Saraswati Shikshan Sanstha ... vs State Of Maharashtra And Ors
2016 Latest Caselaw 4139 Bom

                                         1




                                                                          
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                  
                            WRIT PETITION NO.4961 OF 2000

    The Saraswati Shikshan Sanstha,
    Velmapura, Kinwat, Tq.Kinwat,




                                                 
    District Nanded, through the
    President-Venkatrao Mukundrao Nemaniwar,
    Age-51 years, Occu-Social Work,
    R/o Velmapura,




                                        
    Kinwat, District Nanded                                   PETITIONER
    VERSUS                    
    1. The State of Maharashtra,

    2. Vishwanath S/o Rajaram Vyavahare,
                             
        Age-57 years, Occu-Business,
        R/o Ramnagar, Tq.Kinwat,
        Dist.Nanded,

    3. The Education Officer (Secondary),
      


        Zilla Parishad, Nanded,
   



    4. Saraswati Vidya Mandir Secondary - Deleted
        and Higher Secondary School, Kinwat,
        Through Incharge Head Master                          RESPONDENTS 

WITH WRIT PETITION NO.1105 OF 2006

Vishwanath S/o Rajaram Vyavahare, Age-63 years, Occu-Nil,

R/o Ramnagar, At Post Tq.Kinwat, Dist.Nanded PETITIONER

VERSUS

1. The President, Saraswati Shikshan Sanstha, Velmapura, At Post Tq.Kinwat, Dist.Nanded AND

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Convenor of the Enquiry Committee, Saraswati Shikshan Sanstha,

At Post Tq.Kinwat, Dist.Nanded

2. The Education Officer (Secondary), Zilla Parishad, Nanded,

3. Incharge Head Master, S.V.M.S. and H.S. School, Kinwat, Dist.Nanded RESPONDENTS

Mr.A.G.Godhamgaonkar, Advocate for the petitioner/Management.

Mr.P.G.Borade, AGP for the respondent/State. Mr.Vivek Dhage, Advocate for the respondent/employee. In WP No.4961/2000, respondent No.4 is deleted.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 26/07/2016

ORAL JUDGEMENT :

1. The petitioner / Management is aggrieved by the judgment and

order dated 01/11/2000 delivered by the School Tribunal,

Aurangabad by which Appeal No.268/1996 has been allowed. The

punishment of dismissal imposed upon the respondent dated

24/07/1996 has been set aside and he has been granted 60% back

wages. The employee has filed the 2 nd petition for claiming full back

wages.

2. This Court, by order dated 11/12/2000, admitted this petition

and stayed the order of reinstatement on the condition that the

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petitioner shall deposit the back wages, as were granted by the

Tribunal. It is informed by Mr.Dhage, learned Advocate for the

respondent/employee that the respondent has attained the age of

superannuation in 2001, which is within 12 months from the date of

the impugned judgment. He further submits that the amount of

Rs.1,74,000/-, deposited by the petitioner, was withdrawn by the

respondent by order dated 21/12/2004, passed by this Court in CA

No.10772/2003. An amount of Rs.865/-, as on 29/08/2005 with

accrued interest is lying in this Court.

3. I have considered the strenuous submissions of

Mr.Godhamgaonkar for the petitioner and Mr.Dhage for the employee.

Considering the subsequent events, post admission of this petition

and in the light of the ratio laid down by the Hon'ble Supreme Court

in the matter of Vidya Vikas Mandal and another Vs. Education

Officer and another, [2007(11) SCC 352 = 2007(3) Mh.L.J. 801], I am

not required to deal with their entire submissions.

4. Upon going through the record available, it is evident that the

enquiry suffered deficiencies in view of the provisions under Rule 37

of the M.E.P.S. Rules 1981. Documents produced before the Enquiry

Committee were not supplied to the respondent. Summary of the

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proceedings and the evidence recorded, were not furnished. The

enquiry, therefore, stood vitiated. Consequentially, the Tribunal, in

the light of the law as it stood then, granted reinstatement with

continuity of service and 60% back wages.

5. The law on conducting a de-novo enquiry pursuant to the

setting aside of the enquiry conducted, was laid down by the Hon'ble

Supreme court in paragraph Nos. 8 and 9 in the Vidya Vikas

judgment (supra), which read as under :-

"8. Our attention was also drawn to Rule 36 sub-clause 2(a), which applies to the case of an employee and reads thus: "36 (2)(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 authorized by the Management, whose name shall be communicated to the Chief Executive Officer within 15

days from the date of the decision of the Management.

(ii) 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."

9. 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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6. As such, the impugned order cannot be sustained considering

the view taken by the Hon'ble Supreme Court. However, the

respondent/employee is about 73 years old today. He has already

withdrawn the back wages as were deposited by the Management and

it would be impracticable to permit the Management to restart the

enquiry from the stage at which it stood vitiated.

7.

In the peculiar facts as above, I deem it proper to pass the

following order :-

[a] The petition filed by the Management is partly allowed. [b] The petition filed by the respondent/employee WP No.1105/2006, seeking enhancement of back wages, stands

dismissed.

[c] There shall be notional continuity of service from 24/07/1996 till the date of superannuation of the employee and he shall therefore be entitled to retiral benefits in accordance with Law.

[d] The Management shall not be required to pay any further back wages.

[e] The balance amount lying in this Court with interest shall be withdrawn by the respondent/employee towards back wages.

[f] The Head Master and/or the Management of the Educational Institution, as the case may be, shall forward the proposal of the respondent/employee for retiral benefits within a period of 8 (eight) weeks from today and the Education Department and/or the concerned Department, as the case may be, shall process the said proposal forthwith.

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[g] The Education Officer shall consider the position occupied by the respondent/employee as a Head Master on which post he

was working since 03/11/1992 till his removal, strictly in accordance with the approval granted by the Department for the purposes of calculating his retiral benefits.

8. Rule is made partly absolute in the above terms in the petition

filed by the Management and Rule is discharged in the petition filed

by the employee.

9. No costs.

( RAVINDRA V. GHUGE, J.)

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