Gurumaharaj Shikshan Prasarak ... vs Jalindar Mahadeo Kedar And Ors.
2005 Latest Caselaw 1369 Bom

JUDGMENT

Deshpande A.P., J.

1. The learned Single Judge of this Court, Justice A.B. Naik, disagreeing with the view expressed by another learned Single Judge of this Court in the case of Bed Shikshan Mandal, Sangamner and Anr. v. Poonam Rameshwar Joshi and Anr. reported in 2001 (Supp. 2) Bom.C.R. (A.B.) 635 : 2002(4) Mh.L.J. 848 has made a reference and hence, the matter is placed before this Division Bench.

2. In the case of Bal Shikshan Mandal the school management had dismissed the employee and aggrieved thereby, he had filed an appeal before the School Tribunal, Solapur under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the MEPS Act' for the sake of brevity). The School Tribunal allowed the appeal on the ground that the employee was not granted reasonable opportunity of being heard in the inquiry stood vitiated having not been conducted in conformity with the procedure laid down under Rules 36 and 37 of the Maharashtra Employees Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to the MEPS Rules' for the sake of brevity).

3. In a writ petition filed before the learned Single Judge, the school management had contended that the Tribunal failed to afford an opportunity to the management to lead further evidence despite the fact that the Tribunal had found that the inquiry was vi-tiated. The learned Single Judge placing reliance on a judgment rendered by a learned Single Judge in Pralhadrai Dalmia Lions College of Commerce and Economics, Bombay and Ors. v. A.M. Rangaparia and Ors. reported in 1988 Mh.L.J. 530 allowed the writ petition and remanded the matter to the School Tribunal with a direction to afford proper opportunity to the school management to produce further evidence in the matter. The learned Single Judge held that:

once enquiry is held to have been vitiated, obviously, the management should get further opportunity to produce evidence to prove the charges levelled against the delinquent. This is the broad principle of law which has been followed by the learned Single Judge of this Court in A.M. Rangapariya's case (supra).

From the observations made in para 6 of the judgment, it is revealed that no so alternative plea was taken by the school management in its written statement reserving a right to lead further evidence in the matter, in case the inquiry was to be held as vitiated for non-compliance of principles of natural justice. Despite the failure on the part of the school management to take an alternative plea reserving the right to lead further evidence in case the inquiry is held to be in violation of principles of natural justice, the learned Single Judge also recorded a finding that such a failure cannot be a justification to deny opportunities to the management to prove its case.

Justice A.B. Naik disagreeing with the said view has, in his reference order, held that having regard to the provisions of Sections 10 and 11 of the MEPS Act, no such right to lead evidence/additional evidence before the School Tribunal can be read in favour of the management/employer. The learned Judge has further proceeded to conclude in the M.E.P.S. Act, the ration laid down in the judgement reported in 1988 Mh.L.J. 530 (Rangaparia's case cited supra) which is followed by the learned Single Judge in 2002(4) Mh.L.J. 848 (Bal Shikshan Mandal's case cited supra) cannot be applied to the proceedings under the MEPS Act.

4. Right to lead evidence/additional evidence by the employer before the Labour Court or the Industrial Tribunal in proceedings under Section 10 or in proceedings under Section 33 of the Industrial Disputes Act, when approval to an action is sought by the employer, has been evolved by a catena of judgments of the Apex Court, The learned Counsel for the management tried to persuade us to apply the same principle to the proceeding before the School Tribunal. Reliance is placed on the following decisions of the Supreme Court.

In the judgment in the matter of Workmen of the Matipur Sugar Factory Private Ltd. v. The Motipur Sugar Factory the Apex Court held in para 11 thus :

It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the Tribunal by leading all relevant evidence before it. In such a case, the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the Tribunal which will have jurisdiction not only to go into the limited questions open to a Tribunal where domestic enquiry has been properly held, but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified.

After discussing the reasons or providing an opportunity to the employer to lead evidence before the Tribunal, the Court observed in para 12 thus:

That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the Tribunal tries the merits itself. This view is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the objects of avoiding delay in disposal of industrial disputes. Therefore, we are satisfied that no distinction can be made between cases where the enquiry has in fact been held. We must, therefore, reject the contention that as there was no enquiry in this case it was not open to the respondent to justify the discharge before the Tribunal.

5. The next judgment is (The Workman of Fire-stone Tyre and Rubber Co. of India Ltd. v. The Maganement and Ors. the Supreme Court after considering the entire law on the subject laid down the broad principles which emerged prior to introduction of Section 11-A in the Industrial Disputes Act and same are set out in para 27 which reads thus :

From those decisions, the following principles broadly emerge :

(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter had power to see if action of the employer is justified.

(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.

(3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the, findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.

(4) Even if no enquiry has been held by an employer or if the enquiry held by his is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to given an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.

(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal an the latter, on evidence adduced before it, has to decide for itself whether the misconduct alleged is roved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no inquiry.

(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.

(7) It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharge employee, once it is ground that no domestic enquiry has been held or the said enquiry is ground to be defective.

(8) An employer, who wants to avail himself of -the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.

(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.

(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in the Management of Panitole Tea Estate v. The Workmen , within the judicial decision of a Labour Court or Tribunal.

6. The principle embodied in sub-para (8) above would reveal that the Tribunal has no power to refuse a timely request made by the employer to lead evidence additional evidence. After considering the effect of insertion of Section 11-A in the Act, the Apex Court observed in para 35 as under :

Having held that the right of the employer to adduce evidence continues even under the new Section, it is needless to state that when such evidence is adduced for the first time, it is the Tribunal which has to be satisfied on such evidence about the guilt or otherwise of the workman concerned.

In para 58 the Apex Court observed thus :

We have already expressed out view regarding the interpretation of Section 11-A, We have held that the previous law, according to the decisions of this Court, in cases where a proper domestic enquiry had been held, was that the Tribunal had no jurisdiction to interfere with the finding of misconduct except under certain circumstances. The position further was that the Tribunal had no jurisdiction to interfere with the punishment imposed by an employer both in cases where the misconduct is established in a proper domestic enquiry as also in cases where the Tribunal finds such misconduct proved on the basis of evidence adduced before it. These limitations on the powers of the Tribunals were recognised by this Court mainly on the basis that the power to take disciplinary action and impose punishment was part of the managerial functions. That means that the law, as laid down by this Court over a period of years, had recognised certain managerial rights in an employer. We have pointed out that this position has now been changed by Section 11-A. The section has the effect of altering the law by abridging the lights of the employer inasmuch as it gives power to the Tribunal for the first time to differ both on finding of misconduct arrived at by an employer as well as the punishment imposed by him.

It is thus clear that the employer's right to lead evidence/additional evidence before the Labour Court/Industrial Tribunal has been recognised before, so also, after introduction of Section 11-A in the Industrial Disputes Act.

7. The last judgment, to which we would like to make a reference is a judgment of the Constitution Bench of the Supreme Court, which is Karnataka State Road Transport Corporation v. Lakshmidevamma (Smt) and Anr. The appeal was referred to the Bench of Five Judges in view of the conflict of decisions in Shambhunath Goyal v. Bank of Baroda and Rajendra Zha v. Presiding Officer, Labour Court reported in 1984 Supp. S.C.C. 520. The controversy in the said matter was, as to at what stage the employer should seek permission to lead evidence before the Labour Court. By a majority judgment, the Supreme Court has approved the law laid down in Shanibhunath Goyal's case which held thus :

The rights, which the employer has in law, to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either under Section 10 or Section 33 of the Industrial Disputes Act, questioning the legality of the order, terminating the services, must be availed by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take certain action or seeking approval of the action by it.

Approving the above referred position the Apex Court made following observations in regard to the right of the management to lead evidence before the Labour Court or Industrial Tribunal.

Before we proceed to examine this question any further, it will be useful to bear in mind that the right of management to lead evidence before the Labour Court or the Industrial Tribunal in justification of its decision under consideration by such Tribunal or Court is not a statutory right. This is actually a procedure laid down by this Court to avoid delay and multiplicity of proceedings in the disposal of disputes between the management and the workman.

The Apex Court concluded by holding that a right to lead evidence/additional evidence can be invoked only at the threshold i.e. when the written statement is filed in reference proceedings under Section 10. The judgment delivered by Justice Santosh Hegde for himself and Bharucha, J., reflects the majority view, whereas, the judgment delivered by Justice Shivraj Patil for himself an Khare, J, though a concurring judgment, goes to explain and clarify the judgment delivered by Justice N. Santosh Hegde. In para 44 and 45 Justice Shivraj Patil clarified the judgment delivered by Justice Santosh Hegde by making these observations :

44. The question as to at what stage the management should seek leave of the Labour Court/Tribunal to lead evidence/additional evidence justifying its action is considered in the draft judgment of Hegde, J., and not the power of the Court/Tribunal requiring or directing the parties to produce evidence if deemed fit in a given case having regard to the facts and circumstances of that case. As per Section 11(1) of the Industrial Disputes Act, 1947 (for short "the Act") a Court/Tribunal can follow the procedure which it thinks fit in the circumstances of the cases subject to the provisions of the Act and Rules framed thereunder and in accordance with the principles of natural justice. Under Section 11(3), the Labour Court/Tribunal and other authorities mentioned therein have the same powers as are vested in a Civil Court under the Code of Civil Procedure when trying a suit in respect of certain matters which include enforcing the attendance of any person and examining him on oath and compelling the production of documents and material objects."

45. It is consistently held and accepted that strict rules of evidence are not applicable to the proceedings before the Labour Court/ Tribunal but essentially the rules of natural justice are to be observed in such proceedings. Labour Courts/Tribunals have the power to call for any evidence at any stage of the proceedings if the facts and circumstances of the case demand the same to meet the ends of justice in a given situation. We reiterate that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the Court/ Tribunal in the written statement itself to lead additional evidence to support its action in the alternative and without prejudice to its rights and contentions. But this should not be understood as placing fetters on the powers of the Court/Tribunal requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice.

8. Placing reliance on the above referred judgments the learned Counsel appearing for the management contended that the same principle, which is evolved by the Apex Court conferring a right on the employer to lead evidence/additional evidence before the Labour Court/Industrial Tribunal, has to be borrowed while deciding appeals under the provisions of the MEPS Act before the School Tribunal. It is then contended that if the said right of an employer is read in favour of the management/employer, the same would result in final adjudication of the disputes and avoid multiplicity of proceedings.

9. Per contra, the learned Counsel appearing for the employee submits in the first place, that the aforesaid principle which recognizes a right in favour of the employer to lead evidence before the Labour Court/Industrial Tribunal cannot be imported in the proceeding in relation to the appeals before the School Tribunal, as the School Tribunal is an Appellate Tribunal and not a trial Court as in the case in relation to a Labour Court/Industrial Tribunal while trying disputes under Section 10 of the Industrial Disputes Act. In this submission, one cannot conceive of procedure permitting leading of evidence/ additional evidence before the Appellate Court as a matter of course, as the same would run counter to the well set principles in relation to the powers and its exercise by the Appellate Court. It is submitted that ordinarily evidence is not to be led before the Appellate Court and the same could be led only in exceptional cases. To bring home the point, the learned Counsel refers to Section 10(1) of the Act, which provides that the Tribunal shall have same powers as are vested in an Appellate Court under the Civil Procedure Code.

10. Placing reliance on the language used in Section 10(1) of the MEPS Act, he further submits that the Tribunal being an Appellate Authority has been vested with the powers of the Appellate Court under the CPC in contradistinction to the exercise of power of Civil Court by the Labour Court/Industrial Tribunal under Section 11(3) of the Industrial Disputes Act. Carrying his submissions further, the learned Counsel has invited out attention to Section 107 of the CPC, besides pointing out the consent of the powers of the Appellate Court under Order 41, Rule 33, so also, limitations on exercise of the said power in Order 41, Rule 27 of CPC. The learned Counsel has made two fold submissions (a) that the principle enunciated by the Apex Court whereunder a right to lead evidence/ additional evidence is recognised in favour of the employer during proceedings before the Labour Court/Industrial Tribunal under Section 10 or 33 of the Industrial Disputes Act, which acts as a trial Court, cannot be imported in the appellate proceedings before the School Tribunal and (b) that the above referred right cannot be read in favour of a school management as the same is not envisaged by the provisions of the Act ad the Rules. The learned Counsel has referred to the relevant rules and more particularly, Rules 36 and 37 of the MEPS Rules, 1981, which lays down in minute details the procedure that is required to be followed in an enquiry. It is contended that as the subject of conduct of an enquiry is fully covered by the relevant Rules, there is no scope for borrowing the principle enunciated by the judgments of the Apex Court, as the same would run counter to the statutory rules governing the field. It is emphatically stated that the enquiry under the rules cannot be equated with domestic enquiry, as is understood conventionally. Whereas, the Counsel for the management urged that though the School Tribunal is vested with power to try the appeals, the same is a misnomer, it is contended that the School Tribunal is as good a trial Court, as is held in A.M. Rangaparia's case (supra) reported in 1988 Mh.L.J. 530 in relation to the College Tribunal functioning under the Bombay University Act. We proceed to consider the relevant provisions of the Act and the Rules to find out the status of the School Tribunal and to consider the related issues.

11. Preamble of the MEPS Act reveals that the Act came to be enacted to regulate the recruitment and conditions of service of the employees, to provide such employees security and stability of service, to enable them to discharge their duties effectively and efficiently. Section 9 of the Act provides right of appeal to the employees of a private school against orders of dismissal, removal, termination of service, reduction in rank and suppression of his claim while making appointment to any post by promotion, Section 10 deals with general powers and procedure to be followed by the Tribunal in deciding the appeal. Section 10(1) reads thus:

(1) For the purposes of admission, hearing the disposal of appeals, the Tribunal shall have the same powers as are vested in an Appellate Court under the Code of Civil Procedure 1908, and shall also have the power to stay the operation of any order against which an appeal is made, on such conditions as it may think fit to impose and such other powers as are conferred on it by or under this Act.

Sub-section (2) of Section 10, permits the Tribunal to decide on the procedure to be followed by it for the disposal of its business.

Section 10(1) declares that the Tribunal shall have the same powers as are vested in an Appellate Court under the CPC It will not be out of place to refer to the relevant provisions of the CPC dealing with the powers of the Appellate Court. Section 107 of the Code lays down "that Subject to such conditions and limitations as may be prescribed. an Appellate Court shall have power :

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

Sub-section (2) thereof, lays down that subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein.

Order 41, Rule 33 again deals with powers of the Court of Appeal and the same provides that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power maybe exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. A conjoint reading of Section 107 and Order 41, Rule 33, leave no room of doubt that the Appellate Court enjoys the powers referred to in Section 107, besides enjoying the powers that are possessed by the trial Court.

12. Section 107 provides for the powers of the Appellate Court subject to the conditions and limitations as are prescribed under the Code. Relevant limitations that are imposed in exercise of powers of the Appellate Court are to be found in Rule 27 of Order 41 of the C.P.C. which deals with production of additional evidence in Appellate Court. The said Rule lays down that the parties to an appeal shall not be entitled to produce evidence whether oral or documentary in the Appellate Court, except in cases provided for by Clauses (a), (aa) and (b). The general rule is that no evidence is to be adduced before the Appellate Court, whereas, an exception, is carved out to the general rule in cases falling under Clauses (a), (aa) and (b). To briefly state the excetions, the same relates to situations wherein admissible evidence has been refused to be admitted, that the party seeking to product additional evidence at the appellate stage establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence be produced by him at the time when the decree appealed against was passed and lastly, the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause.

13. As the School Tribunal is vested with powers which are exercised by the courts of appeal under the CPC, the said powers will also bring alongwith it, the limitations which are well recognized in exercise of the appellate powers. One of the well recognised limitation is, that as a general rule, evidence is not to be led before the Appellate Court as of right. The same is permissible in cases covered by Order 41, Rule 27 of the CPC. Perusal of Sections 9,10 and 11 of the MEPS Act clearly goes to indicate that while the Tribunal tries appeals, it is vested with powers which are exercised by the courts of appeal under the CPC coupled with the power to grant and mould relief, which are all the trappings of an Appellate Tribunal. The Tribunal under Section 11 is empowered to dismiss an appeal, set aside an order of the management partially or wholly, direct the management to reinstate the employee on the same post or a lower post, to restore the employee to the rank which he held before reduction or to any lower rank, as it amy specify, to award such lesser punishment as it may specify in lieu of dismissal, removal/ otherwise termination of service or reduction in rank, as the case may be. The Tribunal has also power to compensate an employee by directing monetary payments in lieu of reinstatement having regard to the number of years of service put in by the employee and to pass such other orders as would do justice between the parties. The content of the power with the School Tribunal is indicative of the fact that the School Tribunal exercised the powers of an appellate authority. As the Tribunal functions as an appellate authority, the principle which recognizes a right in the employer to lead evidence/additional evidence before the Labour Court or Industrial Tribunal cannot be made applicable to the appellate proceedings before the School Tribunal. We hasten to add that the Appellate Court is possessed of such a power which could be exercised in appropriate cases having regard to the parameters laid down under Order 41, Rule 27, to enable it to pronounce judgment or for any other substantial cause.

14. It will not be out of place to mention that the right to lead evidence/additional evidence in favour of an employer in proceedings under Section 10 or 33 of the Industrial Dispute Act, has been evolved by the judgments of the Apex Court, in view of the fact that the said proceedings were directed against an order passed in a domestic enquiry, wherein, the employer passes an order of punishment. It is necessary to find out the true nature of the order of punishment in the scheme of the MEPS Rules. We proceed to consider the relevant rules to find out as to whether the enquiry under the MEPS Rules could be equated with a domestic enquiry, as is conventionally understood.

Rule 28(5) lays down the grounds on which an employee is liable to be punished and the same are, misconduct, moral turpitude, wilful and persistent negligence of duty, incompetence etc. Rule 29 prescribes the penalties, whereas Rule 31 classifies the penalties into major and minor penalties. Rule 33 deals with the procedure for inflicting major penalties. Rule 36 provides for constitution of inquiry Committee and the procedure to be followed for conduct of inquiry is elaborately laid down under Rule 37.

Rule 36 lays down that the Inquiry shall be conducted through a properly constituted Inquiry Committee. Sub-rule 2(a) gives the composition of the Inquiry Committee and in case of an employee, the Inquiry Committee comprises of (i) a member of the management to be nominated by the management or the President (ii) one member to be nominated by the employee from amongst the employees of a private school; and (iii) one member chosen by the Chief Executive Officer from the panel of teachers on whom State/National award has been conferred. In regard to a Head Master, the Inquiry Committee is to comprise of (i) President of the Management (ii) One member to be nominated by the Head from amongst the employees of a private school and (iii) one member chosen by the President from the panel of Head Masters on whom State/National Award has been confered. It is only a Committee, which is constituted in conformity with Rule 36(2) is competent to hold an inquiry in cases where major punishments are to be inflicted. This rule clearly reveals the striking departure from an ordinary domestic inquiry wherein the inquiry is conducted by the employer. To us, it appears that the Inquiry Committee is capable of being referred to as an a neutral Committee which has representation of the employee as well, besides having a State/National Awardee teacher/head master as another member, in addition to the nominee of the management.

Rule 37 is a crucial rule, which not only provides for various steps to be taken in the inquiry to conform it with the principles of natural justice, but also goes to vest the Inquiry Committee constituted under Rule 36 with power to record findings and decide whether the employee is guilty of misconduct. Not only that, the decision of the Inquiry Committee itself, binds the employer and the employee inasmuch as the decision of the Inquiry Committee has to be implemented by the management/employer. Sub-rule (6) would clinch the issue, that the authority to impose punishment is not with the employer but it is with the statutorily constituted Inquiry Committee. The management is only to implement the said decision. This position is clear from the reading of Sub-rule (6) which reads thus :

On receipt of such further explanation or if no explanation is offered within the aforesaid time the Inquiry Committee shall complete the inquiry had communicate its findings on the charges against the employe and its decision on the basis of these findings to the management for specific action to be taken against the employee or the Head, as the case may be, within ten days after the date fixed for receipt of further explanation. It shall also forward a copy of the same by registered post acknowledgment due to the employee or the Head, as the case may be. A copy of the findings and decision shall also be endorsed to the education officer or the deputy director, as the case may be, by registered post acknowledgement due. Thereafter, the decision of the Inquiry Committee shall be implemented by the management which shall issue necessary orders within seven days from the date of receipt of decision of the Inquiry Committee, by registered post acknowledgement due. The management shall also endorse a copy of the order to the education officer or the deputy director as the case may be.

Rule 38 injuncts are management from delegating the power to any subordinate authority other than the Chief Executive Officer to execute the decision of the Inquiry Committee. Examination of Rules 36 and 37 brings home the following position and the same is to the effect that an inquiry in regard to misconduct where major penalty can be inflicted could be only conducted by a Committee constituted as per the requirement of the rule which is referred to hereinabove, and the decision of the said Committee is final and binding on the parties, which is only to be implemented by the employer, subject to the appellate remedy. This being the position, we are of the view that the inquiry proceeding conducted under the MEPS Rules is not akin to the domestic enquiry which is understood in the conventional sense. An order of dismissal, removal, or termination issued by the management which is subject-matter of an appeal, is only a consequential order which conies into being while implementing the decision of the Inquiry Committee. This being the position, what is in substance under challenge before the Tribunal in an appeal filed by an employee under Section 9 of the MEPS Act, is the decision of the Inquiry Committee, which Committee is comprised of nominee of the employer, nominee of the employee and a National/State Awardee teacher. The Tribunal sits as an appellate authority and examines the legality and validity of the decision reached by the Inquiry Committee. The Tribunal des not act as a trial Court or a fact finding Court, but, acts as an Appellate Tribunal. The inquiry is conducted by a neutral, statutorily constituted body and the decision of the Inquiry Committee binds both, the employer and the employee. The inquiry under the provisions of the MEPS Act not being akin to a domestic enquiry, the principle recognizing a right in the employer to lead evidence/additional evidence cannot be made applicable to the appellate proceedings before the School Tribunal. We are fortified in this decision in view of the fact that all the proceedings of the enquiry are reduced into writing and are signed in authentication of the correctness thereof, which record would be available before the Tribunal while deciding an appeal.

There is one more reason as to why we are of the view that the management cannot claim a right to lead evidence/additional evidence before the School Tribunal and the same is to be found in the language used in Section 11(2) of the Act. Section 11(2) provides that "where the Tribunal decides in any appeal that the order of dismissal/removal/ otherwise termination of service or reduction in rank, was in contravention of any law (including any rules made under this Act)... the Tribunal may set aside the order of the management, partially or wholly and directed management...." If the order under challenge before the Appellate Tribunal is capable of being quashed by the Tribunal on the ground that it violate, the rules (which would include Rules 36 and 37), then to permit the employer to lead further evidence and to cure the defect in not affording proper opportunity to the employee during the enquiry, by applying the aforesaid principle, it could run counter to Section 11(2) of the Act. If this principle deduced by the judgments of the Apex Court in proceedings under Sections 10 and 33 of the Industrial Disputes Act is to be applied in the scheme of the MEPS Act, the same would result in curtailing or truncating the power vested in the Tribunal by virtue of Section 11 (2) of the Act. Let us take a hypothetical case when the management illegally constitutes an Inquiry Committee without including the nominee of the employee, the inquiry would be rendered illegal under the rules but if the above principle is applied, the management could still claim a right to lead evidence or additional evidence before the Tribunal, in which situation, the Tribunal would not be in a position to quash the order under challenge before it on the ground that the impugned order is passed in violation of the mandatory rule. Take yet another example, wherein the employee is not permitted to lead evidence or is not permitted to cross-examine the witnesses examined by the employer. In such case as well, if the principle recognising the right of employer to lead evidence before the Tribunal is applied, the same would again clip the powers of the Tribunal to set aside the said order by having recourse to Rule 11(2) of the Rules. This being the situation, we cannot comprehend borrowing the above referred principle in the scheme of the MEPS Act and the Rules made thereunder.

15. In Bal Shikshan Mandal's case, the learned Single Judge has heavily relied upon the judgment reported in 1988 Mh.L.J. 530 AM, Rangaparia's case cited supra). In the said case, an identical issue was involved i.e., as to whether the management has a right to lead evidence/ additional evidence before the Presiding Officer of the College Tribunal constituted under the Bombay University Act. The learned Single Judge held that:

analogy of Section 11-A of the Industrial Disputes Act could be invoked to substantiate the interpretation of Section 42-D of the Act. The only distinction sought to be drawn by Shri Deshmukh is that under the Industrial Disputes Act the proceedings arise out of reference and, therefore, reference cannot be equated with an appeal. As indicated earlier nomenclature is not the only decisive factor but the object of the provision will have to be considered. As far as the appeal before the College Tribunal is concerned I have already come to the conclusion that the appeal before the Tribunal is nothing but a plaint by the aggrieved party challenging the order passed by the domestic Tribunal.

In the said judgment, the principle recognising right of the employer to lead evidence before the Labour Court/Industrial Tribunal was applied as the Court found that appeal before the College Tribunal was a misnomer and as a matter of fact, the status of the College Tribunal was that of a trial Court and the proceedings that are initiated before the Tribunal are nothing but by filing a plaint. As we have already held that the School Tribunal is an Appellate Tribunal, the ratio laid down in the said judgment has no applicability to the question involved in the present case.

16. The next judgment on which reliance is placed by the learned Counsel appearing for the School management is reported in 2005(II) C.L.R. 966. The learned Single Judge, allowing the writ petition, set aside an order passed by the universities and College Tribunal under the Maharashtra Universities Act, 1991, rejecting an application moved by the college management urging to frame a preliminary issue in respect of fairness or otherwise of the enuiry conducted against the employee; and alternatively praying that in case the said enquiry is held to be unfair, the management be permitted to prove the misconduct before the Tribunal. The learned Single Judge has applied the principle recognizing a right of the managment to lead evidence/additional evidence before the Tribunal as such a plea was raised in the written statement. Perusal of the judgment does not disclose that any party had questioned the applicability of the said principle to the proceedings before the University and College Tribunal on the ground that the Tribunal so constituted being an Appellate Tribunal the principle cannot be applied. The judgment seems to have been delivered without there being any objection raised to the applicability of the said principle in proceedings before the University and College Tribunal and as such, the said judgment is of no avail to determine the question of applicability of the principle to the appellate proceedings pending on the file of the university and College Tribunal. This judgment does not advance the cause of the employer/management.

17. For the reasons stated hereinabove, we hold that the School management has no right to lead evidence/additional evidence in the appellate proceedings filed under Section 9 of the MEPS Act before the School Tribunal. We answer the reference accordingly. Writ petitions be placed before the learned Single Judge, for appropriate orders.