Bombay High Court
A.C. Tripathi vs P.N. Mehta Educational Trust & Ors on 28 November, 2016
Bench: M.S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3559 OF 2003
A.C. Tripathi .. Petitioner
vs.
P.N. Mehta Educational Trust and ors. .. Respondents
Ms Prachi Khandge and Ayodhya Patki i/b M/s. M.P. Vashi &
Associates for the Petitioner.
Mr. S.M. Katkar i/b Mr. Suresh Pakale for Respondent No.2.
Mr. S.D. Rayrikar, AGP for Respondent No.3
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 22 NOVEMBER 2016.
Date of Pronouncing the Judgment : 28 NOVEMBER 2016.
JUDGMENT :-
1] The petitioner challenges the judgment and order dated 4
December 2002 made by the School Tribunal, Nashik, to the extent,
it denies to the petitioner's reinstatement with full back wages,
consequent upon concluding that the penalty of termination vide
order dated 8 September 1997 was disproportionate to the
misconduct alleged.
2] Ms Prachi Khandge, learned counsel for the petitioner,
submitted that once the termination order is found to be infirm or
disproportionate, normal rule is reinstatement with full back wages.
She submitted that in the present case the enquiry, on basis of which
the penalty of termination came to be imposed upon the petitioner,
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was itself in violation of Rules 36 and 37 of the Maharashtra
Employees of Private Schools (Conditions of Service) Rules, 1981
(said Rules). She submitted that the chargesehet / statements of
allegation were signed by the Principal of the Institution, when, Rule
36(1) of the said Rules requires the issuance/signature by the Chief
Executive Officer. She submitted that the Principal, in the present
case, was clearly biased and even otherwise not competent authority
to issue the chargesheet/statements of allegation.
3] Ms Khandge submitted that the reply submitted by the
petitioner was never placed before the Managing Committee within
the period of 15 days from its receipt and to this extent, there is
clear breach of Rule 36(2) of the said Rules. She submitted that
these are serious infirmities which vitiate the enquiry and
consequent penalty of termination of services. Ms Khandge also
submitted that the petitioner's nominee betrayed the petitioner's
confidence and the enquiry committee, unjustifiably declined leave
to the petitioner to replace such nominee with a person of the
petitioner's choice and confidence. Ms Khandge submitted that such
denial has resulted in the failure of principle of natural justice and
fair play.
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4] Finally, Ms Khandge submitted that most of the charges were
stale, i.e., of the year 1990 and they were raked up only in the year
1996-1997. She submitted that minor penalty had already been
imposed upon the petitioner on 5 January 1996. At that stage, the
charges of 1990 were not deemed serious by the Management. The
entire enquiry proceedings and the penalty imposed, is on the
account of the petitioner instituting a civil suit questioning the
penalty imposed upon him. Ms Khandge submitted that even the
School Tribunal has concluded that the charges against the
petitioner did not warrant penalty of termination and on this
ground, even set aside the penalty of termination. Ms Khandge
submitted that as a corollary the petitioner ought to have been
granted reinstatement with all consequential benefits. The denial of
reinstatement with consequential benefits is a serious error, which is
required to be set right in these proceedings.
5] Mr. S.M. Katkar, learned counsel appears for respondent No.2
and Mr. S.D. Rayrikar, learned AGP appears for respondent No.3.
6] Mr. Katkar, learned counsel for respondent No.2, submitted
that there was due compliance with the principles of natural justice
in the course of enquiry proceedings. There is no breach of any of
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the statutory rules, in the matter of holding of enquiry. He submitted
that the penalty imposed upon the petitioner was in fact
proportionate and in any case the petitioner cannot expect anything
more than compensation of six months. Mr. Katkar was not clear
as to whether compensation of six months as awarded by the School
Tribunal has in fact been paid to the petitioner or not. Finally, he
submitted that the petitioner has made out no case to interfere with
the impugned order.
7] Mr. Rayrikar, learned AGP for respondent No.3, submits that
there is no case made out to interfere with the impugned order. In
any case, he submitted that there can be no liability fastened upon
respondent No.3.
8] The School Tribunal, upon due consideration of the material
on record, has concluded that the enquiry proceedings were held in
accordance with the prescribed rules and there was no failure in
compliance with the principle of natural justice and fair play. Upon
perusal of Rules 36 and 37 of the said Rules in juxtaposition with the
material on record, it is difficult to accept Ms Khandge's contention
that such rules have been breached in the present case. The School
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Tribunal has analysed the Rules, as also the material on record and
there is really no case made out to interfere with the reasoning of
the School Tribunal on this score.
9] This is a case where sufficient opportunity was granted to the
petitioner in the course of enquiry. Therefore, it cannot be said that
there was any serious failure of principle of natural justice and that
the petitioner was seriously prejudiced in the matter of his defence.
Again, this aspect has been considered by the School Tribunal in
great details and there is really no reason to interfere with the
findings recorded by the School Tribunal on this aspect.
10] The scope of judicial review in such matters is quite limited.
As long as the findings recorded by the enquiry committee are not
perverse and further, such findings have been recorded after due
compliance with principle of natural justice and fair play, normally, it
is not within the province of the writ court to interfere. Although,
the petitioner has alleged breach of statutory rules, the petitioner
has failed to make good such allegation. This court, whilst exercising
the powers of judicial review, is not acting like some appellate
authority over the findings recorded by the enquiry committee or for
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that matter the School Tribunal. Taking into consideration, therefore,
the limited scope of judicial review, there is really no case made out
to interfere with the findings recorded by the enquiry committee,
which findings have been substantially upheld by the School
Tribunal.
11] However, it must be noted that the School Tribunal has itself
held that though many of the charges leveled against the petitioner
can be said to have been proved such charges are not serious enough
to warrant the penalty of termination. The School Tribunal has
concluded that the penalty of termination, in the facts and
circumstances of the present case, is grossly disproportionate,
considering the nature of allegations which are said to have been
proved against the petitioner. The School Management has not
challenged the order made by the School Tribunal.
12] Normally, imposition of penalty is a managerial function and
the scope of judicial review in such a matter is also quite limited.
However, considering the circumstance that several allegations
against the petitioner relate to the year 1990 and enquiry was held
into them only in the year 1996-1997 and that some of the
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allegations stated as proved are indeed trivial, the view taken by the
School Tribunal is a plausible one. The School Management has also
not chosen to challenge such view.
13] Insofar as denial of reinstatement is concerned, there is no
case made out to interfere with the view taken by the School
Tribunal. There is material on record, referred to in the impugned
judgment and order, that the petitioner, after his termination,
secured employment as a Principal in some other school. There is
also a finding of fact that the petitioner was in gainful employment
after termination of his services. Besides, the relationship between
the petitioner and the School Management was strained and the
period of almost five years had elapsed since the date of his
termination. Besides, in the present case, even the School Tribunal,
has accepted that most of the charges levelled against the petitioner
stand proved. However, the School Tribunal has held that the
penalty of termination was disproportionate. The circumstance that
penalty of termination was disproportionate, does not imply that the
petitioner stands completely exonerated and therefore, was entitled
to benefit of reinstatement with full back wages. If all such
circumstances are considered cumulatively, no fault can be found
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with the decision of the School Tribunal denying reinstatement to
the petitioner.
14] Ms Khandge, however, submitted that the petitioner was
appointed as a Principal in a public school on 17 June 1999, but
such appointment was purely on temporary basis and the same
ceased after hardly nine to ten months. In this case, the petitioner
had failed to disclose about his appointment in some other school.
No material was accordingly, placed on record by the petitioner that
such appointment was only temporary and lasted for not more than
an year. The School Tribunal was therefore, entitled to proceed on
the basis that the petitioner was in gainful employment since his
termination and on such basis deny the petitioner the relief of
reinstatement.
15] At the stage when this petition was instituted, the petitioner
was 52 years of age. By now, therefore, the petitioner has already
attained the age of superannuation. The petitioner has really not
made out any case for grant of relief of reinstatement and in any
case, such relief, by now, has been rendered infructuous. The
petitioner has also not made out any case for grant of full back
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wages though, the case is made out for some enhancement of
compensation and certain additional reliefs, if permissible under the
law.
16] The School Tribunal has already held that penalty of
termination was disproportionate, but, denied the petitioner
reinstatement with full back wages. All that the School Tribunal has
awarded the compensation equivalent to six months salary to the
petitioner and nothing further. The School Tribunal having
concluded that many of the charges leveled against the petitioner
were trivial and the penalty of termination was disproportionate,
should have, after setting aside such penalty remanded the matter to
the Management to determine the appropriate penalty. This is
because imposition of penalty, as noted earlier, is normally
managerial function. However, the School Tribunal, perhaps taking
into consideration the circumstance that period of five years had
already elapsed since the date of termination deemed it appropriate
to award the petitioner compensation equivalent to six months
salary. This means that the petitioner has been denied reinstatement
and back wages to the extent of almost four and half years. Having
concluded that the penalty of termination was disproportionate, in
my judgment, the School Tribunal ought to have granted at least
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some additional compensation to the petitioner, in the facts and
circumstances of the present case.
17] At this point of time, remanding the matter will be quite futile.
In the interests of justice, therefore, the impugned order is modified.
Respondent Nos.1 and 2 are directed to pay to the petitioner
additional compensation equivalent to further eighteen months
salary, i.e., in all compensation equivalent to two years salary. This
additional compensation shall be paid by respondent Nos.1 and 2 to
the petitioner within a period of four months from today. For this
purpose, the salary has to be determined at the rate prevalent in the
year 1997, which is the date on which the services of the petitioner
came to be terminated.
18] There is no dispute that the petitioner, prior to his
termination, had put in nine years of service in the school.
Ms Khandge submitted that in case the petitioner were to complete
ten years of service, then, he might have been eligible for certain
additional benefits like gratuity, pension etc.. There is no material on
record to accept that a person, who completes ten years of service in
a school is entitled to benefits like gratuity, pension etc. However, if ,
in terms of the Maharashtra Employees of Private Schools
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(Conditions of Service) Regulation Act, 1977 and the Rules made
thereunder or in terms of any other executive instructions, an
employee, who has put in ten years service in an aided school is
entitled to such benefits, then, there is no reason as to why the
same should be denied to the petitioner, particularly, since the
School Tribunal has set aside the termination order.
19] The petitioner is therefore, at liberty to make representation to
respondent Nos.1,2 and 3 for grant of such benefits to him, on the
basis that he has completed ten years of service. The petitioner, is
deemed to have completed ten years of service, in terms of the order
of the School Tribunal as well as the present order. If, in terms of
said Act, said Rules or any other executive instructions, such relief is
available to the petitioner, respondent Nos.1,2 and 3 to consider and
grant the same to the petitioner within three months from the date
of receipt of petitioner's representation. It is made clear that this
Court has not examined the issue as to whether an employee
completing ten years of service in a school is entitled to terminal
benefits like gratuity, pension etc. Therefore, this issue is kept open
for decision by respondent Nos.1,2 and 3, including in particular
respondent No.3.
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20] In case, the compensation equivalent to six months salary as
directed by the impugned judgment and order, has not already been
paid to the petitioner, respondent Nos.1 and 2 are directed to pay
the same to the petitioner within a period of four months from today
along with interest thereon at the rate of 8% per annum from 4
December 2002 onwards. Similarly, if the additional compensation
now directed by this order, if not paid within four months from
today, the same shall carry interest at the rate of 8% per annum.
However, interest upon such additional compensation shall be
determined only from the date of present order.
21] Rule is, accordingly, made absolute to the aforesaid extent.
The impugned judgment and order made by the School Tribunal is
modified to the extent indicated.
22] There shall be no order as to costs.
23] All concerned to act on the basis of authenticated copy of this
order.
(M. S. SONAK, J.)
