Shri Chandrashwar Shikshan ... vs Ramesh Dagdurao Deshmukh
2009 Latest Caselaw 83 Bom

                                       1




                                                                             
    IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                     
                  NAGPUR BENCH AT NAGPUR.

                   WRIT PETITION NO.2277 OF 1996.




                                                    
    PETITIONERS:  1. Shri Chandrashwar Shikshan Sanstha,
                         Dongarkinhi, Tq.Malegaon,Distt.Akola,
                         through its President, Shri B.M.Agrawal,




                                          
                         
                     2. D.G.Wakode, 
                            
                         aged about 35 years, Occu: Servide, resident of 
                         Dongarkinhi, Tq.Malegaon, Distt.Akola.
                           
                                 VERSUS

    RESPONDENTS: 1. Ramesh Dagdurao Deshmukh,
                     aged about 37 years, Occu: Agrist.
          


                     Resident of Dongarkinhi, Tq.Malegaon,
                     Distt.Akola.
       



                     2. Education Officer (Secondary)
                         Zilla Parishad, Akola.





                     3. Deputy Director of Education,
                         Amravati Division, Amravati.

                     4. Presiding Officer, School Tribunal,





                         Amravati Division, Amravati.

                      5. The State of Maharashtra,
                          through the Advocate General of Maharashtra
                          Bombay.
    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-=-=-=-=-=-=
    Shri  S.P.Kshirsagar, Advocate for the petitioners.
    Shri A.Shelat and Shri C.A.Joshi, Advocate for respondent no.1.
    Smt. I.L.Bodade, AGP for respondent nos.2 to 4.
    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=



                                                     ::: Downloaded on - 09/06/2013 15:24:39 :::
                                                2




                                                                                        
                             CORAM :    C.L.PANGARKAR,J.

                             DATED:     14th   DECEMBER, 2009.

    ORAL JUDGMENT:




                                                               

1. This writ petition is preferred by the Management of the

School feeling aggrieved by the order of School Tribunal directing

reinstatement of respondent no.1.

2. Facts giving rise to the petition are as follows -

The petitioner runs a school known as Narbadabai Agrawal

Vidyalaya at Dongarkinhi. Respondent no.1 was initially appointed

as Physical Training Instructor on 23/6/1986. He worked as such

till 1993. With Effect from 1/7/1993, he came to be appointed as

a Headmaster of the school. It is alleged that the behaviour of

respondent no.1 was not proper. He was not following the

direction issued by the Management. These acts of the respondent

were that of insubordination. It is also alleged that respondent

no.1 as a Headmaster of the School misappropriated large sums of

money. Since it was found that respondent no.1 had

misappropriated money and his behaviour was not proper, it was

decided by the Management to hold a departmental enquiry

against him. Accordingly, a Committee was constituted to hold the

departmental enquiry. The President of the institution was the

convener of the said Committee while two others were the

teachers, one of whom was a State Awardee teacher. The

Convener submitted the report to the Management of the

Committee. After holding the enquiry, he recommended the

dismissal of respondent no.1. Accordingly, resolution was passed

by the Management deciding to terminate the services of

respondent no.1. The services of respondent no.1 were accordingly

terminated w.e.f. 28/10/1994.

3. Feeling aggrieved by this termination, respondent no.1

preferred an appeal under Section 9 of the Maharashtra Employees

of Private Schools (Conditions of Service) Regulation Act, 1977 to

the School Tribunal. The School Tribunal found that the

termination was improper and directed the reinstatement of

respondent no.1. Feeling aggrieved thereby, this writ petition is

filed.

4. I have heard the learned counsel for the petitioners as well as

the respondents.

5. The main ground upon which respondent no.1 had

challenged his termination before the School Tribunal was that

enquiry was not held properly. Opposing this contention of

respondent no.1, the petitioner in the written statement before the

School Tribunal made following averements.

"It is respectfully submitted that the respondent society conducted an enquiry strictly in terms of the provisions contained in Rules 36 and 37 of Rules

1981."

"That when the enquiry has been conducted strictly

in accordance with the law, rules of natural justice and by affording all possible and reasonable opportunities to the appellant. Therefore, no interference at the hands of this Hon'ble Court is called for nor necessary in respect of the impugned termination order of the appellant which is perfectly

legal, valid and justified."

6. Now, the very same management i.e. the petitioner makes a

submission to set aside the finding of enquiry and makes a request

to remit the matter back to the Inquiry Committee for fresh enquiry.

7.

Shri Kshirsagar, learned counsel for the petitioner/

Management submits that the enquiry report submitted by the

convener of the Committee is vitiated as the same is not in

accordance with the mandate of the Supreme Court in a decision

reported in 2007(3) Mh.L.J., 801 (Vidya Vikas Mandal and

anr. ..vs.. Education Officer and anr.). He submits that there is only

one report of convener which the petitioner Society had acted upon

and the Society had not at all received the other two reports. He

also submits that there ought to be a combined report of all three

members as is mandated by the Supreme Court in Vidya Vikas

Mandal's case. The Supreme Court in the said decision observes as

under -

8. As rightly pointed out by the learned counsel for the appellants, Rule 37(6), which is mandatory in

nature, has not been strictly complied with. The

Inquiry Committee comprising of three members, as already noticed, only one member nominated by the Management has submitted his Inquiry report within

the time stipulated as per Rule 37(6) and admittedly, the other two members nominated by the employee

and an independent member have not submitted their report within the time prescribed under Rule

37(6). However, the learned Judges of the Division Bench, though noticed that the two members out of

three found the employee not guilty, failed to appreciate that the said findings by the two members

of the committee were submitted after the expiry of

the period prescribed under Rule 37(6). In our opinion, the report submitted by individual members is also not in accordance with the Rules. When the

Committee of three members are appointed to inquire into a particular matter, all the three should submit their combined report whether consenting or

otherwise. Since the report is not in accordance with the mandatory provisions, the Tribunal and the learned Single Judge and also the Division Bench of the High Court have committed a serious error in accepting the said report and acted on it and thereby ordering the reinstatement with back wages. Since

the reinstatement and back wages now ordered are

quite contrary to the mandatory provisions of Rule 37(6), we have no hesitation in setting aside the order passed by the Tribunal, and learned Single

Judge and also of the Division Bench of the High Court. In addition, we also set aside the order passed

by the Management based on the report submitted by the single member of the Committee, which is also

quite contrary to the Rules.

9. In view of the order now passed by this Court, the Rule 36(2)(a) is now to be invoked and as per the

said Rule, one member from amongst the members

of the Management is to be nominated by the Management, and one member is to be nominated from amongst the employees of any private school

and the third member to be chosen by the Chief Executive Officer from the panel of teachers on whom State/National Award has been conferred. We direct

the Management of the School to constitute the Committee in accordance with sub-rules (i), (ii) and

(iii) of Rule 36(2)(a) to go into the matter afresh. The Respondent no.2, the employee, will be now treated under suspension and he will be entitled to the subsistence allowance as per rules with effect

from the date of termination of his services. The

inquiry shall be completed by the Committee within a period of six months from the date of their nomination/constitution.

8. As observed, the argument of Shri Kshirsagar, learned counsel

for the petitioners, is two-fold; first that the other two members did

not submit the report at all to the management of school and the

second is that the report of all three should be combined. Shri

Kshirsagar submits that since the Management did not receive the

other two reports, it had acted upon only one and that cannot be

done by the Management and therefore, it is necessary to direct a

fresh enquiry in the matter. The submission does not appear to be

correct at all, since it appears to be against pleadings and the

record. I may reproduce here paragraph no.7 of the written

statement of the petitioner before the school Tribunal.

7. In reply to sub-ground-4, it is submitted that the respondent no.1 management has already considered the enquiry reports of the convenor and two other members and after judging the pros

and cons and after taking the most reasonable

view, it has resolved to terminate the services of the appellant. Contents of sub-ground (5) are emphatically denied. It is submitted that the

opportunities provided under the law were afforded to the appellant. The termination order

has been properly issued by the President of the Respondent no.1 in terms of the Resolution

passed by the management. Hence, rest of the contents of sub-ground (6) are hereby

emphatically denied. It is strictly denied as alleged in sub-ground (7) that the enquiry was in

any way illegal and the charges were not

sufficient to impose the major penalty of termination. It is denied that the termination is in any way illegal and deserves to be quashed but on

the contrary, the termination being perfectly legal and valid, the same is to be confirmed and deserves to be confirmed at the hands of this

Hon'ble Court. In reply to sub-ground (8) it is submitted that the grounds which have not been urged in the appeal Memo, cannot be argued directly by the appellant. Contents of sub-ground (9) are also denied.

9. Not only there is such pleadings, there is also a resolution of

the society by which services were decided to be terminated. The

relevant portion of resolution no.2 dated 27/10/1994 is as

follows -

"Proposal - In today's meeting, ShriG.H.Agrawal,

the Secretary of the Society has proposed that

the findings and decisions given by the Enquiry Committee constituted under Rule 36 of

Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 after completing the work of enquiry into the charges

levelled against Shri R.D.Deshmukh, the

Headmaster in Smt.Narmadabai Agrawal Vidyalaya run by the Society are given different by three persons. Today's meeting is of the

opinion that the findings and decision given by the convener/observer of the Enquiry Committee are more reasonable. On the contrary, the

findings and decisions given by other two members of the Enquiry Committee do not seem to be proper at all. However, the findings and decision given by the State Award Winner Headmaster Shri Dahibhate are not coherent. Similarly, the findings and decision given by Shri

Lahore, the representative of Headmaster Shri

Deshmukh are one sided and not based on the merits and demerits."

10. This resolution is also filed on record of the School Tribunal.

If the pleadings and the above resolution are read as they are, it

cannot lie in the mouth of the petitioner to say that it did not

receive the reports of the other two members of the Inquiry

Committee. The Resolution clearly says how and why the

conclusions arrived at by the other two members cannot be

accepted and how they are wrong. The Resolution clearly suggests

that both the reports of Shri Dahibhate and Shri Lahore were

considered word by word and were rejected. This clearly indicates

that the other two reports were received by the Management.

They were placed before the Managing Committee. The Managing

Committee considered the findings in those reports and then

passed a resolution. For this reason, the above submission of Shri

Kshirsagar needs to be rejected and it must be held that the

Management did receive the report and they were duly considered.

11. The next submission that is made on the basis of Vidya Vikas

Mandal's Case is that the report is not in accordance with the

mandate of the Supreme Court, in as much as, it is not a combined

report. He interprets the word "combined" to mean that there

ought to be single report of all three together. The Supreme Court

nowhere says that there ought to be single report at all. In fact, in

the instant case, the report can strictly be said to be combined. It

appears from the report of the convener that he received other two

reports and after taking stock of those two reports, he incorporated

those findings of other two reports in his report and submitted his

report to the Management. The report of the convener discusses

the report of the other two and he even observes why the finding

in the other two reports should not be accepted. Thus, what the

convener does is that he submits a report which also contains a

finding recorded by the other two. The report in the instant case is

certainly a combined report. Even if the word combined report is

to be interpreted in that sense, the mandate is certainly followed.

Shri Kshirsagar, learned counsel, placed before me the following

decision to urge that the High Court cannot distinguish the

judgment of the Supreme Court and refuse to follow the mandate.

1. (2007)14 SCC 165 (Special Deputy Collector

(LA) ..vs.. N.Vasudeva Rao and others.

2. (1997) 6 SCC 450 (Dwarikesh Sugar Industries Ltd. ..vs.. Prem Heavy Engineering Works (P) Ltd. and

anr.

3.(1996) 6 SCC 665 (J.K.Industries Ltd. and others ..vs.. Chief Inspector of Factories and Boilers and others)

12. I have not tried to distinguish the Supreme Court judgment at

all nor have I tried to interpret it. I find that the mandate of the

Supreme Court is, in fact, followed in the present case.

13. The other two members have clearly exonerated respondent

no.1 and the convener as disagreed with them. The convener is in

minority. His report and findings, therefore, could not have been

accepted. On the other hand the report and findings of the other

two members, who exonerate respondent no.1 being in majority,

should have been accepted by the management. The School

Tribunal has rightly allowed the appeal of respondent no.1. There

is no substance in the writ petition. The same is, therefore, liable

to be dismissed. Costs quantified at Rs.5000/- to be paid by the

convener of the Enquiry Committee personally.

JUDGE.

chute