Writ Petition No.1550 of 1994

9th August, 2006

Petitioner Counsel: Shri. ANJAN DE
Respondent Counsel: Shri. D. P. THAKRE,Shri. Z. A. HAQ

Cases Cited:
State of Punjab Vs. Dr. Harbhajan Singh Greasy, (1996)9 SCC 322 [Para 4,10]
G.S.P. Mandal Vs. Jalindar, 2006(2) Mh.L.J. 748 [Para 5,9]
Bhagirathi Jena Vs. Board of Directors, O.S.F.C., (1999)3 SCC 666 [Para 5,11]
Ram Kumar Agarwal Vs. Thawar Das (Deceased through LRs.), (1999)7 SCC 303 [Para 6,12]

JUDGMENT

JUDGMENT :- By this Writ petition, petitioner No.1 - employer and petitioner No.2 - Headmaster/ Chief Executive Officer has challenged the judgment dated 4.4.1994 passed by the School Tribunal in Appeal No.75 of 1993-A holding that departmental enquiry conducted by the petitioners against present Respondent No.2 was not in accordance with law and therefore quashing and setting aside the order of termination dated 29.4.1993. The School Tribunal directed the petitioners to reinstate him with continuity and back wages.

2. It is an admitted position that though this Court has issued Rule in the matter, no interim relief was given and hence the petitioners reinstated Respondent No.2 in service. Respondent No.2, during the pendency of petition, has attained the age of superannuation and has retired on 31.3.2006.

3. I have heard Shri. De, learned counsel for the petitioners, Shri. Thakre, learned AGP for respondent No.1 and Shri. Haq, learned counsel for respondent No.2 in the above background.

4. Shri. De, learned counsel states that the School Tribunal has found that the petitioner No.2 could not have functioned as Chief Executive Officer in departmental enquiry against respondent No.2. He has invited attention to provisions of Rule 2(c) of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, (hereinafter referred to as MEPS Rules) to point out that the management is empowered to appoint any person as Chief Executive Officer. In this context, he invites attention to the resolution dated 1.9.1992 passed by the Managing Committee, appointing petitioner No.2 as Chief Executive Officer. He contends that therefore, School Tribunal was not justified in holding that the enquiry has been vitiated on that count. He further states that in view of said finding, School Tribunal has not considered the charges and evidence adduced before Enquiry Committee against Respondent No.2 on merits. It is his contention that entire application of mind by the School Tribunal is only in relation to technical requirements and as the School Tribunal has found that those technical requirements are not fulfilled, the impugned order has been passed. He, therefore, states that if the Court is satisfied that there is no technical lacuna in the matter, writ petition will have to be allowed or then it will have to be remanded back in any case for finding out whether the charges are proved. He states that the School Tribunal could not have straightway granted reinstatement to Respondent No.2. In support, he has placed reliance upon the judgment of the Hon'ble Apex Court in the case of State of Punjab Vs. Dr. Harbhajan Singh Greasy, reported at (1996)9 SCC 322. It is his argument that even if the enquiry is held to be vitiated, the management is to be given chance to prove misconduct and therefore the matter needs to be remanded back either to the departmental committee i.e. Enquiry Officer or School Tribunal i.e. Respondent No.1. He argues that as the School Tribunal has not considered the grievance in the appeal entirely, the Court should after recording appropriate finding on the arguments advanced, remand the matter back either to School Tribunal or to the employer i.e. petitioners.

5. Shri. Haq, learned counsel, on the other hand states that petitioner No.2 was not Chief Executive Officer and he has not been appointed as Chief Executive Officer. He points out that the resolution passed is in violation of Rule 36(2)(a) of MEPS Rules. He further states that in view of the Division Bench judgment of this Court in the case of G.S.P. Mandal Vs. Jalindar, 2006(2) Mh.L.J. 748, there is no question of remand of matter back to the School Tribunal to enable the petitioners to prove misconduct before the School Tribunal. He further states that as the employee has retired on 31.3.2006 after attaining the age of superannuation and as MEPS Act or MEPS Rules do not contain any provision enabling the petitioners to continue with Departmental Enquiry, even after retirement, the employer cannot continue departmental enquiry after 31.3.2006. He relies upon the judgment of the Hon'ble Apex Court in the case of Bhagirathi Jena Vs.Board of Directors, O.S.F.C., reported at (1999)3 SCC 666, to substantiate his contention. He argues that in these circumstances, departmental enquiry has lapsed and therefore the petition needs to be dismissed.

6. In reply, Shri. De, learned counsel states that the matter was pending before the Court of law and the superannuation of employee, therefore, is totally irrelevant. He relies upon the judgment of the Hon'ble Apex Court in the case of Ram Kumar Agarwal & Anr. Vs. Thawar Das (Dead) through Lrs., reported at (1999)7 SCC 303, to contend that the right of the petitioners to prove misconduct is not lost because of subsequent retirement.

7. The reliance upon resolution dated 1.9.1992 by the petitioners to demonstrate that petitioner No.2 was appointed as Chief Executive Officer and therefore the application of mind by School Tribunal in this respect is not proper, is itself not correct. The School Tribunal has considered this issue in paragraph 6 of its judgment and it has found that petitioner No.1 i.e. Respondent No.1 in appeal before it was Secretary and he was therefore Chief Executive Officer and hence he ought to have appointed National/ State Awardee Headmaster as member of Enquiry Committee. The perusal of Rule (1)(c) of the MEPS Rules, 1981, shows that the Chief Executive Officer has been defined to mean the Secretary, Trustee, Correspondent or a person by whatever name called provided such person has been empowered by Managing Committee to execute its decisions.

8. The perusal of resolution dated 1.9.1992 shows that the authorisation in favour of petitioner No.2 is only in relation to departmental enquiry against Respondent No.2. It is, therefore, clear that he is not empowered to execute decisions taken by the Management as contemplated by said rules and therefore he is not Chief Executive Officer. The provisions of Rule 36(1) of the MEPS Rules contemplate authorisation by management in favour of Chief Executive Officer. The Resolution dated 1.9.1992, therefore, is not such authorisation by the management. As has already been stated that authorisation is to be in favour of Chief Executive Officer and said authorisation cannot constitute a person authorised as Chief Executive Officer. The arguments of petitioner that by a resolution dated 1.9.1992, petitioner No.2 has been made Chief Executive Officer are therefore incorrect. The requirement of Rule 36(1) of MEPS Rules are also very specific. The Chief Executive Officer, who is already functioning, is to be authorised by the management and as such I find that no exception can be taken to findings recorded by the School Tribunal in this respect. The moment this finding is reached, it is clear that the order of School Tribunal cannot be faulted with. However, then the arguments for remand of matter either back to School Tribunal or to employer fall for consideration.

9. Shri. Haq, learned counsel for Respondent No.2 has invited attention to the Division Bench judgment of this Court in G.S.P. Mandal Vs. Jalindar (supra) to demonstrate that such remand is not possible. The perusal of said judgment clearly shows that the Division Bench has held that enquiry conducted under the provisions of the Act of 1977 is not in any way akin to disciplinary enquiries conducted by the employers against the employees in labour jurisprudence and therefore employer is not entitled to lead evidence/ additional evidence in appellate proceedings under Section 9 of the MEPS Act. In view of this verdict of Division Bench, it is clear that the request of the petitioners to remand the matter back to School Tribunal cannot be entertained.

10. The next argument is to remand the matter back to employer. The learned counsel for the petitioner has relied upon the judgment in State of Punjab Vs. Dr. Harbhajan Singh Greasy (supra). The perusal of that judgment reveals that the Hon'ble Apex Court has found that in matters where departmental enquiry is found to be vitiated, relief of reinstatement should not be granted straightway and proper course is to remit the matter back for fresh enquiry from the stage the fault or error is committed by the management and to treat the delinquent employee to be under deemed suspension during such enquiry. A perusal of said judgment leaves no manner of doubt that right of employer to continue with departmental enquiry after the employee has superannuated was not forming subject matter of scrutiny there and therefore the issue is not considered by the Hon'ble Apex Court.

11. The judgment on which learned counsel for Respondent No.2 has placed reliance i.e. Bhagirathi Jena Vs. Board of Directors, O.S.F.C. (supra) clearly considers this situation. It has been held that after retirement of employee, the departmental enquiry lapses if there is no specific provision for its continuation after retirement of such employee. In the facts of that case the departmental proceedings were initiated against the appellant before the Hon'ble Apex Court under Regulation 44 of the Orissa Financial State Corporation Staff Regulations, 1975, and charge-sheet was served upon him on 22.7.1992. The enquiry could not be completed against him till his retirement which took place on 30.6.1995. He was relieved on 1.7.1995 by the employer Corporation by expressly noting that it was without prejudice to the claims of the Corporation. The Hon'ble Apex Court in paragraphs 6 & 7 of the judgment has noted that there was no specific provision in said Regulation of 1975 for deducting any amount from the provident fund consequent to any misconduct determined in departmental enquiry; there was no provision for continuance of departmental enquiry after superannuation. The Hon'ble Apex Court has, therefore, held that Respondent - Corporation had no legal authority to make any reduction in the appellant's retiral benefits. It has been held that after retirement of employee/ appellant on superannuation, there was no authority vested in Corporation for continting departmental enquiry even for the purposes of imposing any reduction in retiral benefits payable to the appellant.

12. The learned counsel for the petitioners has invited attention to other judgment of the Hon'ble Apex Court in Ram Kumar Agarwal & Anr. Vs. Thawar Das (Dead) through Lrs. (supra). He has contended that as mentioned and observed by the Hon'ble Apex Court therein, the right of employer in this respect must be deemed to have continued and protected because of pending matter. The perusal of said judgment clearly shows that there the Hon'ble Apex Court has considered right of appellant to prosecute his appeal under Civil Procedure Code though the decree was executed. It appears that through appeal was filed, the appellant could not succeed in getting stay orders and hence the decree holder executed decree and in this background the grievance has been examined. It is clear that the Hon'ble Apex Court has considered statutory right conferred by Section 96 and 100 of Civil Procedure Code and has held that merely because the decree is executed, the said right is not taken away because the lis continued.

13. In the facts of present case, position is otherwise. The provisions of MEPS Act or MEPS Rules do not enable employer to continue with departmental enquiry after superannuation of employee. Therefore, it is obvious that prayer for remand of matter back to employer also cannot be entertained. In these circumstances, I find that no case is made out for interference in writ jurisdiction. Writ Petition is dismissed accordingly. Rule is discharged. No order as to costs.

Petition dismissed.