Bombay High Court
Khan Imran Khan Umar vs Gulshan Shikshan Prasarak Mandal ... on 23 November, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11310 OF 2016
Khan Imran s/o Khan Umar,
Age : 33 years, Occupation : Nil,
R/o H.No.2/1/65,
Hayat Manzil, Shah Bazar,
Aurangabad.
...PETITIONER
-VERSUS-
1 Gulshan Shikshan Prasarak Mandal,
Jaswantpura, Aurangabad.
(Through its Secretary).
2 Head Master,
Rajdhani Urdu High School,
Jaswantpura, Aurangabad.
3 The Education Officer (Secondary),
Zilla Parishad, Aurangabad.
...RESPONDENTS
WITH
WRIT PETITION NO. 11311 OF 2016
Shama Firdaus Mohd. Haji,
Age : 40 years, Occupation : Nil,
R/o C/o Dr.Sayeed Siddiqui,
Saad Cottage, Madina Doodh
Dairy Lane, Rasheedpura,
Aurangabad.
...PETITIONER
-VERSUS-
1 Gulshan Shikshan Prasarak Mandal,
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Jaswantpura, Aurangabad.
(Through its Secretary).
2 Head Master,
Rajdhani Urdu High School,
Jaswantpura, Aurangabad.
3 The Education Officer (Secondary),
Zilla Parishad, Aurangabad.
...RESPONDENTS
WITH
WRIT PETITION NO. 11312 OF 2016
Mohd. Azhar s/o Mohd. Akbar,
Age : 40 years, Occupation : Nil,
R/o C/o Imran Khan Umar,
Plot No.1, Near Meyar Lawns,
Younus Colony, Katkat Gate,
Aurangabad.
...PETITIONER
-VERSUS-
1 Gulshan Shikshan Prasarak Mandal,
Jaswantpura, Aurangabad.
(Through its Secretary).
2 Head Master,
Rajdhani Urdu High School,
Jaswantpura, Aurangabad.
3 The Education Officer (Secondary),
Zilla Parishad, Aurangabad.
...RESPONDENTS
WITH
WRIT PETITION NO. 11313 OF 2016
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Ghazi Muddasir Ahmed s/o
Ghazi Noorullah,
Age : 32 years, Occupation : Nil,
R/o C/o Ashraf Sahab,
Near Heena Apartment,
Heena Nagar, Rashid Pura,
Aurangabad.
...PETITIONER
-VERSUS-
1 Gulshan Shikshan Prasarak Mandal,
Jaswantpura, Aurangabad.
(Through its Secretary).ig
2 Head Master,
Rajdhani Urdu High School,
Jaswantpura, Aurangabad.
3 The Education Officer (Secondary),
Zilla Parishad, Aurangabad.
...RESPONDENTS
...
Advocate for Petitioners : Shri Deshpande Ajay S.
Advocate for Respondent Nos.1 and 2 : Shri Ali Zeeshan Zaidi.
AGP for Respondent 3 : Shri N.T.Bhagat.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 23rd November, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
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2 All these Petitioners are identically placed teachers working
with Respondent Nos.1 and 2/ Management. All of them have raised a
common grievance while challenging the judgments of the School
Tribunal, Aurangabad, all dated 30.08.2016, in Appeal Nos.39/2015,
32/2015, 31/2015, 38/2015. Though all these Petitioners have succeeded
before the School Tribunal and their Appeals have been partly allowed by
setting aside the orders of termination dated 16.11.2015, 19.09.2015,
19.09.2015 and 16.11.2015, respectively, the Respondent/ Management is
directed to conduct a de-novo enquiry as per Rule 36(2)(a) of the
Maharashtra Employees of Private Schools (Conditions of Service) Rules,
1981 (for short "the MEPS Rules, 1981") and all the Petitioners are
deemed to be placed under suspension from the dates of their
termination. They are held entitled for suspension allowance strictly in
accordance with the rules and their termination orders have been set
aside. Even then the Petitioners are aggrieved for the reasons which have
been dealt with in this judgment.
3 I have considered the strenuous submissions of the learned
Advocates for the respective sides and the learned AGP on behalf of the
Respondent/ Education Officer (Secondary), Zilla Parishad, Aurangabad.
4 The Petitioners are aggrieved by the direction of the Tribunal
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by virtue of which the Management is permitted to reconstitute the
Enquiry Committee and conduct a de-novo enquiry. It is pointed out from
the impugned judgments, which have not been challenged by the
Respondent/ Management in this Court, that an impostor was permitted
by the Management to be a part of the Enquiry Committee, meaning to
say that a person, who was not authorized to be a part of the Enquiry
Committee, was permitted to impersonate as a valid member of the
Enquiry Committee, who was actually a different person altogether.
5 The Petitioners were not allowed to nominate their nominees
on the Enquiry Committee in accordance with the rules on the ground that
they should produce "no objection" of the Education Officer and the
Headmaster and only then such a nominee would be allowed to be a
member of the three members Enquiry Committee. The School Tribunal
has concluded that this was aimed at mounting pressure so as to restrain
and preclude the Petitioners from nominating their representatives.
Consequentially, as the Petitioners failed to obtain such no objection, the
State Awardee teacher proceeded with the enquiry in the absence of the
nominees of the Petitioners.
6 It is also pointed out that the School Tribunal has concluded
that besides the State Awardee teacher, the nominee of the Management
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on the Enquiry Committee was an impostor. Though the Respondent/
Management has vehemently denied these contentions and though the
learned Advocate for the Respondent/ Management before this Court
strenuously denies that this has happened, the fact remains that the
School Tribunal has arrived at a specific conclusion on this count and the
Management has not challenged the impugned judgments.
7 It is in these extremely peculiar facts and circumstances of
these cases that Shri Deshpande, learned Advocate for the Petitioners,
notwithstanding the law laid down by the Honourable Supreme Court in
paragraphs 8 and 9 of the judgment delivered in Vidya Vikas Mandal and
another vs. Education Officer and another, 2007(3) Mh.L.J. 801 (SC),
places reliance upon the judgment of this Court in the matter of
Bhagwanrao s/o Vishwanath Vyawhare vs. Sau.Sunita w/o Gopinath Palve,
2008(1) Mh.L.J. 417, to contend that where the malafides and dishonesty
of the Management is writ large upon being exposed, it would be
extremely dangerous and risky to remit the Petitioners to the Enquiry
Committee to be constituted by the Management and thereby, leave the
Petitioners/ Employees to the mercy of the Management.
8 It is strenuously submitted by Shri Deshpande that the
Management has decided to dispense with the services of these Petitioners
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by following any strategy and as such, with the backdrop in which the
enquiries have been vitiated by the School Tribunal and the factum of the
Enquiry Committee being illegally constituted, directing the Petitioners to
appear before such a Committee which would be newly constituted by the
same Management, would be too hazardous. He, therefore, strenuously
submits that considering the view taken by this Court in Bhagwanrao
Vyawhare case (supra) wherein similar peculiar circumstances have been
recorded, the School Tribunal can be directed to conduct a de-novo
enquiry by directing the Management to lead evidence before the School
Tribunal, which is not impermissible in the light of the ratio laid down by
the learned Full Bench of this Court in the matter of Saindranath s/o
Jagannath Jawanjal vs. Pratibha Shikshan Sanstha, 2007(3) Mh.L.J. 753.
9 The learned Advocate for the Respondent/ Management,
though has vehemently refuted the contentions of the Petitioners, submits
that the impugned judgments have not been challenged by the
Management which is prepared to conduct a de-novo enquiry. He submits
that the Management has no prejudice or bias against these Petitioners. It
has no antipathy towards these employees and as such, is willing to
conduct a de-novo enquiry. He further submits that even if this Court
directs the School Tribunal to conduct a de-novo enquiry, the Management
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is willing to lead evidence before the School Tribunal and since the
Management has bonafide intention, it would have no difficulty if a
judicial officer conducts an enquiry.
10 Paragraph 65 of the judgment delivered by the learned Full
Bench of this Court in Saindranath Jawanjal case (supra) reads as under:-
"65. But this should not be understood as placing fetters
on the powers of the Tribunal. It is always open to the
Tribunal to exercise its powers on the peculiar facts
and circumstances of each case as it deems just and
necessary in the interest of justice. Take a case where
the management is not in a position to hold enquiry
because of the situation brought about by the
employee himself making it impossible for the
management to hold enquiry before taking punitive
action against him, in such contingency, the School
Tribunal is not powerless to permit the School
management to lead evidence to prove the act of
misconduct before it to support its action. This legal
sanction in law is implicit in Sub-rule (b) of Rule 27
of Order 41 of Civil Procedure Code which reads as
"...for any other substantial cause" This clause gives
wide discretion to the Tribunal, which, no doubt, is
required to be exercised judiciously for the reasons to
be recorded. But, exercise of such powers in every
case; in a routine manner would take away the very
object of the legislation meant to provide the
employees security and stability of service to enable
them to discharge their duties effectively and
efficiently. Therefore, such power is available for being
exercised only in the extremely exceptional cases and
in compelling circumstances and not in a routine
manner in every case."
11 The Honourable Supreme Court in Vidya Vikas Mandal
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(supra) has concluded in paragraphs 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 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.
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
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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."
12 It is settled law that if the enquiry is vitiated for any reason,
the Management is to be directed to conduct a de-novo enquiry from the
stage at which it was vitiated and the Tribunal as well as this Court should
be extremely cautious and should refrain from issuing directions of
reinstatement during the pendency of such enquiries. The law is equally
well settled that if the enquiry is set aside on being vitiated, the same has
to be relegated back to the Management for conducting a de-novo enquiry.
13 It cannot be ignored that if such circumstances are pointed
out and are substantiated which would indicate that the directions to
conduct a de-novo enquiry may not meet the ends of justice on account of
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certain acts or omissions and commissions committed by the Management,
the Tribunal or this Court would have to ponder on the aspect as to
whether, justice would be done by directing the Management to conduct
an enquiry before the Tribunal itself. It requires no debate that this Court
is obliged to ensure that a de-novo enquiry is not rendered farcical and the
intention and object of the law is not defeated by permitting an
unscrupulous Management to reduce such a de-novo enquiry into a
mockery. It ought not to lead to a miscarriage of justice.
14 In the instant cases, though Shri Deshpande has vehemently
contended that this is a fit case for preventing the Management from
conducting a de-novo enquiry on the lines of the view taken by this Court
in Bhagwanrao Vyawhare case (supra), I have not accepted the said
submission for two reasons. Firstly, that the judgment of the Honourable
Supreme Court in Vidya Vikas Mandal case (supra) was not cited before
this Court in Bhagwanrao Vyawhare case (supra). Secondly, because the
Respondent/ Management has expressed that it would prove it's bonafide
by consenting to conduct a de-novo enquiry before the School Tribunal.
Had the Management not been agreeable on this aspect, the submissions
of Shri Deshpande in the light of Bhagwanrao Vyawhare case (supra) could
have been considered in the backdrop of the fact that an impostor was
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permitted to sit by proxy in the enquiry posing to be that member of the
Enquiry Committee who actually did not participate in the enquiry, as is
the conclusion of the School Tribunal.
15 In the light of the above, the view expressed by this Court in
Bhagwanrao Vyawhare case (supra) in paragraphs 5 and 6 needs to be
reproduced as under:-
"5. The reference to the Full Bench was made on account
of the divergence of views between the two Benches of
this Court in the matter of whether evidence could be
allowed to be led before the School Tribunal to
supplement the respective case of the parties before it.
The appellant teacher in the said case was accused of
offence of rape on his student. In view of the situation
that had arisen on account of allegation against the
appellant in that case, his services were terminated
without holding an enquiry. The appellant had
challenged the said termination before the School
Tribunal. The School Tribunal had set aside the
termination on the ground that it was illegal as no
enquiry was held against him. The Management had,
therefore, sought to prove misconduct of the Appellant
before the Tribunal. It is in the context of the said
facts that the Full Bench held that the legal sanction
to lead evidence before the School Tribunal is implicit
in Sub Rule (b) of Rule 27 of Order 43 of the Code of
Civil Procedure which reads as "for any other
substantial cause". But exercise of such power in every
case in routine manner would take away the very
object of the legislation to provide the employees the
security and stability of service to enable them to
discharge their duties effectively and efficiently.
Therefore, such power is available for exercise only in
extremely exceptional cases in the compelling
circumstances and not in a routine manner in every
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case.
6. I have given my anxious consideration to the rival
contentions. It is significant to note here that the
enquiry has been found to be vitiated on three counts
namely; that the person competent to issue the
statement of allegations i.e. the President of the
Management has not issued the said statement of
allegation, secondly, the constitution of the Inquiry
Committee was not proper as the President was not
part of the Inquiry Committee and did not act as the
Convener and thirdly that the termination order has
been issued by a person incompetent to issue it. The
question as indicated herein should the Management
be permitted to hold a de novo enquiry against the
Respondent No.1. For consideration of the said
question, the observations of the Full Bench in para
65, in my view, are relevant. The Full Bench has
taken into consideration the judgment of the Apex
Court in the matter of State of Punjab and others vs.
Dr.Harbhajan Singh Greasy and others (supra)
[(1996) 9 SCC 322] and the Judgments cited before
it and thereafter it has concluded in the manner it
has done in paragraph 65 of the said judgment. The
question that begs an answer is, is the present case an
exceptional case to warrant a de novo enquiry into
the charges levelled against the Respondent No.1.
Looking to the background of the conspectus of facts
prior to the issuance of the statement of allegations
issued to the Respondent No.1, in my view, the course
of action of allowing the petitioners to hold a de novo
enquiry is not warranted in the instant case."
16 It is thus apparent that in Bhagwanrao Vyawhare case (supra),
this Court has taken a view, which is, no doubt, required to be taken in the
rarest of rare case and thus has prevented the Management from holding a
de-novo enquiry. In the instant cases, as the Management is willing to
conduct an enquiry before the School Tribunal and since the learned Full
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Bench of this Court has laid down the law in Saindranath Jawanjal case
(supra), I find it equitable to order the conducting of a de-novo enquiry
before the School Tribunal at Aurangabad.
17 In the light of the above, these Writ Petitions are partly
allowed and the impugned judgments of the School Tribunal are modified
only to the extent of the direction issued to the Management to conduct a
fresh enquiry and to complete the said enquiry within four months. The
said direction shall stand replaced by the direction that the School
Tribunal shall hold an enquiry before itself.
18 As such, all the Appeals are relegated to the School Tribunal
at Aurangabad on the following conditions:-
(a) The litigating sides shall appear before the School Tribunal on
16.12.2016.
(b) The charge sheets issued to these Petitioners by the
Respondent/ Management shall be placed before the School
Tribunal on the date of appearance.
(c) The Petitioners/ Employees would be at liberty to submit their
detailed explanations to the said charges within three weeks
from the date of appearance.
(d) Both the litigating sides are permitted to produce such
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documents on which they place reliance, before the School
Tribunal within three weeks from the date of appearance.
(e) In the event, there is any controversy about any of the
documents being in the custody of Jinsi Police Station,
Aurangabad, the litigating sides are at liberty to file an
application for production of such documents and the School
Tribunal shall consider the same and if need be, issue
necessary directions to the Jinsi Police Station to produce
such documents for the purpose of conducting the enquiry.
(f) In the light of paragraph 9 of the Vidya Vikas Mandal
judgment (supra), the Management shall deposit the entire
subsistence allowance as per Rule 34 of the MEPS Rules, 1981
which mandates 50% of the gross salary for the first four
months and 75% for the remaining period, within three
weeks from the date of appearance before the School
Tribunal, as a precondition for conducting the enquiry.
(g) If the subsistence amount as directed above is not deposited,
the School Tribunal shall refuse permission to the
Management to lead evidence and shall thereafter, conclude
that no de-novo enquiry has been conducted.
(h) In the event, the subsistence allowance is deposited as
directed above, the School Tribunal shall permit all these
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Petitioners to withdraw the said subsistence allowance
without conditions.
(i) During the conducting of the enquiry, the Management shall
continue to deposit the monthly subsistence allowance before
the School Tribunal and the Petitioners shall be at liberty to
withdraw the same without conditions.
(j) The litigating sides shall extend cooperation to the School
Tribunal and shall refrain from seeking adjournments on
unreasonable or trivial grounds.
(k) Notwithstanding the fact that the MEPS Rules, 1981 prescribe
the period of four months for conducting the enquiry, I am
granting SIX MONTHS time from the date of appearance, to
the School Tribunal to conclude the said enquiry, as there are
04 cases.
19 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
