Indra Shikshan Prasarak Mahila ... vs The State Of Maharashtra And ...
2016 Latest Caselaw 257 Bom

                                                                                19.WP.4263.14.doc


          
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                        
                                   BENCH AT AURANGABAD




                                                                
                                    WRIT PETITION NO. 4263 OF 2014 

             1.  Indra Shikshan Prasarak Mahila
                  Mandal, Jalgaon. Through its President.




                                                               
                  23, Utkarsha Grah Nirman Sanstha,
                  Adarsh Nagar, Jalgaon, Tq. & Dist. Jalgaon.

             2.  Indra Shikshan Prasarak Mahila




                                                          
                  Mandal, Jalgaon. Through its Secretary.
                  Akshata Grah Sankul, Block Nos.1 and 2,
                                              
                  Adarsh Nagar, Jalgaon, Tq. & Dist. Jalgaon.

             3.  Appasaheb Pundlik Kalu Patil
                                             
                  Madhyamik Vidhyalaya, Pimpalkhed,
                  Tq. Bhadgaon, Dist. Jalgaon.
                  Through its Head Mistress                            ..PETITIONERS
                  


                             VERSUS
               



             1.  The State of Maharashtra,
                  Through Education Officer,
                  Secondary Zillha Parishad, Jalgaon.
        




             2.  Sunil Abhiman Marathe
                  Age: 40 years, Occu.: Nil,
                  R/o Gut No.31, Laxmanbhau Nagar,
                  Balad Road, Bhadgaon, Dist. Jalgaon.                 ..RESPONDENTS





                                              ....
             Ms. S.D. Mahajan, Advocate for petitioners.
             Mr. V.G. Shelke, AGP for Respondent No.1.
             Mr. S.R. Barlinge, Advocate for Respondent No.2.
                                              ....


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                                           CORAM :  RAVINDRA V. GHUGE, J.

DATED : 2nd MARCH, 2016

ORAL JUDGMENT:

1. Rule. Rule made returnable forthwith and heard finally

by the consent of the parties.

2. The petitioner-management is aggrieved by the judgment

and order dated 26.02.2014 delivered by the School Tribunal,

Nashik by which Appeal No. 49/2010 filed by Respondent No.2-

employee has been allowed. His termination is set aside and has

been granted reinstatement with continuity and full back wages.

3. Ms. Mahajan, learned Counsel for the petitioners has

strenuously criticized the impugned judgment.

4. Mr. Barlinge, learned Counsel appearing on behalf of

Respondent No.2-employee has vehemently supported the

impugned judgment. His contention is that once the Tribunal has

arrived at a finding of facts, this Court should be slow in causing

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any interference in its writ and/or supervisory jurisdiction. He

relies upon the judgment delivered by the Hon'ble Supreme Court

in the case of Syed Yakoob Vs. K.S. Radhakrishnan, AIR 1964 SC

477 and Surya Dev Rai Vs. Ram Chander Rai, AIR 2003 SC 3044

to support his contention that unless the impugned judgment and

order is perverse, erroneous and is likely to cause grave injustice,

no interference is called for.

5. I have considered the submissions of the learned

Counsels. In the light of the order that I intend to pass, I am not

required to advert to their entire submission.

6. It is apparent that the petitioner-management had

conducted a domestic enquiry against Respondent No.2-employee

as provided under Rule 36 and 37 of M.E.P.S. Rules, 1981. The

School Tribunal has framed six issues. Issue Nos. 4 and 5 pertain to

the aspect of the domestic enquiry and findings of the enquiry

officer. The Tribunal has arrived at a conclusion that the domestic

enquiry is vitiated and deserves to be set aside. For similar reasons,

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the punishment imposed by the petitioner on Respondent No.2-

employee pursuant to the domestic enquiry has also been interfered

with.

7. In the above back drop, the School Tribunal has set aside

the punishment of the Respondent No.2 on 05.09.2010 and has

granted him reinstatement with continuity and full back wages.

8. The Hon'ble Supreme Court in the case of Vidya Vikas

Mandal and Another Vs. Education Officer and Another,

2007(3) Mh.LJ 801 has dealt with an almost identical situation.

Considering the fact that the enquiry was vitiated, the Hon'ble

Supreme Court has concluded in paragraph nos.8 and 9 as under:

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

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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

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is also quite contrary to the Rules.

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."

9. It is therefore settled law that if an enquiry is held to be

vitiated, the same can be set aside, but an opportunity is required to

be afforded to the employer to conduct the enquiry from the stage

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at which it has been vitiated. The learned Apex Court in such a

situation has concluded that the employee should be placed under

suspension/should be treated to be under suspension and shall be

entitled for suspension allowance from the date of termination of

his services.

10. The learned Apex Court has dealt with the relief of

reinstatement in service with continuity and grant of full back

wages as was done by the Tribunal in the Vidya Vikas Mandal

(supra) case and which direction was sustained by the learned

Single Judge and the learned Division Bench of this Court. The

learned Apex Court has concluded that the learned Single Judge

and the learned Division Bench have committed a serious error in

ordering reinstatement with back wages.

11. In Bhartiya Seva Acharya Education Society, Nagpur

and Others Vs. School Tribunal, Nagpur and Others, 2014(2)

Mh.L.J. 879, the learned Single Judge of this Court has concluded

in paragraph nos.6 to 10 as under:

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                                                                                      19.WP.4263.14.doc


                    "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 denovo 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 misconduct levelled against her have not been established, when the tribunal finds that the enquiry

was vitiated on technical grounds.

7] The Full Bench of this Court has considered the question in the decision of Saindranath Jagannath

Jawanjal vrs. Pratibha Shikshan Sanstha and another,

reported in 2007(3) Mh.L.J. 753. In para 45, the Full Bench has considered the decision of the Apex Court in

case of State of Punjab and others vrs. Dr.Harbhajan Singh Greasy, reported in (2005) 8 SCC 264, as under:

'45. At this stage, it would be relevant to

make reference to the cases of Government employees, who are protected under Article 311 of the Constitution of India. If the punitive action leading to dismissal, removal or reduction in rank without holding enquiry is taken in case of Government employee, then no

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alternative is left for the Courts but to direct

reinstatement with full backwages. However, in the recent judgments, the Apex Court has adopted little

different route and permitted the management to hold departmental enquiry from the stage the illegality has

crept in. In this behalf, readily available judgments are in the cases of State of Punjab and others vs. Dr. Harbhajan Singh Greasy, U.P.State Spinning Co. Ltd.

vs. R.S.Pandey and another, (2005) 8 SCC 264,

U.P.State Textile Corpn. Ltd. vs. P.C. Charturvedi and others, 2005 (8) SCC 211; wherein the Supreme Court

has observed that in case of no enquiry or defective enquiry, proper relief is to set aside the dismissal with direction to the management to hold 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 backwages are

concerned, the entitlement thereof is to make dependent on the final outcome of the fresh enquiry.' In para 47, the question has been considered with

reference to the provision of MEPS Act and Rules framed thereunder and hence, para 47 is reproduced below;

'47. The up shot of above is that the M.E.P.S. Act and Rules do not subscribe to the action of the management leading to inflicting major penalties

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without holding enquiry as contemplated under the

provisions of the Act and Rules. In this backdrop, in case of "no enquiry", the school management cannot be

allowed to justify their action, for the first time, before the School Tribunal. It is open for the School Tribunal to

adopt the same route which has been adopted by the Supreme Court in the case of Dr. Harbhajan Singh Greasy with some other cases noted supra, but the

school management cannot be allowed to justify their

action for the first time before the tribunal in case of no enquiry.'

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 par 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.

    S.S.DESHPANDE                              10   /  14





                                                                                    19.WP.4263.14.doc

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 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 enqiry 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.

10] Shri Mohgaonkar, the learned counsel appearing for the respondent no. 3 - employee has urged that there

was no permission sought by the management before the

School Tribunal to lead evidence to establish the charges of misconduct. The tribunal has, therefore, rightly gone

into the merits of the charges on the basis of the material available before it and has recorded the finding of fact that the findings recorded by the Enquiry

Committee holding that the charges proved, are perverse. It is not possible to accept this argument for the reason that the matter is covered by the decision of the Full Bench as has been held in paragraphs 45 and 47, which are reproduced above. There was no question

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of the management seeking permission to prove the

misconduct by making out a case for leading additional evidence under Order XLI, Rule 27 of CPC. Once it is

found that the enquiry was vitiated on the technical grounds, the course open for the tribunal was to permit

the management to conduct denovo enquiry from the stage from which it is found to be vitiated."

12. It is therefore apparent that the School Tribunal could

not have granted reinstatement with continuity and full back wages

to the petitioner vide the impugned judgment. The said conclusion

is therefore perverse and erroneous and calls for an interference.

13. The impugned judgment deserves to be set aside for yet

another reason which is that if the enquiry is vitiated, an employer

cannot be precluded from conducting an enquiry from the stage at

which it has been vitiated. From the impugned order, this right as

is available in law to the petitioner, has been taken away.

14. In the light of the above, this petition is partly allowed.

The impugned judgment of the School Tribunal dated 26.02.2014 is

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modified to the extent of the directions set out in Clauses 4 and 6.

15. It is informed by the learned Counsels that the enquiry as

against Respondent No.2 has been vitiated from the very formation

of the enquiry committee. As such, Respondent No.2 shall be

treated as being under suspension from the date of his termination

dated 05.09.2010 and shall be entitled for suspension (subsistence

allowance) in accordance with Rule 34 of the 1981 Rules.

16. The petitioner shall initiate steps as is required to be done

under Rules 36 and 37 of the 1981 Rules and ensure that the

enquiry committee is properly constituted and the enquiry against

Respondent No.2-employee in relation to charge-sheet leveled upon

him is conducted strictly in accordance with Rules 36 and 37.

17. Considering the fact that Respondent No.2-employee is

out of employment from 05.09.2010, it is expected that the

petitioner-management shall initiate immediate steps to ensure that

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Respondent No.2 is paid his suspension allowance with effect from

05.09.2010 @ 50% wages for the first four months and then @

75%, till the passing of this order as expeditiously as possible and

preferably within a period of four weeks from today. It shall

continue to pay him the suspension allowance till the conclusion of

the disciplinary proceedings.

18.

Rule is made partly absolute in the above terms.

19. In the event the grant of suspension allowance by

following the due procedure takes time, the management shall pay

the suspension allowance from its account and shall then seek

reimbursement of the amount through the salary grants by

following the due procedure as is laid down in law.

                                                        (RAVINDRA V. GHUGE, J.)




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