote a remainder on 21 April 1984.
10. On 23 April 1984, a writ petition filed by the third and fourth respondents before this Court impuging the order of the School Tribunal, dated 3 March 1984. was rejected in limine. On 10 December 1984, a petition for special leave to appeal against that order was rejected by the Supreme Court.
11. In the meantime, the petitioner had filed before the School Tribunal a miscellaneous application under S. 11(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (Hereinafter called the said Act). Sub-section (3) reads thus:
“It shall be lawful for the Tribunal to recommend to the State Government that any dues directed by it to be paid to the employee, or in case of an order to reinstate the employee any emoluments to be paid to the employee till he is reinstated, may be deducted from the grant due and payable, or that may become due and payable in future, to the management and be paid to the employee direct.”
12. The School Tribunal passed an order on the application on 19 January 1985. This order is impugned in this petition. The School Tribunal found it clear from the provisions of the said Act that it did not provide any means for executing an order passed under S. 11(2) of the said Act. [Section 11(2) is the provision whereby the School Tribunal is empowered to set aside an order of dismissal, removal or other termination of service or reduction in bank and to reinstate an employee and give him arrears of salary, etc.) The School Tribunal referred to S. 13(1) which provided for a penalty to be imposed upon a school's management for failure to comply with the School Tribunal's direction. It appeared to the School Tribunal therefrom that non-compliance of its directions was an offence punishable with fine. But there was no remedy given to an aggrieved party to compel a school's management to carry out the School Tribunal's directions. Section 11, Sub-sec. (3) had to be exercised only at the time of passing the order on the appeal. Since, in the order of the School Tribunal, dated 3 March 1984, directions under 3. 11(3) had not been given, the question of issuing directions at a later stage did not arise. Besides, the order of 3 March 1981, did not give any direction to the third or fourth respondents to reinstate the petitioner or to pay him back-wages. Therefore, the question of asking the third and fourth respondents to pay him arrears of salary did not arise nor the question of recommending to the State Government the deduction of those arrears of salary.
13. We must express our dismay at both orders of the School Tribunal.
14. It is regrettable that in the order, dated 3 March 1984, it was not spelt out that the order of termination of the petitioner's services was set aside and the third and fourth respondents were not in terms directed to reinstate the petitioner and pay him lull back-wages and other emoluments. Having regard to the petitioner's appeal to the School Tribunal and the order that it passed, however, there is no question but that, by implication, this was what was ordered. When the respondents were directed to hold an enquiry, the order of termination passed without the holding of an enquiry was in fact set aside. The petitioner then remained in the service of the thud and fourth respondents and was entitled to all arrears of salary and other emoluments up to that date.
15. Since no enquiry has yet been held the petitioner remains in the service of the third and fourth respondents and is entitled to receive from them all arrears of salary and other emoluments up-to-date.
16. The School Tribunal erred in holding in the impugned order that there is no provision in the said Act in regard to the execution of its orders. The provision is in S. 11(3). Thereunder the School Tribunal is empowered to recommend to the State Government that any dues directed by it to be paid to an employee be deducted from the grant due and payable or to become due and payable to a school's management and be paid directly to the employee, The State Government would ordinarily be expected to head and comply with such recommendation. The remedy provided by S. 11(3) is, therefore, as effective as that of more unorthodox execution. It is an independent remedy and is not to be exercised only at the time when an order is made under S. 11(2). It would ordinarily be exercised upon the employee's application pointing out the failure of the school's management to comply with an order of the School Tribunal directing payment to him.
17. In the circumstances of this case, the School Tribunal ought to have exercised its powers under S. 11(3) of the said Act upon the petitioner's application.
18. The order of the School Tribunal, dated 19 January 1985, is quashed and set aside.
19. The third and fourth respondents shall forthwith reinstate the petitioner to the post that he had held.
20. The third and fourth respondents shall within a period of six weeks from today deposit in Court all arrears of the petitioner's salary and other emoluments commencing from 3 February 1983 up-to-date. In making such deposit the third and fourth respondents shall be entitled to credit for the sum of Rs. 18,135 already deposited pursuant to this Court's order, dated 19 November 1985. The petitioner shall be entitled to withdraw from Court the said sum of Rs. 18,155 and such other deposit as is thereafter made by the third and fourth respondents.
21. The petitioner has tendered a statement of detailed calculations of his dues up to July 1986. The total amount shown as due to him is Rs. 77,516.95. Of this Rs. 18,135 are already deposited. In the event, that the third and fourth respondents fail to deposit in Court an amount of at least Rs. 33,000 within the period of six weeks from today, the first respondent is directed to deduct the amount of Rs. 55,000 from the great due and payable or to become due and payable in future to the third respondent and/or the fourth respondent and pay such amount to the petitioner directly.
22. The aforesaid order is without prejudice to the rights and contentions of the parties in the petitioner's suit in the City Civil Court at Bombay in regard to the validity of the transfer of the petitioner's services from the third to the fourth respondent.
23. The third and fourth respondents shall pay to the petitioner the costs of the petition.
24. Rule absolute accordingly.