The Secretary John Wilson ... vs Sanjay Premanand Athavale And ...
2016 Latest Caselaw 5858 Bom

                                            1




                                                                             
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                     
                      WRIT PETITION NO.1189 OF 2016

    1.     The Secretary,
           John Wilson Education Society,
           Wilson College, Mumbai,




                                                    
           Taluka and District Mumbai,

    2.     Dr.Fraser Boy's High School, Jalna,
           Taluka and District Jalna,




                                           
           (Wrongly mentioned)
           Near Shanoormiya Dargah,
           Shahanoorwadi, Jalna,
                              
           Taluka and District Jalna,
           Through its Head Master                        --       PETITIONERS
                             
    VERSUS

    1.     Sanjay Premanand Athavale,
           Age-55 years, Occu-Assistant Teacher,
           Dr.Fraser Boys High School, Jalna,
      


           Taluka and District Jalna,
           R/o Shraddha Christen Housing Colony,
   



           Behind JES College, Jalna,
           Taluka and District Jalna,

    2.     The Education Officer (Secondary),





           Zilla Parishad, Jalna,
           Taluka and District Jalna                      --     RESPONDENTS

Mr.V.G.Sakolkar, Advocate for the petitioners. Mr.R.J.Godbole, Advocate for respondent No.1.

Mr.P.N.Kutti, AGP for respondent No.2.

( CORAM : RAVINDRA V. GHUGE, J.) DATE : 05/10/2016 ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

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2. I have heard the learned Advocates for the respective sides at

length on 04/10/2016 as well as today.

3. There is no dispute that respondent No.1 / employee was

appointed on 14/06/2011 and while he was under probation, a show

cause notice dated 30/07/2012 was issued to him leveling allegations

against him. After completing the enquiry under the MEPS Rules,

the employee was awarded the punishment of reduction in rank by

order dated 29/03/2014.

4. The employee approached the School Tribunal in Appeal

No.3/2014. By the impugned judgment dated 09/10/2015, the

enquiry was held to be unsustainable from the stage as prescribed

under Rule 36(1) of the MEPS Rules, 1981. The petitioner is,

therefore, permitted to conduct a fresh enquiry. The observation of

the School Tribunal that the appellant be treated under suspension

and be paid suspension allowance from the date his termination, has

been subsequently corrected since the appellant was never

terminated and hence there was no question of keeping him under

suspension as he was reduced in rank and he continued in

employment.

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5. After considering the submissions of the learned Advocates and

upon going through the voluminous record available, I do not find

any reason to cause an interference in the impugned judgment,

except to consider the request of the petitioner that the Chair

Person / President of the petitioner John Wilson Education Society,

would find it impossible to be a party to the Enquiry Committee.

6. Rule 36(2)(b) requires that the President shall be the Member of

the Enquiry Committee, if the Head of the Institution is being

subjected to disciplinary proceedings. In the instant case, the

appellant is the Head of the particular Institution at Dist. Jalna.

Therefore, the President will have to be the Representative of the

Management in the Enquiry Committee.

7. The learned Division Bench of this Court in the matter of

Ganesh Mahadeorao Thawre Vs. Central Hindu Military Education

Society, Nashik and another, [2007(6) Mh.L.J. 589] has concluded in

paragraph Nos.12 to 15 as under :-

"12. Rule 36(2)(b) of the MEPS Rules undoubtedly requires that in case of an enquiry into misconduct of head, one of the members of the Committee shall be the President of the

khs/OCT.2016/1189-d

Management. The word "management" has defined in Clause 12(c) of section 2 of the MEPS Act which does not necessarily

require "management" to be the incorporated society. It can be a body of persons administering such school within such incorporated entity. How the school is to be administered is

prescribed by the bye-laws of the society and since such bye- laws empower the Branch Managing Committees to control the affairs of the school, chairman of such Branch Managing

Committee would be the President of "management" for the

purpose of Rule 36(2)(b) of MEPS Rules.

12. The learned Advocate Shri Anjan De then placed reliance on

judgment in National Education Society Vs. Mahendra, reported in 2007(3) Mh.L.J. 202. This is a judgment of Full Bench of this Court rendered in reference case. The reference pertained to

manner in which the situation should be dealt with when the

Head Master would himself to be Chief Executive Officer, is a delinquent to be charge-sheeted. This judgment does not, in any manner, help the petitioner's arguments that no one except

President of the society would answer the description of the management and therefore, the President of the Branch of the society cannot take part in the disciplinary proceedings.

14. Such inference also pragmatically follows, if one were to

consider the plight of the President of a society running hundreds of schools. If by interpreting the provisions of section 2(12) of the MEPS Act and Rule 36(2)(b) of MEPS Rules, such a president was required to participate at all enquiries against the heads of his schools, he would have nothing else to do.

15. We further observe that the entire emphasis or the

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mandatory part of Rule 36 is on the point of manner of service of charge-sheet. This rule is totally silent on the point of

delegation. It does not deal a situation as to whether in the given facts of the case compelled due to circumstances would it be wholly impermissible even if the constitution or bye-laws of

the trust do not prohibit for deletion of power of President in relation to the matter of employment, discipline etc. being prohibited. We, therefore, see that in absence of prohibition to

delegate found in the said rules, why as in present case the

Branch President cannot be the "Management"."

8. It was thus concluded that since the MEPS Rules do not wholly

prohibit delegation of authority, in an appropriate case, such

authority can be delegated by the President so as to nominate the

Representative of the Manager.

9. Mr.Sakolkar, learned Advocate for the petitioner has placed on

record a list of Colleges and Educational Institutions under the John

Wilson Education Society headed by the President. The said list is

marked as Exhibit "X" for identification. It, therefore, appears that

there are about 15 Institutions in Mumbai, Jalna, Pune, Nagpur and

Miraj. So also, he is the Head of about 64 other Institutions under

the Gujarat Christian Service Society.

khs/OCT.2016/1189-d

10. He, therefore, submits that it would be humanly impossible for

the said President to be a party to the Enquiry Committee wherever

such inquiries are commenced against the Heads of the Institutions

under the MEPS Rules. He, therefore, prays that the view taken by

this Court in Ganesh Mahadeorao Thawre (supra) be made applicable

to the present case.

11.

Mr.Godbole submits that he would not canvass against the

ratio laid down by the learned Division Bench. He, however, submits

that the issuance of the statement of allegations under Rule 36(1) is

also unsustainable. He, therefore, submits that though the President

of the Institution may delegate authority to a Branch Head of the

Institution at issue in the light of Ganesh Mahadeorao Thawre

(supra), the Management will have to initiate the enquiry from the

stage prescribed under Rule 36(1).

12. In the light of the above, this petition is partly allowed only to

the extent of permitting the President of the petitioner/Institution to

delegate authority to a Branch Head either from Mumbai or Pune or

Jalna and shall ensure that the said person shall not be equivalent to

the respondent/employee, who is being subjected to an enquiry. As

such, the petitioner shall commence the enquiry afresh from Rule

khs/OCT.2016/1189-d

36(1) and shall be conducted in accordance with the rules.

13. Rule is made partly absolute in the above terms.

( RAVINDRA V. GHUGE, J.)

khs/OCT.2016/1189-d