Meher Jaysing Darandale vs Rashtriya Pathshala High School ...
2016 Latest Caselaw 4304 Bom

                                          1               WP No. 10266/2015

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                       
                       BENCH AT AURANGABAD

                         WRIT PETITION NO.10266 OF 2015




                                               
      Shri Meher Jaysing Darandale
      Age: 41 Yrs., occu. Unemployed,
      R/o Flat No. 17, Meher Complex,




                                              
      Station Road, Ahmednagar,
      District Ahmednagar.                      =        PETITIONER

               VERSUS




                                      
      1)       Rashtriya Pathshala High School
               Near Sahakar Sabhagruha,
                             
               Station Road, Ahmednagar,
               Through its Principal.

      2)       Rashtriya Shikshan Mandal,
                            
               station Road, Ahmednagar,
               Through its President.

      3)       Education officer,
               Zilla Parishad, Ahmednagar,
      

               District Ahmednagar.             =        RESPONDENTS 
                                   -----
   



      Mr.AK Gawali, Advocate for Petitioner;

      Mr.SW Mundhe,AGP for State;





      Mr.RN   Dhorde,   Sr.Counsel,   h/for   Mr.   VR   Dhorde,   Adv. 
      for Respondent Nos.1 and 2.
                                  -----
                                   CORAM :  P.R.BORA, J.





       
      DATE OF RESERVING JUDGMENT :  29
                                        th
                                            June,2016
                                                     
       
      DATE OF PRONOUNCING JUDGMENT: 1
                                        
                                      st
                                          August,2016  
                                                         
      JUDGMENT:

1) Heard. Rule. Rule made returnable

forthwith and heard finally with consent of the

learned Counsel appearing for the parties.

2) The petitioner is aggrieved by the

Judgment and Order dated 1st August, 2015

delivered by the School Tribunal, Aurangabad,

(for short, the Tribunal) in Appeal No.40/2014 by

which the appeal has been dismissed. The

petitioner had challenged the order of

termination dated 22nd May, 2013 in the aforesaid

appeal.

3) It was the contention of the petitioner

before the Tribunal that his services have been

illegally terminated. It was his further

contention that some false and frivolous charges

were levelled against him and a farce of

conducting an enquiry was created by the

respondent/management. It was the further

contention of the petitioner that the Enquiry

Committee, which is said to have conducted the

enquiry into the charges levelled against the

petitioner, was not constituted as per the MEPS

Rules and more particularly Rule 36 thereof. It

was his further contention that the procedure, as

prescribed under Rule 37 of the MEPS Rules, was

also not followed. It was the grievance of the

petitioner that the principles of natural justice

were not followed in conducting the aforesaid

enquiry. One more objection was raised by the

petitioner that the report of enquiry, on the

basis of which services of the petitioner were

terminated, was signed by only one member of the

Enquiry committee and as such, it was, in fact,

not an enquiry report in the eyes of law and it

could not have been acted upon. The petitioner

had alleged that since the petitioner had opposed

for transfer of the school run by the Respondent

management, at some different place, he has been

victimized.

4) As against the allegations made by the

petitioner, it was the contention of the

Respondent management in the appeal before the

Tribunal that there were serious complaints

against the petitioner and the Respondent

management was, therefore, constrained to conduct

the enquiry against the petitioner in regard to

the said complaints. According to Respondent

management, the enquiry against the petitioner

was conducted strictly in accordance with law and

adhering to Rules 36 and 37 of the MEPS Rules.

It was the further contention of the Respondent

management that the principles of natural justice

were followed at every stage of enquiry. It was

also the contention of the Respondent management

that since the representative of the petitioner

in the enquiry committee refused to sign the

report of enquiry, the said report was submitted

to the Competent Authority under the signatures

of two members of the enquiry committee. It was

also the contention of the Respondent management

that since the petitioner was found guilty of the

charges levelled against him in the said enquiry,

the Respondent management resolved to dismiss the

petitioner from services.

5) The learned School Tribunal, after

having assessed the evidence brought before it,

did not find any substance in the appeal filed by

the petitioner and was, therefore, pleased to

dismiss the appeal. Aggrieved thereby, the

petitioner has filed the present petition.

6) Shri A.K.Gawali, learned Counsel

appearing for the petitioner assailed the

judgment of the Tribunal on several grounds. It

was the contention of the learned Counsel that

the Tribunal did not appreciate the provisions in

the MEPS Rules in so far as conduct of enquiry

against an employee is concerned. The learned

Counsel submitted that the Tribunal seems to have

implicitly relied upon the contentions raised by

the management and has accordingly dismissed the

appeal filed by the petitioner. The learned

Counsel submitted that there were apparent lapses

in the constitution of the enquiry committee as

well as in following the procedure in conduction

of the enquiry and all such infirmities were duly

brought to the notice of the Tribunal, however,

the Tribunal did not appreciate the said

objections and has on erroneous grounds dismissed

the appeal filed by the present petitioner.

7) Relying upon the judgment of this court

in the case of Shah Babu Education Society, Patur

and Anr. Vs. Presiding Officer, School Tribunal

Amravati and Aurangabad Division, Aurangabad, and

Anr. - 2006 (6) Mh.L.J. 547, the learned Counsel

submitted that the provisions of Rule 36(1) of

MEPS Rules contemplate authorization by

management in favour of the Chief Executive

Officer. However, no such authorization was

given in the instant matter, in absence of which,

the entire enquiry proceedings are liable to be

vitiated. The learned Counsel further submitted

that there was no valid resolution for

appointment of representative of the management

on the enquiry committee constituted for

conducting the enquiry against the petitioner.

The learned Counsel further submitted that the

Convener of the enquiry committed was also not

appointed. According to learned Counsel, these

were the fatal defects in the constitution of the

enquiry committee and the report of enquiry

prepared and submitted by such enquiry committee

could not have been acted upon and the Tribunal

ought to have vitiated the enquiry on the said

count.

8) The learned Counsel further submitted

that the enquiry report is admittedly signed by

only one member of the enquiry committee;

whereas, the law provides that the report of

enquiry must be signed by all the three members

of the enquiry committee. In order to support

his arguments, the learned Counsel relied upon

the judgment of the Hon'ble Apex Court in the

case of Vidya Vikas Mandal and Anr. Vs. Education

Officer and Anr. - 2007 (3) Mh.L.J. 801.

9) The learned Counsel further submitted

that though certain documents were demanded by

the petitioner, the same were not supplied to him

till conclusion of the enquiry. The learned

Counsel further argued that in view of the

charges levelled against the petitioner, the

Respondent management was bound to place on

record the Annual Confidential Reports (ACRs) of

the petitioner, but, such reports were not

produced on record despite specific demand was

made by the petitioner in that regard. The

learned Counsel submitted that on all these

counts, the enquiry was liable to be vitiated and

consequently, the order of termination, based on

such enquiry, was also liable to be vitiated.

However, the Tribunal overlooked all these

aspects and has thus grossly erred in dismissing

the appeal filed by the petitioner. The learned

Counsel, therefore, prayed for setting aside the

order passed by the Tribunal. Consequently, he

prayed for reinstatement of the petitioner by

setting aside the order of termination passed by

the Respondent management.

10) Shri R.N.Dhorde, learned Senior Counsel

appearing for Respondent Nos.1 to 3, resisted the

submissions advanced on behalf of the petitioner.

The learned Counsel submitted that the enquiry

committee constituted for conducting the enquiry

into the misconduct of the petitioner was

constituted strictly in accordance with the

provisions of MEPS Rules and the entire enquiry

proceedings were conducted adhering to the

procedure as laid down in Rule 37 of the MEPS

Rules.

. The learned Counsel invited my attention

to the Resolution No.3, whereby Shri Trimbakrao

Purnale, president of the School management was

authorized for the purposes of issuance of

charge-sheet to the petitioner; to accept the Say

and explanation received in that regard from the

petitioner; to place it before the School

management; to act on behalf of the school

management; to implement the decision of the

school management and to do all necessary acts as

regards to the enquiry to be conducted against

the petitioner. The learned Counsel submitted

that in the meeting of the Managing Committee of

the Respondent school held on 23rd May, 2013, vide

Resolution No.2, passed in the said meeting, Shri

Vidyadhar Kakde was appointed as the member from

amongst the members of the management on the

enquiry committee constituted for conducting the

enquiry against the petitioner. The learned

Counsel further submitted that in the said

meeting, it was also resolved to appoint Shri

Dattatraya Aarote, to be a member of the enquiry

committee since he is a State Awardee Teacher.

The learned Counsel submitted that the names of

Shri Vidyadhar Kakde and Dattatraya Aarote were

duly communicated to the petitioner. The learned

Counsel further submitted that the petitioner had

chosen one Shri Sunil M.Bande to be his

representative on the enquiry committee and

accordingly, the aforesaid three members, viz.

Shri Vidyadhar Kakade; Shri Dattatraya Aarote and

Shri Sunil M.Bande, conducted the enquiry against

the petitioner by following the procedure

prescribed in Rule 37 of the MEPS Rules.

11) The learned Sr.Counsel further submitted

that the enquiry report was singed by two members

of the enquiry committee and was submitted within

time to the Disciplinary authority. The learned

counsel further submitted that the representative

of the present petitioner has independently

submitted a separate report, however, the same

was not submitted within the stipulated period of

limitation.

. Relying upon the judgment of this Court

in the case of Chandreshwar Shikshan Sanstha and

Anr. Vs. Ramesh Dagdurao Deshmukh and Ors. - 2010

(2) All MR 218, the learned Counsel submitted

that the report and findings of two members,

being a majority view, has to be accepted by the

management. The learned Counsel submitted that in

the aforesaid judgment this Court has considered

the judgment of the Hon'ble Apex court in the

case of Vidya Vikas Mandal (cited supra). The

learned Counsel further submitted that the School

Tribunal has considered all these aspects and has

passed a well-reasoned order. The learned counsel

further submitted that no interference is

warranted in the impugned judgment. He,

therefore, prayed for dismissal of the petition.

12) After having heard the learned Counsel

appearing for the respective parties, it is

transpired that when the petitioner has raised

serious objections as regrids to the constitution

of the enquiry committee and the manner in which

the enquiry was conducted against him, the

respondent management has taken a definite stand

that the enquiry committee was constituted

strictly in terms of Rule 36 of the MEPS rules

and the enquiry was conducted adhering to the

procedure laid down in Rule 37 of the said Rules.

13) As provided in Rule 36(2) of the MEPS

rules, the enquiry shall be conducted by an

enquiry committee in the following manner, that

is to say, - (a) in the case of an employee, -

(i) One member from amongst the

members of the Management to be nominated by the Management, or by the

President of the Management if so authorised by the Management, whose name shall be communicated to the Chief

Executive Officer within 15 days from the date of the decision o the Management;

(ii) ig one member to be nominated by the employee from amongst the employees

of any private school;

(iii) one member chosen by the Chief

Executive Officer from the panel of teachers on whom State/National Award

has been conferred.

14) It was sought to be canvassed by Shri

Gawali, learned Counsel appearing for the

petitioner that since there was no resolution of

the school management nominating Shri J.B.Gawade

as the representative of the management on the

enquiry committee constituted for conducting the

enquiry into the alleged misconduct of the

petitioner, the constitution of the enquiry

committee itself was illegal and the enquiry

conducted by such committee, whose constitution

itself was illegal, is liable to be vitiated and

cannot be acted upon.

15) The objection so raised by the learned

Counsel appears to be without any substance. As

has been pointed out by Shri Dhorde, the learned

Senior

counsel appearing for the

respondent/management, Shri J.B.Gawade was not

the member of the enquiry committee, which

conducted the enquiry against the petitioner, but

was appointed by the school management as the

Presenting Officer for the purposes of the said

enquiry. The letter dated 24th June, 2013, copy of

which was also placed on record of the school

tribunal, demonstrates that Shri J.B.Gawade was

appointed by the school management for the

purposes of filing the documents and to adduce

the oral and documentary evidence before the

enquiry committee on behalf of the

respondent/institution and was not the member of

the enquiry committee.

                                                                           
      16)              The   Resolution   No.2   passed   in   the 




                                                   
      Managing                 Committee        meeting            of            the 

respondent/institution held on 23rd May, 2013

reveals that one Shri Vidyadhar Jagannath Kakde

was appointed as one of the members in the

enquiry committee from amongst the members of the

management. In the said resolution itself one

Shri Dattatraya Balchandra Aarote was nominated

on the enquiry committee from amongst the panel

of teachers on whom State Award has been

conferred. The material on record further

reveals that the names of Shri Vidyadhar Kakade

and Dattatralaya Aarote were duly communicated by

the respondent/management to the Convener of the

enquiry committee as well as to the

petitioner/employee.

17) Similar objection was raised by Shri

Gawali in making submission that the report of

enquiry has been signed by only one member of the

enquiry committee. It was the contention of Shri

Gawali that the report of enquiry was not bearing

the signature of Shri Gawade, who was appointed

as the management representative in the said

enquiry committee, but was signed by only one

member, viz. Dattatraya Balchandra Aarote. It

was also contended by Shri Gawali that Shri

Vidyadhar Kakade was not supposed to sign the

said enquiry report since he was the Convener of

the enquiry committee and not the member of the

enquiry committee.

18) The contention so raised by Mr.Gawali is

equally fallacious. As discussed herein above the

school management had appointed Shri Vidyadhar

Kakade as member on the enquiry committee from

amongst the members of the school management and

Shri Gawade was only asked to work as a

Presenting Officer for the school management in

the aforesaid enquiry. In the circumstances,

signature of Gawade was not at all required on

the report of enquiry, he not being the member of

the enquiry committee. As noted earlier, Shri

Vidyadhar Kakade was duly appointed by the

respondent/management as the member of the

enquiry committee from amongst the member of the

Managing Committee of the respondent/school. The

enquiry was conducted by three-members committee

consisting of Shri Vidyadhar Kakade; Shri

Dattatraya Aarote and Shri Sunil Bande. The

enquiry papers clearly reveal that the aforesaid

were the three members of the enquiry committee

and Shri Gawade was never the member of the said

committee. The petitioner has unnecessarily

attempted to create confusion when the material

on record clearly shows that Shri Vidyadhar

Kakade was member of the enquiry committee and

not Shri Gawade.

19) It was also sought to be canvassed on

behalf of the petitioner that no Chief Executive

officer was duly appointed for the purposes of

conducting the enquiry against the petitioner. It

was the further contention of the learned counsel

for the petitioner that as provided in MEPS

rules, there must have been specific resolution

appointing Chief Executive Officer, in absence of

which, no further proceedings could have been

conducted against the petitioner. The objection

so raised must also be rejected having regard to

the fact that in the managing committee meeting

of the respondent/institution held on 7th April,

2013, vide Resolution No.3, Shri Trimbak

Kashinath Purnale, the president of the

respondent/institution was authorized for the

purposes of issuance of charge sheet to the

petitioner to accept the reply, which may be

received from the petitioner and to carry on the

further proceedings as per the decision of the

management committee. Shri Trimbak Purnale was

thus appointed as Chief Executive officer.

20) Section 2(c) of the MEPS Rules defines

"Chief Executive Officer", which means, the

Secretary, Trustee, Correspondent or a person by

whatever name called who is empowered to execute

the decisions taken by the Management. By

appointing Shri Trimbak Purnale, the president of

the respondent/institution by taking a Resolution

in that regard in the meeting of the management

committee, the respondents have duly complied

with the necessary requirement.

21) The further contention raised on behalf

of the petitioner that somebody must have been

appointed as Convener of the enquiry committee,

which according to the petitioner, was not

appointed while conducting the enquiry against

the petitioner, is also baseless and deserves to

be rejected. As provided in Rule 36 of the MEPS

Rules the nominee of the president or as the case

may be, a person appointed by the school

management has to act as Convener of the enquiry

committee. In the instant case, Shri Vidyadhar

Kakade was appointed as a management member on

the enquiry committee and he has thus rightly

performed his duties as convener of the said

enquiry committee.

. The another objection raised by the

petitioner that the documents demanded by the

petitioner, since were not supplied to him, the

enquiry cannot be said to have been conducted

adhering to the principles of natural justice,

also does not carry any substance in view of the

fact that the documents, production of which was

sought by the petitioner, were not relevant for

the purposes of conducting the enquiry into the

misconduct alleged against the petitioner. The

learned School Tribunal in the impugned judgment

has elaborately dealt with this aspect.

22) It was also the contention of the

learned Counsel appearing for the petitioner that

considering the misconduct alleged against the

petitioner, the Annual Confidential Reports

pertaining to the petitioner must have been filed

on record so as to ascertain whether anything is

reflected in the said report as about the

misconduct alleged against the petitioner. As

was argued by the learned counsel, in absence of

such Annual Confidential Reports, the petitioner

was liable to be exonerated from the charges

levelled against him. This aspect has also been

dealt with by the learned School Tribunal. I do

not see any force in the argument so advanced. It

is the matter of record that in the enquiry

conducted against the petitioner, the witnesses

examined by the respondent/management have

elaborately deposed about the misconduct of the

petitioner and nothing has been brought on record

by the petitioner so as to discard or disbelieve

the version of the said witnesses. In such

circumstances, merely because the Annual

Confidential Reports were not placed on record,

no such inference can be drawn that the

petitioner was innocent and no misconduct as

alleged was ever committed by him.

23) One more objection was raised on behalf

of the petitioner and which according to the

petitioner was most material objection, that the

enquiry report was signed by only one member of

the enquiry committee. In this regard I have

already made some discussion in earlier

paragraphs of this judgment. The objection so

raised by the petitioner is without any merit.

The document on record shows that the enquiry

proceedings were concluded on 15th May, 2014.

Copies of the record and proceedings of the

enquiry conducted against the petitioner are

placed on record. The proceedings recorded on 15 th

May, 2014 clearly reveal that the enquiry was

duly completed into the charges levelled against

the petitioner and the report writing was also

undertaken by the Committee. The record and

proceedings of the said date further demonstrate

that though the conclusions were arrived at,

since Shri Sunil M. Bande, the representative of

the petitioner, was dissenting with the said

conclusions he refused to put his signature on

the said report and declared his intention to

submit an independent report later on. In the

circumstances, eventually the report was signed

by remaining two members of the

enquiry committee, viz. Shri Vidyadhar Kakade and

Dattatraya Aarote.

24) Placing reliance on the judgment of the

Hon'ble Apex court in the case of Vidya Vikas

Mandal (cited supra), it was vehemently argued on

behalf of the petitioner that the report of

enquiry, not signed by all the members of the

enquiry committee, was not a report of enquiry in

the eyes of law and no further action could have

been taken on the basis of such report. In fact,

the law laid down in the aforesaid judgment

cannot be interpreted in the manner as was

interpreted by the learned Counsel for the

petitioner. Moreover, this Court in the case of

Shri Chandreshwar Shikshan Sanstha (cited supra)

has distinguished the aforesaid judgment and has

in clear terms held that the report on findings

of two members, being a majority view, should be

accepted by the management.

25) In the instant case, the material on

record clearly evinces that the representative of

the petitioner on the enquiry committee namely

Shri Sunil Bande had refused to put his signature

on the report of enquiry and has decided to

submit a dissenting report. However, the report,

which was ultimately submitted was bearing the

signatures of other two members of the enquiry

committee viz., Shri Vidyadhar Kakde and Shri

Dattatraya Aarote, who have held the petitioner

guilty for the misconduct alleged against him.

In the circumstances, even though Shri Sunil

Bande, the representative of the petitioner on

the enquiry committee, might have submitted

another report, thereby exonerating the

petitioner from the charges levelled against him,

in view of the judgment of this Court in the case

of Shri Chandreshwar Shikshan Sanstha (supra) the

majority decision would prevail. Thus, the

objection so raised is also liable to be turned

down.

26) The further argument that since the

charges levelled against the petitioner were of

trifle nature, even if the said charges are held

to have been proved against the petitioner, no

major penalty could have been imposed on the

petitioner of dismissing him from the services,

has also not impressed me. Perusal of the charges

levelled against the petitioner, reveals that

there were serious complaints against the

petitioner from the teachers as well as from the

students. All such allegations were duly proved

in the enquiry through the evidence of respective

witnesses. Having regard to the said charges and

the evidence, which has come on record

substantiating the said charges, it does not

appear to me that the punishment of dismissal

awarded to the petitioner is disproportionate.

The petitioner was working as Peon. The

allegations levelled against him were that he had

threatened the teachers, openly insulted them,

interfered in the administration, threatened the

students, snapped photographs of one 10th std.

Student while he was urinating. All these charges

are serious.

27) After having considered the entire

material on record, it does not appear to me that

the learned School Tribunal has committed any

error in dismissing the appeal filed by the

petitioner. The petition is without any merit

and deserves to be dismissed and it is

accordingly dismissed. Rule discharged. Pending

Civil Application, if any, stands disposed of.

sd/-

(P.R.BORA)

JUDGE

bdv fldr 26.7.16