Bombay High Court

Vijaysingh S/O Bhaidas Patil vs Shri Dhanorkar Adhunik Gram ... on 1 October, 2015

Bench: Ravi K. Deshpande

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR




                                                    
                        Writ Petition No.1200 of 2009


      Vijaysingh s/o Bhaidas Patil,




                                                   
      Aged - Major, Occupation - Nil,
      Residing C/o Smt. Shubhangi
      Jagannath Patil,
      Shikshak Colony,




                                         
      Karanja (Lad),
      District Washim.                                  ... Petitioner


           Versus
                             
                            
      1. Shri Dhanorkar Adhunik Gram
         Jeevan Shikshan Prasarak Mandal,
         through its Secretary,
         Dhanora (Kh.), Tahsil - Mangrulpir,
      


         District Washim.
   



      2. The Principal,
         Shri Dhanorkar Adarsha Secondary
         and Higher Secondary School,
         Dhanora (Khurd),





         Tahsil - Mangrulpir,
         District Washim.

      3. The Deputy Director of
         Education,





         Amravati Division,
         Amravati.

      4. The Hon'ble Presiding Officer,
         School Tribunal, Amravati
         Division, Amravati.                            ... Respondents




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      Shri P.B. Patil, Advocate for Petitioner.
      Shri Apurv De, Advocate for Respondent No.2.
      Shri   K.L.   Dharmadhikari,   Assistant   Government   Pleader   for 




                                                           
      Respondent No.3.



                   Coram : R.K. Deshpande, J.

Dated : 1st October, 2015

Oral Judgment :

1. This petition takes exception to the judgment and order

dated 27-6-2008 passed by the School Tribunal, Amravati, dismissing

Appeal No.21 of 2006 challenging the termination of the services of

the petitioner as a Junior College Teacher by an order

dated 18-7-2006, making the termination effective from 19-7-2006, on

the basis of the findings recorded by the Enquiry Committee for the

alleged acts of misconduct.

2. Undisputedly, the petitioner was a permanent employee and

was working as a Junior College Teacher. On 27-2-2006, the

charge-sheet along with the statement of allegations was issued to the

petitioner, containing the charges - (i) that he utilized the letter pad of

the School and prepared the false salary certificate under the forged

signature of the Principal, (ii) that he misbehaved with the superiors,

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(iii) that he tampered with the attendance register of the non-teaching

employees, (iv) willful negligence in performing duties, (v) remaining

absent without obtaining prior permission, (vi) delayed checking and

submission of the answer-sheets, (vii) dereliction of duty and

misleading the Management, thereby brining it to disrepute, and

(viii) delayed reporting on duty and leaving early without obtaining

prior permission. The Enquiry Committee was constituted consisting

of three persons, which included one representative of the

petitioner-employee. The summary of the proceedings were forwarded

to the petitioner on 10-7-2006 and the ultimate order of termination

was issued on 18-7-2006. making the termination effective from

19-7-2006.

3. The basic challenge before the School Tribunal was regarding

non-supply of the copies of depositions of eight witnesses recorded by

the Enquiry Committee, which has resulted in breach of Rule 37(2)(c)

and (d) of the Maharashtra Employees of Private Schools (Conditions

of Service) Rules, 1981 (for short, "the MEPS Rules"), causing

prejudice to petitioner. The petitioner, therefore, could not

cross-examine the witnesses and defend the proceedings effectively.

The Management had refused to supply the copies of depositions of

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the witnesses on the ground that there was no provision under the

MEPS Rules for supply of such copies, and in the ultimate proceedings

of enquiry forwarded to the petitioner, there contained the depositions

of all the witnesses. The School Tribunal has recorded the finding that

the petitioner has failed to establish the violation of the said provision.

The School Tribunal has held that the ample opportunity was given to

the petitioner to cross-examine the witnesses, but the petitioner had

refused to avail such opportunity and hence there was no question of

breach of the principles of natural justice.

4. Shri Patil, the learned counsel for the petitioner, has placed

reliance upon Rule 37(2)(c) and (d) of the MEPS Rules requiring the

Management to provide a reasonable opportunity to the petitioner to

defend his case. According to him, the "reasonable opportunity"

includes providing of the copies of depositions of the witnesses

examined by the Management in support of the charges. He has

further relied upon the decisions of the Apex Court in the cases of

State of Uttar Pradesh and others v. Saroj Kumar Sinha,

reported in (2010) 2 SCC 772, Kashinath Dikshita v. Union of India

and others, reported in AIR 1986 SC 2218, and The State of Punjab v.

Bhagat Ram, reported in AIR 1974 SC 2335. Shri Patil, the learned

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counsel, has further urged that the entire enquiry was vitiated on

account of breach of natural justice and the net result of it, would be

that the petitioner would be entitled to reinstatement in service, as has

been held by the Division Bench of this Court in the case of Hamid

Khan Nayyar s/o Habib Khan v. Education Officer, Amravati and others,

reported in 2004(4) Mh.L.J. 513.

5. Shri De, the learned counsel for the

respondent-Management, has disputed the proposition that the

"reasonable opportunity" contemplated by Rule 37(2)(c) and (d) of

the MPES Rules include the supply of copies of depositions, and

submits that there is no such requirement specifically interpreted

thereunder, and the Enquiry Committee was, therefore, right in

assigning the reason that the MEPS Rules do not provide for supply of

copies of depositions. He has heavily placed reliance on sub-rule (4) of

Rule 37 of the MEPS Rules and has urged that there was total

compliance in forwarding the copies of statements of witnesses along

with the entire proceedings to the petitioner. The petitioner was

thereafter called upon to furnish his explanation, which he had in fact

furnished and, therefore, the question of causing any prejudice to the

petitioner does not at all arise.

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6. Undisputedly, the Management had examined in all eight

witnesses in support of the charges so framed against the petitioner.

The petitioner had not cross-examined any of the witnesses, though he

was offered such cross-examination on every occasion. It is also not

disputed that during the course of the proceedings when the witnesses

were examined, the petitioner submitted an application initially on

25-4-2006 for supply of copies of depositions, which was rejected on

6-5-2006, holding that there was no such provision. The order of

rejection recites that after completion of the proceedings, the copies

shall be supplied. Again on 6-5-2006, the same request was made,

and for the same reasons, it was turned down in writing by the

Convener of the Enquiry Committee. Out of eight witnesses

examined, the deposition of one witness runs into 22 pages, whereas

those of other witnesses run into 3 - 4 pages each. It is an undisputed

position that after supply of the copies of depositions of the witnesses

examined by the Management, the petitioner was never given an

opportunity to cross-examine the witnesses.

7. In view of the aforesaid factual position, the first question,

which needs to be considered by this Court, is whether the

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requirement of supplying the copies of depositions of the witnesses

examined before cross-examination during the course of enquiry to the

petitioner is implicit under Rule 37(2)(c) and (d) of the MEPS Rules.

The said provision is reproduced below :

"37. Procedure of inquiry.

(2) (c) The Inquiry Committee shall see that every reasonable opportunity is extended to the employee for defending his case.

(d) (i) The Management shall have the right to lead evidence and the right to cross-examine the witnesses

examined on behalf of the employee.

(ii) The employee shall have the right to be heard in person and lead evidence. He shall also have the right to

cross-examine the witnesses examined on behalf of the Management.

(iii)Sufficient opportunities shall be given to examine all witnesses notified by both the parties."

In terms of clause (c), the Enquiry Committee has to see that every

reasonable opportunity is extended to the employee for defending his

case. Sub-clause (ii) of clause (d) states that the employee shall have

the right to be heard in person and lead evidence. It further states

that the employee shall have the right to cross-examine the witnesses

examined on behalf of the Management. Sub-clause (iii) therein states

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that sufficient opportunity shall be given to examine all the witnesses

notified by both the parties.

8. In the decision of the Apex Court in the case of Saroj Kumar

Sinha, cited supra, the question of non-supply of the copies of

documents, more particularly the statements of witnesses, was

considered. Following the decision of the Apex Court in the cases of

Bhagat Ram and Kashinath Dikshita, cited supra, the Court has held as

under :

"34. This Court in Kashinath Dikshita v. Union of India, has clearly stated the rationale for the rule requiring supply of

copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a government

servant. In that case the enquiry proceedings had been challenged on the ground that non-supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as

the statements of the witnesses at the preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority."

"35. In considering the importance of access to documents

in statements of witnesses to meet the charges in an effective manner this Court observed as follows: (Kashinath Dikshita case, SCC pp. 234-35, para 10)

"10. ... When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a

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reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of

the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, a cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are

incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the

disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: 'What

is the harm in making available the material?' and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time

and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself.

On the other hand by making available the copies of the documents and statements the disciplinary authority was

not running any risk. There was nothing confidential or privileged in it." (Emphasis supplied)

"36. On an examination of the facts in that case, the submission on behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations: (Kashinath Dikshita case, SCC p.236, para 12)

"12. Be that as it may, even without going into minute

details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he

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would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with

reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."

(Emphasis supplied)

"37. We are of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances

of the case. Non-disclosure of documents having a potential to cause prejudice to a government servant in the enquiry

proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant."

It has been held that reasonable opportunity to meet the charges in an

effective manner include supply of copies of the relevant statements of

the witnesses and documents to be used against the employee. In the

absence of the copies, an employee cannot prepare his defence or

cross-examination of witnesses and point out inconsistencies with a

view to show that allegations are incredible. It is thus clear that the

opportunity to defend is not merely an empty formality, but it has to

be an effective opportunity to cross-examine the witnesses and supply

of the copies of depositions of the witnesses recorded by the

Management so as to enable cross-examination of witnesses is to be

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considered the part and parcel of an effective opportunity to defend.

No one facing a departmental enquiry can effectively meet the charges

unless the copies of the relevant statements and documents to be used

against him are supplied.

9. In view of the aforesaid law laid down, it has to be held that

to extend reasonable and sufficient opportunity to the employee to

defend his case, as contemplated by clauses (c) and (d) of sub-rule (2)

of Rule 37 of the MEPS Act includes the requirement of supplying the

copies of depositions to the employee before cross-examination of

witnesses. Once a demand is made for supply of the copies of such

depositions, it becomes mandatory to supply it and failure to supply

deprives an employee, a right to avail an effective opportunity to

defend. No doubt, that the petitioner participated in the enquiry, but

had not cross-examined any witnesses examined by the Management

on the ground that he was not supplied with the copies of the

depositions of witnesses examined by the Management. This has

deprived the petitioner reasonable, sufficient or an effective

opportunity to defend his case causing serious prejudice and the

enquiry conducted stands vitiated on this count. The School Tribunal,

has, therefore, committed an error of law in accepting the stand of the

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Management that there was no provision to supply copies of

depositions of the witnesses.

10. The reliance upon sub-rule (4) of Rule 37 of the MEPS Act by

Shri De, the learned counsel for the Management, is still completely

misplaced. The said requirement is in addition to the requirement of

Rule 37(2)(c) and (d) of the MEPS Act, and even if there is

compliance of sub-rule (4) of Rule 37, that would not be a substitute

to cure the defect which has occurred due to non-supply of the copies

of depositions during the course of enquiry. There was complete

violation of Rule 37(2)(c) and (d) of the MEPS Act, and hence the

defence on the basis of sub-rule (4) of Rule 37 of the MEPS Act would

not be of any help to the Management.

11. In view of above, the School Tribunal has committed an error

in holding that there was compliance of the principles of natural

justice, as the petitioner was on every occasion offered

cross-examination of the witnesses. The School Tribunal has ignored

the fact that for want of copies of depositions of the witnesses

examined by the Management, the petitioner could not avail the

opportunity to raise an effective defence. The judgment and order

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impugned, therefore, cannot be sustained and it will have to be set

aside and the appeal filed by the petitioner before the School Tribunal

needs to be allowed.

12. The question is about the relief which is to be granted to the

petitioner. Obviously, when the entire enquiry is vitiated from the

stage of evidence and it is required to be set aside, the Management

can continue the enquiry from that stage. The necessary consequence

would be to set aside the order of termination and to direct the

reinstatement of the petitioner in service. It is not in dispute that the

petitioner was placed under suspension during the pendency of the

enquiry. In the Division Bench decision of this Court in the case of

Hamid Khan Nayyar, cited supra, relied upon Shri Patil, the learned

counsel for the petitioner, it has been held that after expiry of the

period of 120 days prescribed under Rule 37(2)(f) of the MEPS Rules,

the suspension ceases to operate and the employee is deemed to have

re-joined his duties without prejudice to the continuance of the

enquiry. In view of this, it will be open for the Management to decide

as to whether the petitioner is to be again placed under suspension or

to be continued under suspension if it proposes to hold an enquiry

against him. If the Management proposes to hold an enquiry and to

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place or continue the petitioner under suspension, then the petitioner

would be entitled to subsistence allowance as per the rules from the

date of the order of termination, i.e. from 19-7-2006, till the the

petitioner is continued under suspension. The question of back wages

to be paid to the petitioner can be left open to be decided by the

Management depending upon the outcome of the enquiry.

13. In the result, the petition is allowed. The judgment and

order dated 27-6-2008 passed by the School Tribunal, Amravati, in

Appeal No.21 of 2006 is hereby quashed and set aside. The said

appeal filed by the petitioner is allowed and the following order is

passed :

:: O R D E R ::

(1) The order of termination dated 18-7-2006 is hereby

quashed and set aside and the petitioner is directed to be

reinstated in service with effect from 19-7-2006.

(2) The Management shall decide within a period of one

month from today as to whether the petitioner is to be placed

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under suspension or is required to be permitted to resume the

duties.

(3) If the petitioner is placed under suspension, the

Management shall pay him subsistence allowance in accordance

with the rules from 19-7-2006 till this date within a period of sixty

days from today and shall continue to pay the same till the

conclusion of the enquiry.

(4) If the Management decides not to place the petitioner

under suspension but to permit him to resume his duties, then the

subsistence allowance till the date of passing of such order shall

be paid to him in accordance with the rules within a period of

thirty days from such order. Thereafter the petitioner shall be

entitled to regular salary of a Junior College Teacher till the

conclusion of the enquiry and the order of punishment, if any, to

be passed by the Management.