Writ Petition No.6025 of 2004

29th July, 2004

Petitioner Counsel: Mr. S. J. PANICKER
Respondent Counsel: Mr. MIHIR DESAI,Mr. M. H. SOLKAR

Cases Cited:
Children's Educational Uplift Society Vs. Narayan H. Sukheja, W. P. No.463/1983 Dt.12-8-1987 [Para 5,8]
State of Punjab Vs. Dr. Harbhajan Singh Greasy, (1996)9 SCC 322 [Para 5,9]

JUDGMENT

JUDGMENT :- Heard Counsel for the parties.

2. Rule. Rule made returnable forthwith, by consent. Mr. Desai waives notice for Respondent No.1. Mr. Solkar, A.G.P. waives notice for Respondents No. 2 and 3.

3. As short question is involved, the matter is heard for final disposal forthwith, by consent.

4. The Respondent No.1 was employed as Head Master in the Petitioner School. He was issued charge-sheet in respect of certain acts of commission and omission. According to the Petitioners, the charges are of serious nature. The disciplinary proceedings were held and have finally concluded, recommending reduction of the Respondent No.1 from the post of Head Master to that of Assistant Teacher. That recommendation has been accepted by the Management and order of reduction was accordingly passed. That order was questioned before the School Tribunal by way of statutory appeal being Appeal No.6 of 1996. The Tribunal has accepted the argument canvassed on behalf of the Respondent No.1 that the enquiry was vitiated due to participation of one of the Judges as witness during the enquiry, and further observed that no fair opportunity was afforded to the Respondent No.1 during the enquiry. Accordingly, the Tribunal while allowing the appeal, passed the following order:

"1. The Appeal filed by above named Appellant bearing No.MUM/6/1996 is hereby allowed.

2. The Order dated 05/01/1996 signed by the President Shri. R. L. Singh reducing the Appellant in rank from the post of Headmaster to Asst. Teacher is hereby quashed and set aside.

3. The Respondents are hereby directed to reinstate the Appellant to his original post of Headmaster from the date of Order 05/01/1996 and to difference in emoluments and other consequential benefits as per rules.

4. Compliance shall be reported within 40 days from the date of receipt of Judgment."

5. Counsel for the Petitioners has assailed the correctness of the view taken by the Tribunal. He submits that the conclusion reached by the Tribunal cannot be sustained. He further submits that in any case, assuming that the Tribunal was justified in taking the view that there has been breach of principles of natural justice, in such a case, the Tribunal had two remedies which ought to have been resorted to, instead of setting aside the reduction order and directing reinstatement. According to the Petitioners, the Tribunal could have itself examined the charges against the Respondent No.1 on merits by affording both the parties opportunity to establish their position or otherwise, the Tribunal could have relegated the parties to the stage which has been faulted by the Tribunal, as resulting in breach of principles of natural justice. To buttress this submission, reliance is placed on the unreported decision of the Division Bench of our High Court in Writ Petition No.463 of 1983 decided on 12th August, 1987 in the case of Children's Educational Uplift Society Vs. Shri. Narayan H. Sukheja & Ors. and reported decision of the Apex Court reported in (1996)9 SCC 322 in the case of State of Punjab & Ors. Vs. Dr. Harbhajan Singh Greasy.

6. Counsel for the Respondents, on the other hand, supports the conclusion reached by the Tribunal. He, however, fairly submits that in view of the exposition in the aforesaid two decisions pressed into service on behalf of the Petitioners, it would be in the interest of justice to relegate the parties before the Tribunal instead of allowing the further enquiry to be held by the Management. He submits that the Tribunal be directed to examine the merits of the charges levelled against the Respondent No.1 by affording fair opportunity to both the sides to establish their case.

7. Having considered the rival submissions, I have no hesitation in affirming the opinion expressed by the Tribunal that the enquiry conducted by the Management is vitiated on account of breach of principles of natural justice. The Tribunal has recorded reasons to support the said opinion which, to my mind, are unexceptionable. However, there is substance in the argument canvassed on behalf of the Petitioners that assuming that the enquiry was bad on that count, the Tribunal has two options either to decide the charges itself on merits or to relegate the parties for further enquiry from the stage where the Tribunal has found fault with the fairness of the disciplinary enquiry conducted against the Respondent No.1.

8. The submission is supported by the two decisions pressed into service. The Division Bench of our High Court in the case of Children's Educational Uplift Society (Supra) in Para 5 has observed thus :

"5. However, the Tribunal has erred in setting aside the order of termination of the services and granting reinstatement only on that ground. Once the Tribunal came to the conclusion that the constitution of the committee was improper, the correct course was either to order a fresh inquiry with the constitution of a new committee, or to hold the inquiry itself into the merits of the charges, it appears that the Tribunal is not aware of its powers under the Act. Sections 10 and 11 of the Act read together give ample power to the Tribunal as are vested in the Appeal Court under the Civil Procedure Code, 1908. The Tribunal could therefore have remanded the matter for a fresh inquiry or disposed of the matter by recording the evidence itself. The failure on the part of the Tribunal to do so has resulted in an avoidable delay of about four years and has undoubtedly resulted in hardship to both the parties." (emphasis supplied)

9. Even the dictum of the Apex Court in the reported decision in the case of State of Punjab (Supra) will be useful. It has observed in Para 3 of the said decision as follows.

"3. ...... It is now a well settled law that when the enquiry was found to be faulty, it could not be proper to direct reinstatement with consequential benefits. Matter requires to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. Pending enquiry, the delinquent must be deemed to be under suspension. The consequential benefits would depend upon the result of the enquiry and order passed thereon. The High Court had committed illegality in omitting to give the said direction. ............"

10. Applying the principle enunciated in the aforesaid decisions, the appropriate course, to my mind, is to relegate the parties before the Tribunal, which in turn, will enquire into the matter on merits of the charges itself by affording fair opportunity to both the sides, including of adducing evidence as may be permissible by law on merits of the charges. The parties in the present case have no objection for adopting that course. Accordingly, this Petition succeeds. The order passed by the Tribunal is set-aside and the Appeal is restored to the file of the Tribunal for being considered afresh in the light of the observations made hereinbefore.

11. All questions with regard to the merits of the charges are left open to be decided in accordance with law.

12. Rule made absolute on the above terms. No order as to costs.

13. The Tribunal is directed to ensure that the appeal is disposed of as expeditiously as possible, preferably within six months from the receipt of writ of this Court, as the order impugned relates back to 1996.

14. All concerned to act on the zerox copy of this order, duly authenticated by the Sheristedar of this Court.

Petition allowed.