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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 4478 OF 2015
PETITIONERS : 1] New Grand Education Society,
Sanjay Maidan, Indora, Kamptee Road,
Nagpur, through its Vice President
2] Smt. Kamlabai Badule, Convener,
New Grand Education Society,
Sanjay Maidan, Indora, Kamptee Road,
Nagpur
ig 3] Head Master,
Indira Gandhi Vidya Mandir,
Ghoti (Tok), Bor, Tah. Ramtek,
District Nagpur.
- VERSUS -
RESPONDENTS : 1] Arun S/o Zituji Pantawane,
Aged years, Occu. Teacher,
R/o Swami Vivekanand Ward,
Near Lal Diwan Dargah, Ramtek,
Dist. Nagpur.
2] Education Officer (Secondary,
Zilla Parishad, Nagpur.
WITH
WRIT PETITION NO. 4480 OF 2015
PETITIONERS : 1] New Grand Education Society,
Sanjay Maidan, Indora, Kamptee Road,
Nagpur, through its Vice President
2] Smt. Kamlabai Badule, Convener,
New Grand Education Society,
Sanjay Maidan, Indora, Kamptee Road,
Nagpur
3] Head Master,
Indira Gandhi Vidya Mandir,
Ghoti (Tok), Bor, Tah. Ramtek, Dist. Nagpur.
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- VERSUS -
RESPONDENTS : 1] Rajesh S/o Nashiket Dongre,
Aged years, Occu. Teacher,
R/o 76, Shiv nagar, Parsoda,
Ramtek, Dist. Nagpur.
2] Education Officer (Secondary,
Zilla Parishad, Nagpur.
WITH
WRIT PETITION NO. 4112 OF 2015
PETITIONERS
: 1] New Grand Education Society,
Sanjay Maidan, Indora, Kamptee Road,
Nagpur, through its Vice President
2] Smt. Kamlabai Badule, Convener,
New Grand Education Society,
Sanjay Maidan, Indora, Kamptee Road,
Nagpur
3] Head Master,
Indira Gandhi Vidya Mandir,
Ghoti (Tok), Bor, Tah. Ramtek,
District Nagpur.
- VERSUS -
RESPONDENTS : 1] Rajendra S/o Vishnuji Thakre,
Aged years, Occu. Teacher,
R/o 25, Anand Nagar, Chhuriya Layout,
Ramtek, Dist. Nagpur.
2] Education Officer (Secondary,
Zilla Parishad, Nagpur.
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Mr. A. S. Dhore, Advocate for the petitioners
Mr. P. N. Shende, Advocate for Resp.No.1 in WP 4478/15 & 4480/15
Mr. S. S. Dhengale, Advocate for Respondent no.1 in W.P. No.4112/15
Mr. S. J. Kadu, A.G.P. for the respondent no.2.
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CORAM :
PRASANNA B. VARALE, J.
JUDGMENT RESERVED ON : 22.03.2016
JUDGMENT PRONOUNCED ON : 01.12.2016
JUDGMENT
1. Heard.
2. Rule. Rule made returnable forthwith. Looking to the controversy involved in all these petitions and the grounds raised by the petitioners, which are one and the same, with the consent of the learned counsel for the parties, all these three petitions are taken up for final disposal and being decided by this common judgment.
3] By these petitions, the petitioners are challenging the judgment and order, dated 18.04.2015 passed by the Presiding School School Tribunal, Nagpur in the respective appeals filed by the respondent no.1-employees.
4] The case of the petitioner-Society is the respondent no.1 in W.P. No.4478/2015 was appointed as an Assistant Teacher in petitioner no.3 school after following selection process and with the prior approval of the Education Society. It is the case of the petitioner-society that the respondent no.1-employee was handed over charge of Headmaster for ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 4 WP4478.15+2.odt the period from 01.09.2006 to 31.11.2007 and from 01.08.2009 to 30.06.2010. Apart from the respondent no.1, two other teachers were also given charge of Head Master in their respective tenure. It came to the knowledge of the petitioner-society that the respondent no.1 and other two teachers while they were in-charge Head Master made illegal appointments of five teachers and the proposals for approval of their services were sent under their signature to the respondent no.2. One of the members of the managing committee of petitioner no.1 society namely Ramesh Zade made a complaint/representation to respondent no.2 - Education Officer (Secondary) in respect of illegal appointments and sought for enquiry and necessary action. As there was no action initiated nor enquiry was conducted in the complaint of Mr. Zade, he approached the Division Bench of this Court by filing Writ Petition No. 5010/2012. The petition was disposed of with a direction to the respondent-authority to consider and decide the representation.
Pursuant to the directions of this Court, an enquiry was conducted and the respondent no.2 - Education Officer found that illegal appointments were made of five teachers and as such the respondent no.2 cancelled the approval granted to the appointment of those five teachers and directed the petitioner-society to initiate an action against the Headmaster, who had submitted the proposals. In view of the ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 5 WP4478.15+2.odt directions of the respondent no.2 - Education Officer, the petitioner-
society terminated the services of those five teachers by issuing termination order, dated 01.08.2013. Being aggrieved by the said order, those teachers approached the School Tribunal. The School Tribunal passed the interim order restraining the petitioners from effecting the termination order. Being aggrieved by the said order of the Tribunal, the petitioners approached this Court by filing writ petition. During pendency of the said writ petition, compromise was arrived at between the petitioner-society and the employees and in view of compromise, a proposal for approval of services of those employees was submitted to the respondent no.2 - Education Officer, but the respondent no.2 rejected that proposal. Being aggrieved by the order of the respondent no.2, those teachers approached this Court by filing Writ Petition No. 4002/2014 seeking direction for grant of approval.
This Court could not find favour with the petitioners/employees and the petition was disposed of by the order dated 06.04.2015 with liberty to the petitioners/employees to approach the Civil Court for redressal of their grievances. In view of the communication of the respondent no.2
- Education Officer, an enquiry was conducted in respect of the misdeeds of the respondent no.1. It was found by the petitioner-society that the respondent no.1 by way of forged documents had submitted ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 6 WP4478.15+2.odt proposal for grant of approval. It was alleged that the respondent no.1 by way of forged signature of the then Secretary of the petitioner no.1-
Society Mr. Badule had submitted the proposal for grant of approval.
As the petitioner-society found that the respondent no.1 was indulged in an act of mischief, the petitioner-society issued statement of allegations and called upon the respondent no.1 to submit his explanation. As the explanation was not found satisfactory, an enquiry committee was set up for conducting enquiry against the respondent no.1. In spite of the opportunities granted to the respondent no.1 to nominate his representative in the enquiry committee, the respondent no.1 failed to avail that opportunity. Ultimately, charge-sheet was issued. A two member enquiry committee was constituted against the respondent no.1 consisting of one State Awardee teacher and one member nominated bu the petitioner-Society. The enquiry committee conducted the enquiry and submitted its report with recommendation to impose major penalty for the grave and serious charges against the respondent no.1. In view of the report of the enquiry committee, the petitioner-society resolved to terminate the services of respondent no.1-employee and accordingly by termination order, dated 28.12.2013, services of respondent no.1 were terminated with effect from 31.12.2013. Being aggrieved by the said termination order, respondent no.1 approached the School Tribunal by ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 7 WP4478.15+2.odt filing appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act. Though, an application was filed for grant of stay, the same was rejected and the School Tribunal allowed the appeal by the impugned judgment and order dated 18.04.2015, thereby quashing and setting aside the termination order and directing the petitioner-society to reinstate the respondent no.1 with continuity of service and 25% back wages.
5] Mr. Dhore, the learned counsel for the petitioners submitted that the impugned order passed by the School Tribunal is unsustainable on various grounds, such as, the Tribunal has failed to appreciate the material presented before it by the petitioner-
management. It was further submitted by the learned counsel that the complaint was made by Mr. Ramesh Zade, one of the members of the petitioner-management, to the respondent no.2 - Education Officer for initiation of an action against the respondent no.1 for his misdeeds and as no cognizance was taken by the respondent no.2-Education Officer, a writ petition bearing No.5010/2012 came to be filed before this Court by Mr. Ramesh Zade. While deciding the said writ petition, the Division Bench of this Court directed the respondent no.2- Education Officer to consider and decide the representation of Mr. Zade within the stipulated ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 8 WP4478.15+2.odt period. It was further submitted by the learned counsel that in view of these facts, the School Tribunal observed that the respondent-Education officer has erred in passing the order on the representation of Mr. Zade.
The learned counsel then submitted that the School Tribunal also erred in observing that the complaint of Mr. Zade was not against the respondent no.1 i.e. appellant before the Tribunal, but it was against the Secretary of the Institute. The learned counsel then submitted that the enquiry conducted by the petitioner-management was by following the due procedure of law and more particularly the provisions of the M.E.P.S. Act and the Rules framed thereunder. The learned counsel for the petitioners submitted that the nature of enquiry conducted in trial is different than the nature of inquiry in the disciplinary proceedings. It was further submitted by the learned counsel that the School Tribunal could not have gone into the legality of the findings arrived at by the Enquiry Committee and could not have acted as if the appellate authority over the enquiry committee. Thus, the learned counsel for the petitioners submitted that the order passed by the School Tribunal is unsustainable.
6] The learned counsel for the petitioners then submitted that when the School Tribunal was of the opinion that the inquiry conducted ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 9 WP4478.15+2.odt through the enquiry committee at the instance of the petitioner-
management suffered from lacuna and the inquiry was vitiated, then the School Tribunal ought to have directed the management for de-novo enquiry from the stage where it was vitiated as per the observation of the School Tribunal. It was submitted by the learned counsel for the petitioners that the petitioner-management had also made such prayer to the School Tribunal, but the School Tribunal in stead of taking recourse of directing de-novo enquiry, allowed the appeal and set aside the order of termination. Thus, in the alternate submission, the learned counsel for the petitioners prayed for remand of the matter back to the School Tribunal. In support of his submissions, the learned counsel for the petitioners placed reliance on the following judgments of this Court as well as the Apex Court :
1] 2014 (2) Mh.L.J. 879 [Bhartiya Seva Acharya Education Society, Nagpur and another vs. School Tribunal, Nagpur and others] 2] 2014 (5) Mh.L.J. 41 [Abdul Salam Abdul Khalique .vs. Shah Babu Edn. Soc. & others] 3] 1997 (3) Mh.L.J. 709 [Thapar Education Society .vs. Shyam Maroti Bhasarkar and oths.] 4] 1997 (2) Mh.L.J. 578 [High Court of Judicature at Bombay through its Registrar .vs.
Udaysingh Ganpartao Naik Nimbalkar and others]
7] Per contra, Mr. Shende and Mr. Dhengale, the learned
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counsel for respondent no.1/employees in W.P. Nos.4478 & 4480 of 2015 and 4112/2015, respectively, support the order impugned in the present petitions.
8] Mr. Shende, the learned counsel for the respondent no.1 submitted that respondent no.1 - Arun Pantawane was appointed as Assistant Teacher in 1997 by following due procedure. It was further submitted by the learned counsel that as there were two groups in the management and though, he was senior, he was not promoted to the post of Headmaster. It was submitted by the learned counsel that one of the groups wanted to favour some other employees by appointing them as Headmaster and wanted that the respondent no.1 should relinquish his claim of seniority, but the respondent no.1 denied to relinquish his claim and as such the group was acting against the respondent no.1 with a grudge. It was submitted by Mr. Shende, the learned counsel that the allegation of mischief played by the respondent no.1 in making illegal appointments of some of the employees, is false and baseless. He submitted that with the prior approval of the then President of the society Mr. Devchand Badule, necessary steps were taken by the respondent no.1, such as publishing advertisement, issuing appointment orders, forwarding proposals to the Education department ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 11 WP4478.15+2.odt etc. Thus, it was the submission of the learned counsel for the respondent no.1 that the respondent no.1 did not play any role in all these matters. The learned counsel further submitted that the inquiry conducted against respondent no.1 was mere a farce as no opportunity of hearing was granted to the respondent no.1. The learned counsel further submitted that no procedure was followed as laid down under the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 for conducting departmental enquiry. It was submitted by the learned counsel that though, the School Tribunal quashed and set aside the termination order and directed reinstatement of respondent no.1 with continuity in service, it granted only 25% of back wages. He further submitted that as the respondent no.1 was not gainfully employed during the period from the date of termination till the date of allowing the appeal, the School Tribunal ought to have granted full back wages to the respondent no.1. Mr. Shende, the learned counsel submitted that the punishment awarded to the respondent no.1, that too on farce enquiry, was completely disproportionate. He submitted that while awarding punishment, there must be subjective satisfaction and without there being subjective satisfaction, the punishment was awarded to the respondent no.1. Mr. Shende, the learned counsel in support of his submissions, placed reliance on the judgments of this ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 12 WP4478.15+2.odt Court reported in 2011 (1) Mh.L.J. 166 in the case of Pralhad Kishor Bondre .vs. Ramkrishna Shikshan Prasarak Sansthan, Lonar, Dist.
Buldana and others ; and 2010 (1) Mh.L.J. 359 in the case of Yavatmal Islamia Anglo Urdu Education Society, Yavatmal and another .vs. Mujib Ahmed Abbas Ali and another.
9] Mr. Dhengale, the learned counsel for the respondent no.1 in WP No.4112/15, largely adopted the arguments of the learned counsel Mr. Shende and submitted that the respondent no.1/employee by following due procedure had forwarded the proposal of appointment of the employees and no role was played by the respondent no.1 in the alleged appointment of other employees. The learned counsel submitted that the services of the employees who were alleged to be illegally appointed, were terminated. The termination order was challenged before this Court. It was submitted that in the proceedings before this Court, those employees and the petitioner-management arrived at a compromise. Thus, both the learned counsel for the respondent no.1 support the order passed by the School Tribunal impugned in the present petition.
10] On the backdrop of the submissions of the learned counsel
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appearing for the parties, I have gone through the material placed on record. Perusal of the material show that Mr. Ramesh Zade had submitted a representation to the respondent no.2 - Education Officer.
It was submitted in the representation that the respondent no.1 in all these petitions namely, Arun Pantawne, Rajendra Thakre and Rajesh Dongre, who were the in-charge Headmasters, submitted a proposal to the respondent no.2 authority for appointment of five teachers namely Smt. Sharja Meshram, Raju Pendam, Shubhangi Thakare, A.B. Bobde and R.Y. Raut. It was submitted in the representation that while submitting those proposals, fraudulent documents were submitted and also incorrect information was provided to the Education Department.
It was submitted that in respect of appointment of Smt. Sharja Meshram, transfer was shown of said employee from one school to another school and it was submitted that a meeting was conducted. It was submitted that Mr. Zade was shown to be present in the said meeting by referring to his signature. It was submitted in the representation that neither the meeting was conducted as per the Rules, nor Mr. Zade was present in that meeting. It was submitted that even roster submitted before the authority was not the genuine roster.
Perusal of the material further shows that as no cognizance was taken of the representation made by Mr. Zade, the Division Bench of this Court, ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 14 WP4478.15+2.odt by order dated 18.10.2012 in W.P. No. 5010/12 directed the respondent no.2 - Education Officer to decide the representation. The material placed on record further shows that the respondent no.2, in compliance of the order of this Court, by giving an opportunity of hearing to the employees, who were allegedly appointed and on a perusal of the material and the record, found that those appointments were made in breach of the Rules of 1981 and there was no transparency in the appointments. The respondent no.2 - Education Officer then directed the petitioner-management to initiate action against those Headmasters, who forwarded the proposal for appointment of five employees. It would be interesting to note that one of such employee, namely Smt. Thakre had approached this Court seeking direction to the authorities of Education Department to grant approval to her appointment and release the salary and the Division Bench of this Court in Writ Petition No. 4002/2014, by order dated 06.04.2015 thought it fit not to entertain the petition. The petition was accordingly disposed of with liberty to the petitioner/employee to avail other remedies.
11] Thus, there was considerable merit in the submission of the learned counsel for the petitioners that the School Tribunal has erred in ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 15 WP4478.15+2.odt observing that the respondent no.2 - Education Officer could not have directed the petitioner- management to initiate enquiry against the respondent no.1-employees. The material placed on record also show that the School Tribunal only referred to the earlier complaint of Mr. Zade, wherein he had sought an action against the then Secretary of the Society. The School Tribunal failed to consider that subsequently there was a representation made to the respondent no.2 - Education Officer and under the orders of the Division Bench of this Court, the respondent no.2 conducted enquiry and passed the order. These facts are already referred to above. The School Tribunal only on assumptions and presumptions observed that the signatures appearing on the documents that is of respondent no.1-employee were put in at the instance of the management. When there was no material before the Tribunal that the management insisted upon the respondent no.1-employees to sign the documents such as publishing advertisement in newspaper, preparing the selection list, preparing and maintaining the Roster, then in that case, the School Tribunal could not have arrived at a conclusion that if the management had issued instructions, the respondent no.1 could not have refused or denied to put his signature on the documents.
12] The School Tribunal in its impugned judgment, by referring
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to the version of Smt.Sharja Meshram observed that the findings of the inquiry committee were perverse as the committee failed to consider the cross-examination of the Chief Executive Officer and replies given by Smt. Sharja Meshram. The School Tribunal failed to consider the aspect that it was an allegation against the respondent no.1-employee (appellant before the Tribunal) that he had appointed Smt. Meshram illegally and by submitting the fraudulent documents before the education authorities. The replies given by Smt. Meshram were that the appellant had not made false signature and her behaviour was proper.
Now, on these replies, the School Tribunal arrived at a conclusion that the inquiry committee has not considered the cross-examination of the Chief Executive Officer and the replies given by Smt. Meshram and such findings are perverse. The School Tribunal thus clearly erred in recording these findings.
13] The School Tribunal, on the aspect of non-compliance of the provisions of the MEPS Rules by referring to Rule 36(2) and by referring to the certificate submitted by the petitioner-management in the name of Shri R.D. Suryavanshi, State Awardee Headmaster, observed that no material placed to show that name of Shri R.D.
Suryavanshi was included in the panel of State/National Awardee Head ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 17 WP4478.15+2.odt Masters. The School Tribunal then hold that the management failed to constitute the inquiry committee as per the Rules. In view of this peculiar fact that the School Tribunal found that there was non-
compliance of Rule 36 of the Rules of 1981 as one of the member of the inquiry committed was not the panel of State/National Awardee Head Masters, then in that case the Tribunal ought not to have proceeded on assessment of the merits of the appeal and the course open for the Tribunal was to direct the petitioner-management to conduct the enquiry de novo from the stage at which it was vitiated.
14] As Mr. Dhore, the learned counsel for the petitioners placed heavy reliance on the judgment of this Court in the case of Bhartiya Seva Acharya Education Society .vs. School Tribunal Nagpur and others, it will be useful to refer to the relevant observations of this Court in the said judgment. This Court at paragraph 6 has observed thus -
"6. The question involved in the present petition is as to whether the tribunal was right in passing the order of reinstatement, continuity in service with full backwages, without leaving option to the management to hold de novo enquiry when it has held that the enquiry conducted by the management vitiates on technical defects. The another question is whether the tribunal was right in going into the merits of the charges levelled against an employee to hold that the charges of ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 18 WP4478.15+2.odt misconduct levelled against her have not been established, when the tribunal finds that the enquiry was vitiated on technical grounds."
Then, this Court referred to the judgment of Full Bench of this Court in the case of Saindranath jagannath Jawanjal .vs. Pratibha Shikshan Sanstha and another 2007(3) Mh.L.J. (F.B.) 753] and observed at paragraphs 8 and 9 thus -
"8.
It is thus apparent that in case where the enquiry is found to be defective, the appropriate relief as has been held in Dr. Harbhajan Singh Greasy's case by the Apex Court is to set aside the order of dismissal with direction to the management to hold an enquiry from the stage the illegality has crept in and that the reinstatement is to be treated for the purposes of holding fresh enquiry and no more. So far as the backwages are concerned, the entitlement thereof is to make dependent on the final outcome of the fresh enquiry. The case of "defective enquiry" is considered on part with the case of "no enquiry", even in respect of the cases arising out of disciplinary proceedings conducted under the MEPS Act and the Rules framed thereunder.
9. In view of above law laid down by the Full Bench of this Court, it was not permissible for the School Tribunal to go into the merits of the charges levelled against an employee and the tribunal should have set aside the order of termination and permitted the management to hold an enquiry from the stage ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 19 WP4478.15+2.odt the illegality has crept in and that the reinstatement of the respondent no.3 is required to be treated for the purposes of holding fresh enquiry and no more. The question of payment of backwages in such a situation also does not arise as it would depend upon the final outcome of the fresh enquiry."
The same view was reiterated in another judgment of this Court, relied on by the learned counsel for the petitioners, in the case of Abdul Salam Abdul Khalique .vs. Shah Babu Education Society and others (supra).
15] Though, Mr. Shende, the learned counsel for respondent no.1/employees placed reliance on the judgments of this Court in the case of Pralhad Kishor Bondre .vs. Ramkrishna Shikshan Prasarak Sansthan and others ; and Yavatmal Islamia Angro Urdu Education Society .vs. Mujib Ahmed Abbas Ali and others (supra) and though, there cannot be any dispute on the proposition of law reflected in these judgments, in view of the above referred facts, I am of the opinion that the judgments relied on by Mr. Shende, the learned counsel are of no help to him.
16] Considering the facts of the present matter, I am of the opinion that the orders passed by the School Tribunal are unsustainable.
I see no reason to take any different view than the view taken by this ::: Uploaded on - 01/12/2016 ::: Downloaded on - 03/12/2016 01:00:49 ::: 20 WP4478.15+2.odt Court in Bhartiya Seva Acharya Education Society's case. In the result, the writ petitions are partly allowed.
(i) The impugned judgment and order, dated 18.04.2015 passed by the School Tribunal, Nagpur in the respective appeals filed by the respondent no.1/employees, are quashed and aside to the extent of setting aside the termination of respondent no.1-employees and granting reinstatement and continuity in service with 25% back wages within a month from the date of order.
(ii) The management is at liberty to hold de novo enquiry against respondent no.1-employees from the stage at which the School Tribunal has found the enquiry to be defective in accordance with the provisions of the M.E.P.S. Act and the Rules framed thereunder.
(iii) The petitioner-management to complete the entire enquiry within a period of six months from the date of the order of this Court and pass the ultimate order.
(iv) The respondent no.1-employees shall be deemed to have been placed under suspension with effect from the order of termination and would be entitled for subsistence allowance in accordance with Rule 34 of the M.E.P.S. Rules till the enquiry is concluded and ultimate orders are passed by the petitioner-management.
(v) The writ petitions are disposed of. Rule is made absolute in the aforesaid terms. No order as to costs.
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JUDGE
Diwale
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