Bombay High Court
Pratibha Niketan Education ... vs Vijay Gangaram Khuniwad And ... on 11 April, 2016
Bench: R.V. Ghuge
This Order is modified/corrected by Speaking to Minutes Order dated 04/05/2016
WP/12327/2015
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12327 OF 2015
1. Pratibha Niketan Education Society,
Nanded, through its General Secretary,
Sakharam Digambarrao Mahajan,
Aged 73 years, Occ. Retd. Principal
R/o 53, Bhagyanagar, Nanded.
2. Pratibha Niketan High School,
Nanded, through its Head Master,
Shri Anand Kondiba Gaikwad,
Age 55 years, r/o Nanded. ..Petitioners
Versus
1. Vijay Gangaram Khuniwad,
Age 47 years, Occ. Teacher,
R/o Bhimai Building,
Uday Nagar, Nanded.
2. The Education Officer (S),
Zilla Parishad, Nanded. ..Respondents
...
Advocate for Petitioners : Shri Kulkarni Suresh M.
Advocate for Respondent 1 : Shri Vibhute S.M. h/f Shri Awate U.R.
AGP for Respondent 2 : Smt. Raut S.S.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: April 11, 2016
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition is
taken up for final disposal.
This Order is modified/corrected by Speaking to Minutes Order dated 04/05/2016
WP/12327/2015
4. The petitioner / management is aggrieved by the judgment and order
dated 21.8.2015 delivered by the School Tribunal in Appeal No.43 of 2014,
by which the said Appeal filed by the respondent employee has been
allowed.
5. Shri Kulkarni, learned Advocate for the petitioner has strenuously
assailed the judgment of the Tribunal on the ground that the petitioner has
played a systematic fraud on the management and got an appointment on
the post which is reserved for the S.T.category. He projected himself as
being belonging to the Rajgond tribe, which falls under the Scheduled Tribes
Category. The post was reserved for Scheduled Tribes. He joined
employment at the age of 23 years on 21.9.1990. He produced a tribe
certificate dated 28.6.1984 indicating that he belonged to the Scheduled
Tribe. Based on the said tribe certificate, he claimed to be belonging to
the Rajgond tribe and continued in employment.
6. On 18.5.2013, the State Government introduced a Government
Resolution based on which, those employees who had acquired employment
on an incorrect caste / tribe certificate, were permitted to surrender the
said certificate and if they were appointed prior to 15.6.1995, their services
would be protected. Shri Kulkarni submits that no sooner had the
Government Resolution been introduced, the employee promptly
surrendered his Rajgond tribe certificate since he knew that he did not
belong to Rajgond tribe. Thereafter, he produced another caste certificate
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dated 18.8.2010 indicating that he belonged to Kalal - 254 caste, which fell
under the Other Backward Classes (OBC).
7. Shri Kulkarni, therefore, voiced a grievance that the fact that the
employee possessed the caste certificate of Kalal dated 18.8.2010, the
fraud played by him is writ large on the face of the record. He did not
divulge this fact to the management and continued in employment on the
basis of the S.T. certificate. Had the Government Resolution dated
18.5.2013 not been introduced, he would have continued to act
fraudulently and would have continued in employment by suppressing the
fact that he already had acquired the caste certificate of Kalal dated
18.8.2010.
8. He further submits that the concerned employee was expected to be
truthful. It was not a case that his claim towards a particular caste / tribe
was rejected and only then he realized that he did not belong to the
Rajgond tribe. In fact, the school leaving certificate, which was issued to
the employee by the concerned school when he left the school on
31.12.1981, bears his caste as Kalal. This would, therefore, conclusively
establish that he knew that he belonged to the Kalal caste. Considering
these facts that the school leaving certificate indicated his caste as Kalal
and that he obtained the concerned Kalal caste certificate on 18.8.2010,
establish the fraud played by the petitioner.
9. He, therefore, submits that the reliance placed upon the reported
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judgments of the Honourable Apex Court and of this Court in the matters of
State of Maharashtra Vs. Milind and others [(2001) 1 SCC 4], Shalini Vs. New
English High School Association and others [Civil Appeal No.10997 of 2013]
and Arun Vishwanath Sonone and others Vs. State of Maharashtra and others
[2015(1) Mh.L.J.457] is misplaced. The School Tribunal has merely
considered the ratio laid down in the said judgments without taking note of
a material conclusion of the Apex Court in the case of Shalini (supra) and of
this Court in the Arun's case (supra) that the protection of service is not to
be extended to fraudulent employees. In the alternative, he submits that
the petitioner / management has enough material to prove a fraud against
the respondent / employee by conducting a departmental enquiry. He,
therefore, prays for setting aside the impugned judgment.
10. Shri Vibhute, learned Advocate appearing on behalf of the respondent
/ employee submits that the conduct of the employee does not indicate any
fraud played by him. He was only 17 years old and naturally a minor, when
his father obtained the tribe certificate on 28.6.1984 indicating that the
employee belonged to the Rajgond tribe. There was no eventuality of
applying for any post of Assistant Teacher in 1984. He applied for the post of
Assistant Teacher reserved for the S.T.category in 1990 and the petitioner
appointed him as an Assistant Teacher on 21.9.1990, when he was about 23
years and 8 months old.
11. Shri Vibhute submits that the employee cannot dispute that he had
received the caste certificate dated 18.8.2010, indicating that he belonged
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WP/12327/2015
to the Kalal Caste, falling in the O.B.C. He however, submits that when the
Government Resolution dated 18.5.2013 was introduced he became aware
of the scheme by which his service would be protected since he has relied
upon a tribe certificate obtained by his father and was not guilty of
acquiring the same when he was a minor. Hence he promptly surrendered
his tribe certificate and informed the management that he belonged to the
Kalal caste.
12.
He, therefore, submits that the employee deserves to be protected
by the judgments of the Honourable Supreme Court in the case of Milind
and Shalini (supra) and the Full Bench judgment of this Court in the case of
Arun Sonawane (supra).
13. In response to the proposal of the petitioner that the employee may
opt for voluntary retirement and he would be relieved by issuing a clean
certificate, he submits on instructions that the employee does not desire to
opt for voluntary retirement and is willing to face the departmental enquiry
as has been ordered by the School Tribunal.
14. I have considered the submissions of the learned Advocates. The
employee has not challenged the impugned judgment before this Court and
has thus accepted the same.
15. Issue is as to whether an exception can be carved out on the basis of
a fraud played by the respondent / employee in the light of the
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WP/12327/2015
observations in the judgment of the Honourable Supreme Court in the
matter of Shalini (supra) and the Full Bench judgment of this Court in the
matter of Arun Sonawane (supra).
16. The School Tribunal has allowed the Appeal partly and has set aside
the termination order. However, the petitioner / management has been
granted the liberty to conduct a departmental enquiry against the
employee for the reason that the petitioner has alleged a fraud having been
played by the respondent / employee which amounts to a charge and is,
therefore, required to be proved by following the due procedure laid down
in law. As noted above, the employee has not challenged the said judgment
and has rejected the offer of voluntary retirement put forth by the
petitioner on the ground that he is willing to face an enquiry.
17. Unlike the case of the employee in the matter of this very petitioner
Pratibha Niketan Education Society Vs. Ashok Sambhaji Dalpe and another
[Writ Petition No. 12486 of 2015] wherein the fraudulent behaviour of the
employee was writ large on the face of record, in the instant case I do not
find any similar circumstances to draw any conclusion at this stage with
regard to the purported fraud committed by the employee. I find it proper
to allow the petitioner to comply with the direction of the School Tribunal
in conducting a departmental enquiry as per Rules. Needless to state, the
enquiry committee shall decide the charges levelled upon the employee by
the petitioners, on their own merits.
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WP/12327/2015
18. In the cases of Shalini and Arun (supra), cases not involving fraud
have been protected. The School Tribunal, in its wisdom has, therefore,
protected the employee and at the same time has ensured that the
petitioner would follow the due process of law in the event it desired to
prove the charge of fraud against the employee.
19. As such, I do not find any reason to cause any interference in the
directions issued by the School Tribunal in clauses 2 and 3, below paragraph
No.59 of the impugned judgment. Needless to state, in the event the
petitioner desires to conduct an enquiry and desires to place the
respondent / employee under suspension pending disciplinary action, it is at
liberty to take recourse to Rules 33, 36 and 37 of the the Maharashtra
Employees of Private Schools (Conditions of Service) Rules, 1981. If an
application for suspension is moved by the petitioner to the Education
Officer, the said officer shall decide such an application on its own merits.
20. This petition is, therefore, disposed off with the above observations
and Rule is discharged.
21. Pending Civil Application, if any, stands disposed off.
( RAVINDRA V. GHUGE, J. )
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akl/d
