Bombay High Court
Al Farooque, Social And ... vs Mohd Jaleeloddin Mohammed ... on 10 March, 2016
Bench: R.V. Ghuge
WP 4680/15 & another
- 1 -
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4680 OF 2015
Al-Farooque,
Social and Educational Society,
Jalna. (Though its President)
...Petitioner...
ig Versus
1 Mohd. Jaleeloddin Mohammed
Mukhtaroddin, Age : 43 Yrs,
Occu: Assistant Teacher,
R/o : Near Raj Mahal Talkies,
Dargah Bes Road, Jalna.
Tq and Dist : Jalna.
2 Education Officer (Primary),
Zilla Parishad, Jalna.
3 State of Maharashtra,
School Education Department,
Mantralaya, Mumbai.
(Through its Secretary)
...Respondents...
.....
Shri R.J. Godbole, Advocate for petitioners.
Shri N.V. Gaware, Advocate for respondent no.1.
Shri S.S. Tope, Advocate for respondent no.2.
Shri D.R. Korde, AGP for respondent no.3.
.....
=-=-==-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
::: Uploaded on - 14/03/2016 ::: Downloaded on - 31/07/2016 08:27:59 :::
WP 4680/15 & another
- 2 -
WITH
WRIT PETITION NO.8221 OF 2015
Mohd. Jaliluddin Mohd. Muktaruddin
Age : 43 Yrs Occu: Assistant Teacher,
R/o : Near Raj Mahal Talkies,
Dargah Bes Road, Jalna.
Tq. and Dist : Jalna.
...Petitioner...
Versus
1 Al-Farooque,
Social and Educational Society,
ig Jalna. (Though its President)
2 The Education Officer (Primary,
Zilla Parishad, Jalna.
Dist. Jalna.
.....
Shri N.V. Gaware, Advocate for petitioner.
Shri R.J. Godbole, Advocate for respondent no.1.
Shri S.S. Tope, Advocate for respondent no.2.
.....
CORAM: RAVINDRA V. GHUGE, J.
DATE: 10.03.2016
ORAL JUDGMENT :
1] Rule. Rule made returnable forthwith and heard
finally by the consent of the parties.
2] In the first petition i.e. Writ Petition
No.4680/2015, the management is the petitioner, which is
WP 4680/15 & another
- 3 -
aggrieved by the judgment and order dated 1.1.2015
delivered by the School Tribunal, Aurangabad, in Appeal
No.68/2004. Respondent no.1 is the original appellant -
employee in the said petition.
3] In the second petition i.e. Writ Petition
No.8221/2015, the appellant - employee is the petitioner,
who has challenged the same judgment and order delivered
by the School Tribunal in his Appeal No.68/2004.
4] Considering the above, both these petitions have
been taken up together for hearing. The litigating
sides, for the sake of brevity, would be referred to as
the 'management' and the 'employee'.
5] The learned Advocates for the respective sides
as well as Shri S.S. Tope, learned Advocate appearing for
respondent no.2 - Education Officer (Primary) with the
learned AGP, have canvassed at length.
6] I have considered their submissions. In the
light of the order that I intend to pass considering the
ratio laid down by the Hon'ble Supreme Court in the case
of Vidya Vikas Mandal & another v. Education Officer &
another (2007 (11) SCC 352), I am not required to advert
to their entire submissions since a de-novo enquiry is
WP 4680/15 & another
- 4 -
required to be conducted with regard to the charges
leveled upon the employee.
7] Suffice it to say that the charge-sheet dated
1.10.2003 and the second charge-sheet dated 11.12.2003
are at issue. The earlier enquiry conducted by the
management and which was questioned in Appeal No.68/2004
by the employee, has been vitiated and set aside by the
School Tribunal vide the impugned judgment.
8] Having considered the record, the submissions of
the learned Advocates, the conclusions of the School
Tribunal and the ratio laid down in Vidya Vikas Mandal's
case (supra), I am not inclined to cause any interference
in the direction of the School Tribunal vide which the
management is obliged to follow the due procedure laid
down in law viz. Rules 36 and 37 of the Maharashtra
Employees Private Schools (Conditions of Service) Rules,
1981. The issue of no hearing before initiation of the
second charge-sheet dated 11.12.2003 is squarely covered
by Rule 36(1) and as such the management would be under
an obligation to follow the due procedure so as to ensure
that the enquiry does not suffer from any deficiency.
9] The contention of the employee that the charges
WP 4680/15 & another
- 5 -
leveled upon him in both the charge-sheets are baseless,
frivolous and vexatious, is not being entertained by this
Court for the reason that if charges are leveled upon an
employee by an employer, the law mandates that the
employer should prove the charges by following the due
procedure laid down in law. In effect, the disciplinary
proceedings have to be initiated and have to be taken to
a logical end. The employee cannot seek the quashing and
setting aside of the charge-sheet akin to Section 482 of
the Code of Criminal Procedure, 1973, which is invoked
for quashing a First Information Report. The
disciplinary proceedings in service jurisprudence are
conceptually distinct and different from the criminal
proceedings and hence the contention of the employee that
no enquiry needs to be conducted and both the charge-
sheets be quashed, is being rejected.
10] Paragraph nos.8, 9 and 10 of Vidya Vikas Mandal
case (supra) reads 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
WP 4680/15 & another
- 6 -
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) ig 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 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
WP 4680/15 & another
- 7 -
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.
10. 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
WP 4680/15 & another
- 8 -
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."
11] Considering the above and in the light of the
doctrine of 'relation back', no interference is called
for in the order of punishment dated 5.8.200 by which the
employee has been reverted to the post of Assistant
Teacher. Since a de-novo enquiry is to be conducted, the
conclusion of the disciplinary proceedings by the
doctrine of relation back, would relate back to the date
of order of punishment.
12] In the event, the employee is exonerated, the
order of punishment dated 5.8.2004 shall stand set aside
WP 4680/15 & another
- 9 -
and he would then be at liberty to claim consequential
benefits on account of the exoneration. In the event,
the charges are held to be proved against him, the action
of the management in punishing him by order dated
5.8.2004 would stand supported and the employee would
then be at liberty to question the order of punishment
afresh. Needless to state, if the management desires to
enhance the punishment, proper opportunity of hearing
will have to be given to the employee in tune with Rule
37 of the MEPS Rules, 1981.
13] The employee has raised an additional issue in
his petition, which is with regard to two aspects.
Firstly, that the wages from 5.8.2004 till 4.8.2008 when
he joined duties as an Assistant Teacher, have not been
paid to him. Secondly, by order of reversion dated
5.8.2004, which will now be subject to the result of the
de-novo enquiry, the employee should have been reverted
to the post of Assistant Teacher, which would be one step
below his earlier position of Head Master.
14] The grievance seriously voiced by Shri Gaware is
two-fold. Firstly, that the management did not pay him
the wages from 5.8.2004 to 4.8.2008 and secondly he has
WP 4680/15 & another
- 10 -
been reverted to the position of the Assistant Teacher at
the lowest salary scale as if he has newly joined as an
Assistant Teacher. In doing so, he has been placed below
the Assistant Teachers, who are much junior to him.
15] Shri Godbole has opposed the contention of Shri
Gaware on the ground that the employee had filed Appeal
No.18/2004 before the School Tribunal by which it was
contended that he has been orally terminated. The
management by its written statement brought it on record
that the employee was not orally terminated, that there
is no termination and that he was reverted from the
position of Head Master to the position of an Assistant
Teacher. Shri Godbole, therefore, submits that the
employee withdrew Appeal No.18/2004 unconditionally. He
is, therefore, precluded from raising any grievance as
regards unpaid wages for exactly four years from 5.8.2004
till 4.8.2008.
16] He further submits that the management has
reverted him to a particular scale as an Assistant
Teacher. The said action is legal and proper and cannot
be called in question, more so in the light of the fact
that Appeal No.18/2004 has been unconditionally withdrawn
WP 4680/15 & another
- 11 -
by the employee.
17] I find from the record that since the management
informed the Tribunal as well as the employee that he has
not been terminated in any form and has merely been
reverted to the post of Assistant Teacher by the order of
punishment dated 5.8.2004, the employee has withdrawn his
appeal.
18] However, the issue as to whether the employee
was absent for the said four years or whether he was
restrained from reporting for duties by the management,
remains unanswered. The moment, the management announced
that there was no termination in the eyes of law, Appeal
No.18/2004 was virtually without any cause of action.
Nevertheless, the grievance of the employee that he has
not been paid wages for four years and his reversion to
the basic pay as if he is a new appointee, still
survives.
19] I am, therefore, of the view that the employee
deserves to be granted the liberty to question the non-
payment of his wages for four years as well as the
reversion bringing him down not to the stage of an
Assistant Teacher based on his seniority, but bringing
WP 4680/15 & another
- 12 -
him down to the basic salary scale, before the Education
Officer. In the event, any such representation /
complaint is filed by the employee, the Education Officer
will have to deal with the same and decide the said
grievance after hearing all the parties.
20] In the light of the above, the petition filed by
the employee is disposed of without causing any
interference in the direction of the Tribunal in Clauses
(1) to (4) below paragraph no.24 of the impugned
judgment.
21] Nevertheless, the direction of the Tribunal to
reinstate the employee on the post of Head Master by
setting aside the order of reversion dated 5.8.2004 with
all consequential benefits, arrears of salary and back
wages, will stand modified in the light of the
observations set out in the foregoing paragraph no.19
keeping in view the ratio laid down by the Hon'ble
Supreme Court in Vidya Vikas Mandal case (supra).
22] The employee shall, therefore, work on the post
of Assistant Teacher till the de-novo enquiry is
concluded in accordance with Rules 36 and 37 of the
Rules. He shall be at liberty to approach the Education
WP 4680/15 & another
- 13 -
Officer as has been observed above for expressing his
limited grievance noted in the foregoing paragraph.
23] Rule is, therefore, made partly absolute in the
first petition filed by the management.
24] Rule is discharged in the second petition filed
by the employee.
25] There shall be no order as to costs in both the
petitions.
(RAVINDRA V. GHUGE, J.)
ndk/c1031611.doc
