The President, Hindi Education ... vs Chandrajeet Jaysing Suryawanshi ...
2016 Latest Caselaw 1920 Bom

                                              1




                                                                                
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                          BENCH AT AURANGABAD




                                                        
                             WRIT PETITION NO.10044 OF 2012

    1. The President,
        Hindi Education Society Ltd., 




                                                       
        Dhule,

    2. The President,
        School Committee, Dudhediya




                                             
        High School, Parola Road,
        Dhule
                                ig                                  PETITIONERS

    VERSUS 
                              
    1. Chandrajeet Jaysing Suryawanshi,
        Age-26 years, Occu-Service,
        R/o 69, Jay-Vijay Satsang
        Colony, Gontur Road, Deopur,
        Dist.Dhule,
      


    2. The Head Master,
   



        Dudhediya High School, 
        Parola Road, Dhule.

    3. The Education Officer (Secondary),





        Zilla Parishad, Dhule.                                      RESPONDENTS 

Mr.A.G.Talhar, Advocate for the petitioners. Mr.V.D.Sapkal, Advocate for respondent No.1.

Mr.S.N.Rodge h/f Mr.N.L.Choudhari, Advocate for respondent No.2. Mrs.S.S.Raut, AGP for respondent No.3.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 27/04/2016

ORAL JDUGMENT :

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1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner/Society is aggrieved by the judgment and order

dated 02/11/2012 delivered by the School Tribunal by which Appeal

No.24/2011 (Dhule) filed by respondent No.1 employee has been

allowed and he has been granted reinstatement with continuity and

full back wages by setting aside his order of termination dated

17/03/2011.

3. I have heard Mr.Talhar, learned Advocate for the

petitioner/Society and Mr.Sapkal, learned Advocate for respondent

No.1 employee at length.

4. Considering the conspectus of this matter, I am not required to

advert to their entire submissions.

5. The termination of the employee undisputedly is a stigmatic

termination and which is founded on two grounds. Firstly, that the

employee who has secured his employment by order dated

18/06/2007 claimed to be belonging to the Scheduled Tribe (in short,

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S.T.) Category and the post of Shikshan Sevak on which he has been

appointed is reserved for the S.T. category. Secondly, it has been

brought on record by the petitioner / Management that his

termination is also because he has committed a fraud by

interpolating a particular clause in his approval granted by the

Education Officer.

6.

There is no dispute as regards the process followed by the

petitioner while appointing the employee as a Shikshan Sevak

pursuant to the advertisement published in the newspaper. The

Education Officer has granted approval to the appointment of the

employee for 3 years from 18/06/2007. The purported fraud said to

have been committed by the employee is with regard to the said order

of approval dated 12/12/2008 wherein a remark that the Tribe

Validity Certificate should be produced only while seeking promotion.

7. The employee has worked from 18/06/2007 till 17/03/2011

and has therefore completed his 3 years of service as a Shikshan

Sevak. His Tribe claim, however, has been invalidated though the

said fact has not been brought on record in the appeal preferred by

the employee. The petitioners have seriously contended that the

employee suppressed the invalidation of his Tribe claim from the

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School Tribunal. Had that aspect been brought to the notice of the

Tribunal, his appeal could have been dismissed.

8. Per contra, Mr.Sapkal contends that notwithstanding the

invalidation of his Tribe claim, his service would be protected in the

light of the judgment of the Hon'ble Supreme Court in the matter of

Shalini Vs.New English High School Association and others (2013) 16

SCC 526. He further submits that the ground for termination of the

employee's service cannot be solely based on either non submission

of the Tribe Validity Certificate or on the ground of the invalidation of

his claim. There is no dispute that the Tribe Claim of the employee

has been invalidated on 03/01/2012 and the Tribunal has delivered

the impugned judgment on 02/11/2012.

9. It is submitted by Mr.Talhar on instructions that the

petitioner/Management would not hesitate from conducting a

departmental enquiry with regard to the fraudulent act of the

employee in relation to the approval order dated 12/12/2008. He

submits that this enquiry could have been conducted earlier, but as

the criminal case for the same reason is pending, the Management

decided not to proceed to initiate the disciplinary proceeding.

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10. It is trite law that departmental enquiry as well as the criminal

proceedings can be simultaneously conducted. Even acquittal from

the criminal case would not cause an impact on the outcome of the

departmental enquiry since both of them are conceptually distinct

and different. The School Tribunal has granted reinstatement with

continuity and full back wages to the employee since the

Management has not conducted an enquiry while terminating his

services.

11. Mr.Sapkal has strenuously contended that once the

termination of an employee is held to be illegal under the M.E.P.S.Act,

1977, notwithstanding whether the Management desires to conduct

an enquiry or not, the employee deserves to be reinstated in service

with continuity and full back wages. The Management thereafter

may initiate disciplinary proceedings by following the M.E.P.S.Act and

the M.E.P.S.Rules.

12. With regard to the view taken by the Hon'ble Supreme Court in

the case of Vidya Vikas Mandal and another Vs. Education Officer

and another, 2007(3) Mh.L.J. 801 and especially its directions in

paragraph Nos. 8 and 9, he submits that if an employee is suspended

during an enquiry which is subsequently vitiated for non compliance

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of the Rules, such an employee can be relegated back to his position

as a suspended employee if a denovo enquiry is ordered.

13. I do not find that the submissions of Mr.Sapkal on this count

can be sustained. In the Vidya Vikas Mandal case (supra), the

employee was not suspended during the pendency of the enquiry and

he continued to attend to his duties. Subsequently, he was dismissed

from service by way of punishment having been found guilty of all the

charges levelled upon him. The enquiry was held to be vitiated by the

Tribunal which ordered a fresh enquiry to be conducted by

reconstituting the Enquiry Committee. In doing so, he was granted

reinstatement in service. The learned Single Judge as well as the

learned Division Bench of this Court concluded that the relief of

reinstatement with continuity and back wages deserves to be

granted. The Hon'ble Supreme Court concluded that the Tribunal as

well as this Court had committed a serious error in ordering

reinstatement with back wages.

14. The conclusions of the Hon'ble Supreme Court in paragraph

Nos. 8 and 9 in the Vidya Vikas Mandal case (supra) read as under :-

"8. As rightly pointed out by the learned counsel for the appellants, Rule 37 (6), which is mandatory in nature, has not

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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.

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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 or by the President of the Management if so authorised 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) & (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."

15. Considering the two grounds put forth by the petitioners for

terminating the employee in the order of termination and the second

ground has been seriously pressed by the petitioners, I do not find

that this Court should express any opinion as to what should be the

contents of the charge sheet that the petitioner/Management may

issue for initiating disciplinary proceedings against the employee.

16. The fact however remains that the petitioner/Management

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shall have to conduct an enquiry at least with regard to the allegation

that the employee has played a fraud in relation to the approval order

dated 12/12/2008. The learned AGP points out that an affidavit

dated 23/02/2012 is placed on record by the Divisional Secretary

who was the Education Officer, Z.P. Dhule at the relevant time

contending that the said approval order has not been issued from

his office. This aspect can be gone into by the Enquiry Committee.

17. In the light of the above and considering the ratio laid down by

the Hon'ble Supreme Court in the Vidya Vikas Mandal Case (supra),

the impugned judgment of the School Tribunal is modified as

under :-

[a] Respondent No.1 employee shall be treated as having been notionally reinstated in service and placed under suspension from the date of termination which is 17/03/2011.

[b] He shall be entitled for suspension allowance as per rules and the petitioner/Management shall pay him the arrears of suspension within a period of 8 (eight) weeks from today. [c] The petitioner/Management shall pay the monthly suspension

allowance regularly during the pendency of the disciplinary proceedings.

[d] The petitioner/Management shall issue a charge sheet to the employee within 4 (four) weeks from today and conduct the disciplinary proceeding strictly in accordance with the MEPS Rules, 1981.

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[e] The petitioner/Management is at liberty to request the Education Department for reimbursement of the suspension

allowance paid to respondent No.1/employee provided the same can be granted strictly in accordance with Law.

18. This petition is, therefore, partly allowed and Rule is made

partly absolute in the above terms.

                                  ig                          ( RAVINDRA V. GHUGE, J.)
                                
      
   






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