Bombay High Court
New Grand Education Society Thr. ... vs Rajesh Nashiket Dongre on 1 December, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 4478 OF 2015
PETITIONERS : 1] New Grand Education Society,
Sanjay Maidan, Indora, Kamptee Road,
Nagpur, through its Vice President
2] Smt. Kamlabai Badule, Convener,
New Grand Education Society,
Sanjay Maidan, Indora, Kamptee Road,
Nagpur
ig 3] Head Master,
Indira Gandhi Vidya Mandir,
Ghoti (Tok), Bor, Tah. Ramtek,
District Nagpur.
- VERSUS -
RESPONDENTS : 1] Arun S/o Zituji Pantawane,
Aged years, Occu. Teacher,
R/o Swami Vivekanand Ward,
Near Lal Diwan Dargah, Ramtek,
Dist. Nagpur.
2] Education Officer (Secondary,
Zilla Parishad, Nagpur.
WITH
WRIT PETITION NO. 4480 OF 2015
PETITIONERS : 1] New Grand Education Society,
Sanjay Maidan, Indora, Kamptee Road,
Nagpur, through its Vice President
2] Smt. Kamlabai Badule, Convener,
New Grand Education Society,
Sanjay Maidan, Indora, Kamptee Road,
Nagpur
3] Head Master,
Indira Gandhi Vidya Mandir,
Ghoti (Tok), Bor, Tah. Ramtek, Dist. Nagpur.
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- VERSUS -
RESPONDENTS : 1] Rajesh S/o Nashiket Dongre,
Aged years, Occu. Teacher,
R/o 76, Shiv nagar, Parsoda,
Ramtek, Dist. Nagpur.
2] Education Officer (Secondary,
Zilla Parishad, Nagpur.
WITH
WRIT PETITION NO. 4112 OF 2015
PETITIONERS
: 1] New Grand Education Society,
Sanjay Maidan, Indora, Kamptee Road,
Nagpur, through its Vice President
2] Smt. Kamlabai Badule, Convener,
New Grand Education Society,
Sanjay Maidan, Indora, Kamptee Road,
Nagpur
3] Head Master,
Indira Gandhi Vidya Mandir,
Ghoti (Tok), Bor, Tah. Ramtek,
District Nagpur.
- VERSUS -
RESPONDENTS : 1] Rajendra S/o Vishnuji Thakre,
Aged years, Occu. Teacher,
R/o 25, Anand Nagar, Chhuriya Layout,
Ramtek, Dist. Nagpur.
2] Education Officer (Secondary,
Zilla Parishad, Nagpur.
-----------------------------------------------------------
Mr. A. S. Dhore, Advocate for the petitioners
Mr. P. N. Shende, Advocate for Resp.No.1 in WP 4478/15 & 4480/15
Mr. S. S. Dhengale, Advocate for Respondent no.1 in W.P. No.4112/15
Mr. S. J. Kadu, A.G.P. for the respondent no.2.
------------------------------------------------------------
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CORAM :
PRASANNA B. VARALE, J.
JUDGMENT RESERVED ON : 22.03.2016
JUDGMENT PRONOUNCED ON : 01.12.2016
JUDGMENT
1. Heard.
2. Rule. Rule made returnable forthwith. Looking to the
controversy involved in all these petitions and the grounds raised by the
petitioners, which are one and the same, with the consent of the learned
counsel for the parties, all these three petitions are taken up for final
disposal and being decided by this common judgment.
3] By these petitions, the petitioners are challenging the
judgment and order, dated 18.04.2015 passed by the Presiding School
School Tribunal, Nagpur in the respective appeals filed by the
respondent no.1-employees.
4] The case of the petitioner-Society is the respondent no.1 in
W.P. No.4478/2015 was appointed as an Assistant Teacher in petitioner
no.3 school after following selection process and with the prior approval
of the Education Society. It is the case of the petitioner-society that the
respondent no.1-employee was handed over charge of Headmaster for
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the period from 01.09.2006 to 31.11.2007 and from 01.08.2009 to
30.06.2010. Apart from the respondent no.1, two other teachers were
also given charge of Head Master in their respective tenure. It came to
the knowledge of the petitioner-society that the respondent no.1 and
other two teachers while they were in-charge Head Master made illegal
appointments of five teachers and the proposals for approval of their
services were sent under their signature to the respondent no.2. One of
the members of the managing committee of petitioner no.1 society
namely Ramesh Zade made a complaint/representation to respondent
no.2 - Education Officer (Secondary) in respect of illegal appointments
and sought for enquiry and necessary action. As there was no action
initiated nor enquiry was conducted in the complaint of Mr. Zade, he
approached the Division Bench of this Court by filing Writ Petition No.
5010/2012. The petition was disposed of with a direction to the
respondent-authority to consider and decide the representation.
Pursuant to the directions of this Court, an enquiry was conducted and
the respondent no.2 - Education Officer found that illegal appointments
were made of five teachers and as such the respondent no.2 cancelled
the approval granted to the appointment of those five teachers and
directed the petitioner-society to initiate an action against the
Headmaster, who had submitted the proposals. In view of the
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directions of the respondent no.2 - Education Officer, the petitioner-
society terminated the services of those five teachers by issuing
termination order, dated 01.08.2013. Being aggrieved by the said
order, those teachers approached the School Tribunal. The School
Tribunal passed the interim order restraining the petitioners from
effecting the termination order. Being aggrieved by the said order of
the Tribunal, the petitioners approached this Court by filing writ
petition. During pendency of the said writ petition, compromise was
arrived at between the petitioner-society and the employees and in view
of compromise, a proposal for approval of services of those employees
was submitted to the respondent no.2 - Education Officer, but the
respondent no.2 rejected that proposal. Being aggrieved by the order
of the respondent no.2, those teachers approached this Court by filing
Writ Petition No. 4002/2014 seeking direction for grant of approval.
This Court could not find favour with the petitioners/employees and the
petition was disposed of by the order dated 06.04.2015 with liberty to
the petitioners/employees to approach the Civil Court for redressal of
their grievances. In view of the communication of the respondent no.2
- Education Officer, an enquiry was conducted in respect of the
misdeeds of the respondent no.1. It was found by the petitioner-society
that the respondent no.1 by way of forged documents had submitted
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proposal for grant of approval. It was alleged that the respondent no.1
by way of forged signature of the then Secretary of the petitioner no.1-
Society Mr. Badule had submitted the proposal for grant of approval.
As the petitioner-society found that the respondent no.1 was indulged in
an act of mischief, the petitioner-society issued statement of allegations
and called upon the respondent no.1 to submit his explanation. As the
explanation was not found satisfactory, an enquiry committee was set
up for conducting enquiry against the respondent no.1. In spite of the
opportunities granted to the respondent no.1 to nominate his
representative in the enquiry committee, the respondent no.1 failed to
avail that opportunity. Ultimately, charge-sheet was issued. A two
member enquiry committee was constituted against the respondent no.1
consisting of one State Awardee teacher and one member nominated bu
the petitioner-Society. The enquiry committee conducted the enquiry
and submitted its report with recommendation to impose major penalty
for the grave and serious charges against the respondent no.1. In view
of the report of the enquiry committee, the petitioner-society resolved to
terminate the services of respondent no.1-employee and accordingly by
termination order, dated 28.12.2013, services of respondent no.1 were
terminated with effect from 31.12.2013. Being aggrieved by the said
termination order, respondent no.1 approached the School Tribunal by
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filing appeal under Section 9 of the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act. Though, an application
was filed for grant of stay, the same was rejected and the School
Tribunal allowed the appeal by the impugned judgment and order dated
18.04.2015, thereby quashing and setting aside the termination order
and directing the petitioner-society to reinstate the respondent no.1
with continuity of service and 25% back wages.
5] Mr. Dhore, the learned counsel for the petitioners
submitted that the impugned order passed by the School Tribunal is
unsustainable on various grounds, such as, the Tribunal has failed to
appreciate the material presented before it by the petitioner-
management. It was further submitted by the learned counsel that the
complaint was made by Mr. Ramesh Zade, one of the members of the
petitioner-management, to the respondent no.2 - Education Officer for
initiation of an action against the respondent no.1 for his misdeeds and
as no cognizance was taken by the respondent no.2-Education Officer, a
writ petition bearing No.5010/2012 came to be filed before this Court
by Mr. Ramesh Zade. While deciding the said writ petition, the Division
Bench of this Court directed the respondent no.2- Education Officer to
consider and decide the representation of Mr. Zade within the stipulated
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period. It was further submitted by the learned counsel that in view of
these facts, the School Tribunal observed that the respondent-Education
officer has erred in passing the order on the representation of Mr. Zade.
The learned counsel then submitted that the School Tribunal also erred
in observing that the complaint of Mr. Zade was not against the
respondent no.1 i.e. appellant before the Tribunal, but it was against
the Secretary of the Institute. The learned counsel then submitted that
the enquiry conducted by the petitioner-management was by following
the due procedure of law and more particularly the provisions of the
M.E.P.S. Act and the Rules framed thereunder. The learned counsel for
the petitioners submitted that the nature of enquiry conducted in trial is
different than the nature of inquiry in the disciplinary proceedings. It
was further submitted by the learned counsel that the School Tribunal
could not have gone into the legality of the findings arrived at by the
Enquiry Committee and could not have acted as if the appellate
authority over the enquiry committee. Thus, the learned counsel for the
petitioners submitted that the order passed by the School Tribunal is
unsustainable.
6] The learned counsel for the petitioners then submitted that
when the School Tribunal was of the opinion that the inquiry conducted
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through the enquiry committee at the instance of the petitioner-
management suffered from lacuna and the inquiry was vitiated, then
the School Tribunal ought to have directed the management for de-novo
enquiry from the stage where it was vitiated as per the observation of
the School Tribunal. It was submitted by the learned counsel for the
petitioners that the petitioner-management had also made such prayer
to the School Tribunal, but the School Tribunal in stead of taking
recourse of directing de-novo enquiry, allowed the appeal and set aside
the order of termination. Thus, in the alternate submission, the learned
counsel for the petitioners prayed for remand of the matter back to the
School Tribunal. In support of his submissions, the learned counsel for
the petitioners placed reliance on the following judgments of this Court
as well as the Apex Court :
1] 2014 (2) Mh.L.J. 879
[Bhartiya Seva Acharya Education Society, Nagpur and another
vs. School Tribunal, Nagpur and others]
2] 2014 (5) Mh.L.J. 41
[Abdul Salam Abdul Khalique .vs. Shah Babu Edn. Soc. & others]
3] 1997 (3) Mh.L.J. 709
[Thapar Education Society .vs. Shyam Maroti Bhasarkar and oths.]
4] 1997 (2) Mh.L.J. 578
[High Court of Judicature at Bombay through its Registrar .vs.
Udaysingh Ganpartao Naik Nimbalkar and others]
7] Per contra, Mr. Shende and Mr. Dhengale, the learned
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counsel for respondent no.1/employees in W.P. Nos.4478 & 4480 of
2015 and 4112/2015, respectively, support the order impugned in the
present petitions.
8] Mr. Shende, the learned counsel for the respondent no.1
submitted that respondent no.1 - Arun Pantawane was appointed as
Assistant Teacher in 1997 by following due procedure. It was further
submitted by the learned counsel that as there were two groups in the
management and though, he was senior, he was not promoted to the
post of Headmaster. It was submitted by the learned counsel that one
of the groups wanted to favour some other employees by appointing
them as Headmaster and wanted that the respondent no.1 should
relinquish his claim of seniority, but the respondent no.1 denied to
relinquish his claim and as such the group was acting against the
respondent no.1 with a grudge. It was submitted by Mr. Shende, the
learned counsel that the allegation of mischief played by the respondent
no.1 in making illegal appointments of some of the employees, is false
and baseless. He submitted that with the prior approval of the then
President of the society Mr. Devchand Badule, necessary steps were
taken by the respondent no.1, such as publishing advertisement, issuing
appointment orders, forwarding proposals to the Education department
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etc. Thus, it was the submission of the learned counsel for the
respondent no.1 that the respondent no.1 did not play any role in all
these matters. The learned counsel further submitted that the inquiry
conducted against respondent no.1 was mere a farce as no opportunity
of hearing was granted to the respondent no.1. The learned counsel
further submitted that no procedure was followed as laid down under
the Maharashtra Employees of Private Schools (Conditions of Service)
Rules, 1981 for conducting departmental enquiry. It was submitted by
the learned counsel that though, the School Tribunal quashed and set
aside the termination order and directed reinstatement of respondent
no.1 with continuity in service, it granted only 25% of back wages. He
further submitted that as the respondent no.1 was not gainfully
employed during the period from the date of termination till the date of
allowing the appeal, the School Tribunal ought to have granted full
back wages to the respondent no.1. Mr. Shende, the learned counsel
submitted that the punishment awarded to the respondent no.1, that
too on farce enquiry, was completely disproportionate. He submitted
that while awarding punishment, there must be subjective satisfaction
and without there being subjective satisfaction, the punishment was
awarded to the respondent no.1. Mr. Shende, the learned counsel in
support of his submissions, placed reliance on the judgments of this
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Court reported in 2011 (1) Mh.L.J. 166 in the case of Pralhad Kishor
Bondre .vs. Ramkrishna Shikshan Prasarak Sansthan, Lonar, Dist.
Buldana and others ; and 2010 (1) Mh.L.J. 359 in the case of Yavatmal
Islamia Anglo Urdu Education Society, Yavatmal and another .vs. Mujib
Ahmed Abbas Ali and another.
9] Mr. Dhengale, the learned counsel for the respondent no.1
in WP No.4112/15, largely adopted the arguments of the learned
counsel Mr. Shende and submitted that the respondent no.1/employee
by following due procedure had forwarded the proposal of appointment
of the employees and no role was played by the respondent no.1 in the
alleged appointment of other employees. The learned counsel
submitted that the services of the employees who were alleged to be
illegally appointed, were terminated. The termination order was
challenged before this Court. It was submitted that in the proceedings
before this Court, those employees and the petitioner-management
arrived at a compromise. Thus, both the learned counsel for the
respondent no.1 support the order passed by the School Tribunal
impugned in the present petition.
10] On the backdrop of the submissions of the learned counsel
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appearing for the parties, I have gone through the material placed on
record. Perusal of the material show that Mr. Ramesh Zade had
submitted a representation to the respondent no.2 - Education Officer.
It was submitted in the representation that the respondent no.1 in all
these petitions namely, Arun Pantawne, Rajendra Thakre and Rajesh
Dongre, who were the in-charge Headmasters, submitted a proposal to
the respondent no.2 authority for appointment of five teachers namely
Smt. Sharja Meshram, Raju Pendam, Shubhangi Thakare, A.B. Bobde
and R.Y. Raut. It was submitted in the representation that while
submitting those proposals, fraudulent documents were submitted and
also incorrect information was provided to the Education Department.
It was submitted that in respect of appointment of Smt. Sharja
Meshram, transfer was shown of said employee from one school to
another school and it was submitted that a meeting was conducted. It
was submitted that Mr. Zade was shown to be present in the said
meeting by referring to his signature. It was submitted in the
representation that neither the meeting was conducted as per the Rules,
nor Mr. Zade was present in that meeting. It was submitted that even
roster submitted before the authority was not the genuine roster.
Perusal of the material further shows that as no cognizance was taken of
the representation made by Mr. Zade, the Division Bench of this Court,
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by order dated 18.10.2012 in W.P. No. 5010/12 directed the
respondent no.2 - Education Officer to decide the representation. The
material placed on record further shows that the respondent no.2, in
compliance of the order of this Court, by giving an opportunity of
hearing to the employees, who were allegedly appointed and on a
perusal of the material and the record, found that those appointments
were made in breach of the Rules of 1981 and there was no
transparency in the appointments. The respondent no.2 - Education
Officer then directed the petitioner-management to initiate action
against those Headmasters, who forwarded the proposal for
appointment of five employees. It would be interesting to note that one
of such employee, namely Smt. Thakre had approached this Court
seeking direction to the authorities of Education Department to grant
approval to her appointment and release the salary and the Division
Bench of this Court in Writ Petition No. 4002/2014, by order dated
06.04.2015 thought it fit not to entertain the petition. The petition was
accordingly disposed of with liberty to the petitioner/employee to avail
other remedies.
11] Thus, there was considerable merit in the submission of the
learned counsel for the petitioners that the School Tribunal has erred in
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observing that the respondent no.2 - Education Officer could not have
directed the petitioner- management to initiate enquiry against the
respondent no.1-employees. The material placed on record also show
that the School Tribunal only referred to the earlier complaint of Mr.
Zade, wherein he had sought an action against the then Secretary of the
Society. The School Tribunal failed to consider that subsequently there
was a representation made to the respondent no.2 - Education Officer
and under the orders of the Division Bench of this Court, the respondent
no.2 conducted enquiry and passed the order. These facts are already
referred to above. The School Tribunal only on assumptions and
presumptions observed that the signatures appearing on the documents
that is of respondent no.1-employee were put in at the instance of the
management. When there was no material before the Tribunal that the
management insisted upon the respondent no.1-employees to sign the
documents such as publishing advertisement in newspaper, preparing
the selection list, preparing and maintaining the Roster, then in that
case, the School Tribunal could not have arrived at a conclusion that if
the management had issued instructions, the respondent no.1 could not
have refused or denied to put his signature on the documents.
12] The School Tribunal in its impugned judgment, by referring
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to the version of Smt.Sharja Meshram observed that the findings of the
inquiry committee were perverse as the committee failed to consider the
cross-examination of the Chief Executive Officer and replies given by
Smt. Sharja Meshram. The School Tribunal failed to consider the aspect
that it was an allegation against the respondent no.1-employee
(appellant before the Tribunal) that he had appointed Smt. Meshram
illegally and by submitting the fraudulent documents before the
education authorities. The replies given by Smt. Meshram were that the
appellant had not made false signature and her behaviour was proper.
Now, on these replies, the School Tribunal arrived at a conclusion that
the inquiry committee has not considered the cross-examination of the
Chief Executive Officer and the replies given by Smt. Meshram and such
findings are perverse. The School Tribunal thus clearly erred in
recording these findings.
13] The School Tribunal, on the aspect of non-compliance of
the provisions of the MEPS Rules by referring to Rule 36(2) and by
referring to the certificate submitted by the petitioner-management in
the name of Shri R.D. Suryavanshi, State Awardee Headmaster,
observed that no material placed to show that name of Shri R.D.
Suryavanshi was included in the panel of State/National Awardee Head
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Masters. The School Tribunal then hold that the management failed to
constitute the inquiry committee as per the Rules. In view of this
peculiar fact that the School Tribunal found that there was non-
compliance of Rule 36 of the Rules of 1981 as one of the member of the
inquiry committed was not the panel of State/National Awardee Head
Masters, then in that case the Tribunal ought not to have proceeded on
assessment of the merits of the appeal and the course open for the
Tribunal was to direct the petitioner-management to conduct the
enquiry de novo from the stage at which it was vitiated.
14] As Mr. Dhore, the learned counsel for the petitioners placed
heavy reliance on the judgment of this Court in the case of Bhartiya
Seva Acharya Education Society .vs. School Tribunal Nagpur and others, it
will be useful to refer to the relevant observations of this Court in the
said judgment. This Court at paragraph 6 has observed thus -
"6. The question involved in the present petition is as to
whether the tribunal was right in passing the order of
reinstatement, continuity in service with full backwages, without
leaving option to the management to hold de novo enquiry
when it has held that the enquiry conducted by the management
vitiates on technical defects. The another question is whether
the tribunal was right in going into the merits of the charges
levelled against an employee to hold that the charges of
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misconduct levelled against her have not been established, when
the tribunal finds that the enquiry was vitiated on technical
grounds."
Then, this Court referred to the judgment of Full Bench of this Court in
the case of Saindranath jagannath Jawanjal .vs. Pratibha Shikshan
Sanstha and another 2007(3) Mh.L.J. (F.B.) 753] and observed at
paragraphs 8 and 9 thus -
"8.
It is thus apparent that in case where the enquiry is
found to be defective, the appropriate relief as has been held in
Dr. Harbhajan Singh Greasy's case by the Apex Court is to set
aside the order of dismissal with direction to the management to
hold an enquiry from the stage the illegality has crept in and
that the reinstatement is to be treated for the purposes of
holding fresh enquiry and no more. So far as the backwages are
concerned, the entitlement thereof is to make dependent on the
final outcome of the fresh enquiry. The case of "defective
enquiry" is considered on part with the case of "no enquiry",
even in respect of the cases arising out of disciplinary
proceedings conducted under the MEPS Act and the Rules
framed thereunder.
9. In view of above law laid down by the Full Bench of this
Court, it was not permissible for the School Tribunal to go into
the merits of the charges levelled against an employee and the
tribunal should have set aside the order of termination and
permitted the management to hold an enquiry from the stage
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the illegality has crept in and that the reinstatement of the
respondent no.3 is required to be treated for the purposes of
holding fresh enquiry and no more. The question of payment of
backwages in such a situation also does not arise as it would
depend upon the final outcome of the fresh enquiry."
The same view was reiterated in another judgment of this Court, relied
on by the learned counsel for the petitioners, in the case of Abdul Salam
Abdul Khalique .vs. Shah Babu Education Society and others (supra).
15] Though, Mr. Shende, the learned counsel for respondent
no.1/employees placed reliance on the judgments of this Court in the
case of Pralhad Kishor Bondre .vs. Ramkrishna Shikshan Prasarak
Sansthan and others ; and Yavatmal Islamia Angro Urdu Education
Society .vs. Mujib Ahmed Abbas Ali and others (supra) and though, there
cannot be any dispute on the proposition of law reflected in these
judgments, in view of the above referred facts, I am of the opinion that
the judgments relied on by Mr. Shende, the learned counsel are of no
help to him.
16] Considering the facts of the present matter, I am of the
opinion that the orders passed by the School Tribunal are unsustainable.
I see no reason to take any different view than the view taken by this
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Court in Bhartiya Seva Acharya Education Society's case. In the result,
the writ petitions are partly allowed.
(i) The impugned judgment and order, dated 18.04.2015
passed by the School Tribunal, Nagpur in the respective appeals filed by
the respondent no.1/employees, are quashed and aside to the extent of
setting aside the termination of respondent no.1-employees and
granting reinstatement and continuity in service with 25% back wages
within a month from the date of order.
(ii) The management is at liberty to hold de novo enquiry
against respondent no.1-employees from the stage at which the School
Tribunal has found the enquiry to be defective in accordance with the
provisions of the M.E.P.S. Act and the Rules framed thereunder.
(iii) The petitioner-management to complete the entire enquiry
within a period of six months from the date of the order of this Court
and pass the ultimate order.
(iv) The respondent no.1-employees shall be deemed to have
been placed under suspension with effect from the order of termination
and would be entitled for subsistence allowance in accordance with
Rule 34 of the M.E.P.S. Rules till the enquiry is concluded and ultimate
orders are passed by the petitioner-management.
(v) The writ petitions are disposed of. Rule is made absolute in
the aforesaid terms. No order as to costs.
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JUDGE
Diwale
