Writ Petition No.7266 of 2014

17th April, 2015.

Petitioner Counsel: Shri S.J. KADU
Respondent Counsel: Shri N.R. PATIL, Shri M.Y. WADODKAR

Cases Cited:
Gopal Damduji Shelwatkar Vs. Gramin Uddhar Society, Kamptee and Anr., 2000(3) ALL MR 223=2000(2) Mh.L.J. 786 [Para 5,7,12]
Vidya Vikas Mandal & Anr. Vs. The Education Officer & Anr., 2007(2) ALL MR 461 (S.C.)=(2007) 11 SCC 352 [Para 5,7,12]
Yoginath D. Bagde Vs. State of Maharashtra and Anr., 2000(1) ALL MR 223 (S.C.)=(1999) 7 SCC 739 [Para 6]
Shah Babu Education Society, Patur and another Vs. Presiding Officer, School Tribunal Amravati and Aurangabad Divisions, Aurangabad and Anr., 2007(3) ALL MR 199=2006(6) Mh.L.J. 547 [Para 6]
Anant R. Kulkarni Vs. Y.P. Education Society and Ors., 2013(3) ALL MR 952 (S.C.)=(2013) 6 SCC 515 [Para 11,13]
Chandraprabha Prabhakar Ghorpade Vs. Maruti alias Marutrao Shivram Patil, 2008(6) ALL MR 193 [Para 13]
Jasmer Singh Vs. State of Haryana & Anr., 2015(1) SCALE 360 [Para 16]

JUDGMENT

JUDGMENT :- Heard Shri S.J. Kadu, the learned advocate for the petitioner, Shri N.R. Patil, the learned A.G.P. for the respondent no.1 and Shri M.Y. Wadodkar, the learned advocate for the respondents 2 and 3.

2. Rule. Rule is made returnable forthwith.

3. The petitioner has filed this writ petition challenging the order passed by the School Tribunal dismissing the appeal filed by him and maintaining the order issued by the respondent/Management terminating his services.

4. The petitioner was appointed as an Assistant Teacher in the school administered by the respondent no.2/Society in 1971. In 1979, the services of the petitioner were terminated, however, the order of termination was set aside by the Competent Authority and the petitioner was reinstated in service. In 1980, the services of the petitioner were again terminated and this termination order was also set aside by the Competent Authority. The respondent no.2/Society had challenged the order passed by the Competent Authority in appeal before the Director of Education which came to be dismissed. The petitioner continued in school administered by the respondent no.2/Society. There is no dispute about the fact that the appointment of the petitioner was made after following the due procedure. The appointment of the petitioner was approved by the Education Officer.

On 1st July, 2003 the petitioner came to be promoted as the Headmaster of the school and the Education Officer by the communication dated 5th November, 2004 approved the promotion of the petitioner.

The services of the petitioner came to be terminated by the order dated 28th March, 2007, after conducting the enquiry. The petitioner had challenged the termination order before the School Tribunal by filing appeal which came to be dismissed by the impugned order. The petitioner being aggrieved by the order passed by the School Tribunal upholding the termination order, has filed this writ petition.

5. Shri Kadu, the learned advocate for the petitioner has raised various contentions. It is submitted that the respondent no.2/Society had passed the resolution dated 9th November, 2006 to conduct enquiry against the petitioner through the enquiry committee as per the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as "Rules of 1981"). It is submitted that by this resolution Smt. Kundatai Vijaykar the President of the respondent no.2/Society was nominated as the Member of the enquiry committee and also as the Convenor of the enquiry committee. Relying on the provisions of Rule 36(5) of the Rules of 1981, Shri Kadu, the learned advocate submitted that the President of the respondent no.2/Society could not have acted in dual capacity i.e. as the Convenor and as the member of the enquiry committee and it is a substantial defect in conducting the enquiry which vitiates the enquiry. It is submitted that the charge-sheet given to the petitioner was prepared by the Chief Executive Officer which is again in violation of the provisions of Rule 37(1) of the Rules of 1981 which requires that the charge-sheet in the case of enquiry proposed against the Headmaster of the school is required to be prepared by the Management. The learned advocate has relied on the judgment given in the case of Gopal Damduji Shelwatkar V/s. Gramin Uddhar Society, Kamptee and another reported in 2000(2) Mh.L.J. 786 : [2000(3) ALL MR 223] to support the above contention. It is submitted that the charge-sheet should have been sent to the petitioner by the President of the respondent no.2/Society, however, it is sent by the Chief Executive Officer. To substantiate the submission that this defect is a substantive defect, the learned advocate has relied on the principle that if law requires a thing to be done in a particular manner, it should be done in that manner only.

The learned advocate has submitted that two members of the enquiry committee i.e. President of the respondent no.2/Society and the State Awardee Teacher submitted their report on 20th March, 2007 and the third member of the enquiry committee i.e. nominee of the petitioner submitted his report on 22nd March, 2007. It is submitted that the provisions of Rule 37(6) of the Rules of 1981 do not permit the submission of two different reports and all the three members are required to submit a combined report though they may express different opinions and may make different recommendations. In support of this submission, the learned advocate has relied on the judgment given by the Hon'ble Supreme Court in the case of Vidya Vikas Mandal & Anr. V/s. The Education Officer & Anr. reported in (2007) 11 SCC 352 : [2007(2) ALL MR 461 (S.C.)].

6. Shri Kadu, the learned advocate has submitted that after the members of the committee submitted their reports to the Management, the petitioner was given the opportunity to give his reply, however, Management has not given hearing before taking the decision. The submission is that the Management has violated the principles of natural justice by taking decision to terminate the services of the petitioner without granting any hearing and this is not acceptable in law. In support of this submission, the reliance is placed on the judgment given by the Hon'ble Supreme Court in the case of Yoginath D. Bagde V/s. State of Maharashtra and another reported in (1999) 7 SCC 739 : [2000(1) ALL MR 223 (S.C.)].

It is submitted that the enquiry conducted against the petitioner being in violation of the mandatory provisions of Rule 36 and Rule 37 of the Rules of 1981, the decision of the Management to terminate the services of the petitioner on the recommendation of two members of the enquiry committee is vitiated. The learned advocate has submitted that in such situation the matter has to go back for fresh enquiry, however, in view of the subsequent development the fresh enquiry cannot be conducted. It is the case of the petitioner that he attained the age of superannuation on 31st August, 2008 and there is no provision under the Rules of 1981 which enables the Management to continue the enquiry against the petitioner after he attained the age of superannuation. In support of this submission, Shri Kadu, the learned advocate has relied on the judgment given by this Court in the case of Shah Babu Education Society, Patur and another V/s. Presiding Officer, School Tribunal Amravati and Aurangabad Divisions, Aurangabad and another reported in 2006(6) Mh.L.J. 547 : [2007(3) ALL MR 199].

In these circumstances, it is submitted that the termination order has to be quashed and it has to be held that the petitioner continued in service till he attained the age of superannuation and the petitioner is entitled for all the monetary and consequential benefits. It is submitted that the School Tribunal has failed to appreciate these aspects and, therefore, the order passed by the School Tribunal is vitiated and it has to be set aside.

The learned advocate has made submissions about the malice of the respondent/Management in conducting the enquiry, irregularities and illegalities in conducting the enquiry and the falsity of the charges levelled against the petitioner, however, I am not considering these submissions as the petition is being disposed of on the legal submissions.

7. Shri Wadodkar, the learned advocate for the respondents 2 and 3 has submitted that the contention on behalf of the petitioner that the enquiry is vitiated right from the stage of issuance of the charge-sheet which came to be issued by the Chief Executive Officer, is not correct. The learned advocate has pointed out from the charge-sheet that it was prepared by the Management and it was sent to the petitioner by the Chief Executive Officer after being authorized by the Management. It is submitted that the provisions of Rule 36(1) of the Rules of 1981 deal with the issuance of statement of allegations and not with the issuance of the charge-sheet and the judgment given by this Court in the case of Gopal Damduji Shelwatkar V/s. Gramin Uddhar Society, Kamptee and another, [2000(3) ALL MR 223] (cited supra) also deals with this aspect. It is submitted that the statement of allegations was issued by the President of the respondent/Management and, therefore, it cannot be said that there is violation of the provisions of Rule 36(1) of the Rules of 1981. It is submitted that the petitioner had not taken the objection either with the respondent/Management or before the enquiry committee that the charge-sheet was not sent to him by the Management and therefore there was violation of the provisions of Rule 36(1) of the Rules of 1981 and the enquiry should not be proceeded further. The submission on behalf of the respondent/Management is that the failure on the part of the petitioner to raise above objection at the inception, estops the petitioner from raising this objection after the enquiry is completed and after his services are terminated.

Shri Wadodkar, the learned advocate has pointed out the charges levelled against the petitioner and has submitted that looking to the nature of the charges, it cannot be said that the punishment inflicted on the petitioner is unjust or improper.

The learned advocate for the respondent/Management has submitted that the ground raised by the petitioner that there is violation of the provisions of Rule 37(6) of the Rules of 1981 as two different reports are submitted by the members of the enquiry committee, is factually unsustainable. The learned advocate relying on the statement in the report submitted by the nominee of the petitioner which shows that the nominee of the petitioner had sought time till 23rd March, 2007 to submit his report, has argued that all the three members of the enquiry committee had assembled for taking decision as to whether the charges levelled against the petitioner are proved or not, and if proved, what punishment should be recommended. The learned advocate has submitted that all the three members of the enquiry committee had met before preparing the reports and there were deliberations amongst them which is clear from the record and, therefore, it cannot be said that the reports submitted by the members of the enquiry committee cannot be accepted and there is violation of Rule 37(6) of the Rules of 1981. It is submitted that this issue is dealt with by this Court in the judgment given in the Writ Petition No.1339/2010 in which this Court has explained the judgment given by the Hon'ble Supreme Court in the case of Vidya Vikas Mandal & Anr. V/s. The Education Officer & Anr., [2007(2) ALL MR 461 (S.C.)] (cited supra). The learned advocate has submitted that the facts on the record show that the enquiry has been conducted in consonance with the provisions of Rules of 1981 and the School Tribunal has rightly dismissed the appeal filed by the petitioner and the order passed by the School Tribunal does not require any interference by this Court.

In the alternative, it is submitted that if this Court comes to the conclusion that there is violation of any provisions of the Rules of 1981 and the enquiry is vitiated, then the respondent/Management be permitted to conduct the enquiry against the petitioner from the stage at which the enquiry is held to be vitiated.

8. Shri N.R. Patil, the learned A.G.P. has submitted that the respondent no.1 has nothing to do with the dispute between the petitioner and the respondent/Management as far as the conduct of enquiry and the termination of the services of the petitioner are concerned. It is submitted that if this Court comes to the conclusion that the termination of services of the petitioner is not proper, then the liability to make available the monetary benefits to the petitioner shall not be fastened on the state exchequer.

9. After hearing the learned advocates for the respective parties and examining the provisions of Rule 36 of the Rules of 1981, I find that the submission made on behalf of the petitioner that the President of the Management cannot act in dual capacity i.e. as the member and as the Convener of the enquiry committee cannot be accepted. Under the scheme of Rule 36 of the Rules of 1981 the requirements for conducting the enquiry against the Head of the school are different from the requirements for conducting the enquiry against the other employees. In case of enquiry against any employee, the statement of allegations has to be communicated by the Chief Executive Officer authorized by the Management, the explanation of the Management has to be submitted to the Chief Executive Officer, who has to take decision as to whether the explanation is satisfactory or not and if he finds that the explanation is not satisfactory, the explanation is required to be placed before the Management for further decision as to whether the enquiry is required to be conducted against the employee or not. In case of an employee, any member/nominee of the Management or President is a member of the enquiry committee and the Chief Executive Officer has to communicate the names of the two members of the enquiry committee i.e. nominee of the Management or President and the State Awardee Teacher, to the employee and the employee has to communicate the name of his nominee to the Chief Executive Officer.

In case of enquiry against the Head of the school, the statement of allegations has to be issued by the President of the Management, the explanation of the Head has to be submitted to the President of the Management who has to take decision as to whether the explanation of the Head is satisfactory or not and if he finds that the explanation of the Head is not satisfactory then it is required to be placed before the Management for taking further decision in the matter. In case of enquiry against the Head of the school, the President of the Management has to be the member of the enquiry committee. The President has to communicate the names of two members nominated on the enquiry committee and the Head has to communicate the name of his nominee to the President.

Considering the scheme of Rule 36 of the Rules of 1981, the provisions of Rule 36(5) of the Rules of 1981 are required to be interpreted.

The Rule 36(5) of the Rules of 1981 reads as follows :-

"36(5). The Convenor of the respective Inquiry Committee shall be the nominee of the President, or as the case may be, the President who shall initiate action pertaining to the conduct of the Inquiry Committee and shall maintain all the relevant record of the enquiry."

If the provisions of Rule 36(5) of the Rules of 1981 are examined considering the scheme of the provisions of Rule 36(1) to (4) of the Rules of 1981, it is clear that the convener of the enquiry committee in case of enquiry against the Head of the school, has to be the President of the Management.

10. Similarly, the President of the Management has to be the member of the enquiry committee as per the provisions of Rule 36(2)(b) of the Rules of 1981. Applying the "Doctrine of Necessity", the President of the Management has to act as the member of the enquiry committee and also as the convener of the enquiry committee.

In view of the above, the challenge as raised on behalf of the petitioner in this regards cannot be accepted.

11. In view of my findings recorded on the above point, the challenge as raised on behalf of the petitioner relying on the provisions of Rule 37(1) of the Rules of 1981 is required to be accepted. As discussed above, the scheme of the provisions of Rule 36 of the Rules of 1981 provide for different requirements for conducting the enquiry against the Head and for conducting the enquiry against any other employee in the school. The provisions of Rule 37 of the Rules of 1981 are required to be interpreted considering the scheme of the Rules of 1981, as discussed above.

The provisions of Rule 37(1) of the Rules of 1981 lay down that the charge-sheet has to be prepared by the Management. The term "Management" is defined in Section 2(12) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 in case of schools other than the schools administered by the State Government or by the local authority, as the person or body of persons whether incorporated or not and by whatever name called, administering such schools.

Rule 37(1) of the Rules of 1981 lays down that the charge-sheet prepared by the Management along with statement of allegations and the explanation of the Head is required to be forwarded to the convener of the enquiry committee. I have already held that in case of enquiry against the Head of the school, the President of the Management has to be the convener of the enquiry committee as per the provisions of Rule 36(5) of the Rules of 1981. In the present case the charge-sheet is sent to the petitioner (Head of the school) by the Chief Executive Officer and not by the President of the Management. The submission made on behalf of the petitioner that the provisions of Rule 37(1) of the Rules of 1981 had not been followed and, therefore, the enquiry is vitiated has to be accepted for the reasons given above. The learned advocate for the petitioner has rightly submitted that the enquiry is required to be conducted as laid down in the Rules and it having not been done, the proceedings of enquiry are vitiated and consequently, the order terminating the services of the petitioner cannot be sustained. This view is supported by the judgment given in the case of Anant R. Kulkarni V/s. Y.P. Education Society and others reported in (2013) 6 SCC 515 : [2013(3) ALL MR 952 (S.C.)].

12. The issue as to whether the members of the enquiry committee are required to submit combined enquiry report as per the provisions of Rule 37(6) of the Rules of 1981 is concluded by the judgment of the Hon'ble Supreme Court given in the case of Vidya Vikas Mandal & Anr. V/s. The Education Officer & Anr., [2007(2) ALL MR 461 (S.C.)] (cited supra). It is undisputed that two members of the enquiry committee had submitted their report on 20th March, 2007 and the third member of the enquiry committee has submitted the report on 22nd March, 2007. The learned advocate for the respondent/Management has tried to distinguish the above referred judgment given by the Hon'ble Supreme Court by submitting that the there had been deliberations by the members of the enquiry committee before submitting the two separate enquiry reports and, therefore, it cannot be said that the provisions of Rule 37(6) of the Rules of 1981 are not complied. The learned advocate for the respondent/Management relied on the judgment given in Writ Petition No.1339/2000, however, the submissions made on behalf of the respondent/Management cannot be accepted as there is nothing on the record to show that all the three members of the enquiry committee have held deliberations before submitting their separate reports. In the judgment given in Writ Petition No.1339/2010, though there were two separate reports both the reports were of the same date i.e. 18th February, 2009 and the record of the enquiry committee showed that there were deliberations amongst the three members of the enquiry committee and after discussions, two members of the enquiry committee had prepared separate report and the third member of the enquiry committee had prepared separate report but on the same date. The conclusions arrived at in Writ Petition No.1339/2010 are in view of the facts of that case. In the present case, as observed above, there is nothing on the record to show that the three members of the enquiry committee have deliberated before submitting different reports and on different dates. In the facts of the present case the judgment given by the Hon'ble Supreme Court in the case of Gopal Damduji Shelwatkar V/s. Gramin Uddhar Society, Kamptee and another, [2000(3) ALL MR 223] (cited supra) is applicable. Therefore, it has to be held that the decision of the Management to terminate the services of the petitioner, relying on the report submitted by two members of the enquiry committee is unsustainable in law.

13. In view of the finding that the issuance of charge-sheet by the Chief Executive Officer is unsustainable and the enquiry is vitiated, the natural consequence would be that the matter has to go back to that stage i.e. the issuance of the charge-sheet. However, the petitioner attained the age of superannuation on 31st August, 2008. The learned advocate for the respondent/Management and the learned A.G.P. have not been able to point out any provision under the Rules of 1981 which enables the Management to continue the enquiry after the employee attained the age of superannuation. The issue is concluded by the judgment given by this Court in the case of Chandraprabha Prabhakar Ghorpade V/s. Maruti alias Marutrao Shivram Patil, [2008(6) ALL MR 193] (cites supra) and the judgment given by the Hon'ble Supreme Court in the case of Anant R. Kulkarni V/s. Y.P. Education Society and others, [2013(3) ALL MR 952 (S.C.)] (cited supra). Therefore, it has to be held that now there cannot be further enquiry against the petitioner.

14. The submission made on behalf of the petitioner that the decision of the Management to terminate the services of the petitioner is unsustainable as the Management has not granted hearing to the petitioner before taking the decision, is not being considered as I have already recorded that the enquiry is vitiated and consequently the order terminating the services of the petitioner is unsustainable.

15. As the order terminating the services of the petitioner is unsustainable and as there cannot be fresh enquiry against the petitioner, it has to be treated that the petitioner was in the service till he attained the age of superannuation on 31st August, 2008.

16. The petitioner has not pleaded either before the School Tribunal or before this Court that he was not gainfully employed during the period when his services were terminated, however, considering the proposition of law laid down by the Hon'ble Supreme Court in the judgment given in the case of Jasmer Singh V/s. State of Haryana & Anr. reported in 2015(1) SCALE 360 the burden to show that the petitioner was gainfully employed during the period when his services were terminated will have to be discharged by the respondent/Management.

In view of the above, it has to be held that the petitioner is entitled for reinstatement with continuity of service and arrears of salary for the period from the date of termination till 31st August, 2008 with all other monetary and consequential benefits.

Hence the following order :

(i) The order passed by the School Tribunal in Appeal No.STN/13/2007 on 18th September, 2013 is set aside and the appeal filed by the petitioner is allowed.

(ii) The order issued by the respondent/Management on 28th March, 2007 terminating the services of the petitioner is quashed.

(iii) It is held that the petitioner is entitled to be treated in service continuously till he attained the age of superannuation on 31st August, 2008.

(iv) The respondent no.2/Management is directed to make available to the petitioner the arrears of salary from the date of termination of service till 31st August, 2008 along with the consequential benefits. The arrears of salary shall be paid within four months.

(v) The respondent no.2/Management and the Headmaster of the school are directed to forward the papers of the pension case of the petitioner to the respondent no.1/Education Officer within two months.

(vi) The respondents 2 and 3 shall also take all the necessary steps within two months to enable the petitioner to get the other terminal benefits.

(vii) The respondent no.1/Education Officer shall take the necessary steps to take decision on the pension case of the petitioner in respect of the other terminal benefits receivable by the petitioner within two months from the date of receipt of the documents from the respondents 2 and 3.

(viii) It is clarified that the liability to pay the arrears of salary of the petitioner is of the respondent no.2/Society irrespective of the fact as to whether the respondents 2 and 3 are entitled for reimbursement of the amount from the state exchequer.

(ix) The entitlement of the respondents 2 and 3 to get the reimbursement of the arrears of salary of the petitioner from the state exchequer is not the issue in this writ petition and it is not decided.

Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.

Ordered accordingly.