Kelzara Panchasheel Magas ... vs Sheikh Khalil Sheikh Rasul And ...
2016 Latest Caselaw 6252 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                     
                 NAGPUR BENCH, NAGPUR




                                             
                   WRIT PETITION NO.6126 OF 2012




                                            
      1. Kelzara Panchasheel Magas Vargiya Mahila 
         Shikshan Sanstha, Kelzara,
         through President/Secretary,
         Tq. Arni, Dist. Yavatmal.




                                      
      2. The Head Master,
         Samyak Vidyalaya, Umarsara,
                             
         Tq. and Dist. Yavatmal.               ... Appellants
                            
           Versus


      1. Sheikh Khalil Sheikh Rasul,
      

         Aged Major, 
         R/o Digras, At Post Patan,
   



         Tq. Zari Jamni, Dist. Yavatmal.

      2. Education Officer (Secondary),
         Zilla Parishad, Yavatmal,





         Dist. Yavatmal.

      3. Hon'ble School Tribunal,
         Amravati Division, Amravati.          ... Respondents





      Dr. Anjan De, Advocate for Petitioners.
      Respondent No.1 in person.
      Ms Geeta Tiwari, Assistant Government Pleader for Respondent 
      Nos.2 and 3.




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                    Coram : R.K. Deshpande, J.

st Dated : 21 October, 2016

Oral Judgment :

1. The Management takes exception to the judgment and

order dated 31-8-2012 passed by the School Tribunal, Amravati,

in Appeal No.62/2011. The School Tribunal has set aside the

order of termination dated 18-6-2011 passed by the

Management, terminating the services of the respondent No.1 as

an Assistant Teacher with effect from 20-6-2011. The petitioners

are directed to reinstate the respondent No.1 in service along

with back wages within a period of three months.

2. Heard Dr. Anjan De, the learned counsel for the

petitioners; the respondent No.1-Sheikh Khalil Sheikh Rasul,

appearing in person; and Ms Geeta Tiwari, the learned Assistant

Government Pleader for the respondent Nos.2 and 3.

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3. The respondent No.1 was terminated from service by an

order dated 18-6-2011 after holding an enquiry against him in

respect of three charges, which were held to be proved by the

Enquiry Committee. The School Tribunal has set aside the order

of termination on the ground that an enquiry was initiated

against the respondent No.1 by issuing the charge-sheet

dated 7-1-2010, but subsequently that was cancelled by the

resolution dated 11-12-2010 on the ground that it was not being

conducted as per Rules 36 and 37 of the Maharashtra Employees

of Private Schools (Conditions of Service) Rules, 1981. The

Tribunal holds that once the enquiry was initiated by issuing the

charge-sheet dated 7-1-2010, the same could not have been

stopped with a decision to re-start the enquiry taken on

11-12-2010.

4. In respect of the charge of willful absence without prior

permission, the Tribunal holds that the respondent No.1 admits

to have remained absent, but the reasoning given by him should

have been considered. According to the Tribunal, the pass-book

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of the respondent No.1 in respect of his bank account was taken

away by the Management in the year 2005 and the amount in the

account of the respondent No.1 was withdrawn in the names of

Shri A.V. Bhagat, who was the Clerk in the School, and Shri P.N.

Kamble, the then Head Master of the School. The Tribunal holds

that the withdrawal of the amount of Rs.5,500/- on 17-10-2004,

the amount of Rs.17,000/- on 5-12-2004, and the amount of

Rs.2,700/- and Rs.7,000/- on 11-3-2005 in the names of these

persons is not at all explained. The Tribunal further holds that

keeping the pass-book of the respondent No.1, causing him

harassment, was a reason for his absence from the School.

5. With the assistance of the learned counsel for the

petitioners, the respondent No.1-appearing in person, and the

learned Assistant Government Pleader for the respondent Nos.2

and 3, I have gone through the entire record placed before this

Court and I find that the memo of appeal has not been drafted

properly. The respondent No.1 has failed to putforth his case

precisely in the memo of appeal. The Tribunal could not have set

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aside the termination on the sole ground that the Management

had no authority to re-start the enquiry on 11-12-2010. It is

always open for the Management to re-start the enquiry if it is

found that the enquiry conducted is not in accordance with the

rules. The Tribunal has not gone into the aspect of violation of

any procedure in conducting the enquiry. It has also not gone

into the question of perversity or illegality of the findings

recorded by the Enquiry Committee.

6. It is not possible to ascertain from the record placed

before this Court the exact stand of the respondent No.1. The

statement of allegations served upon the respondent No.1 dated

18-12-2010 contains mainly two charges - (i) absence from duty

without permission, and (ii) dereliction of duty in failing to

conduct the classes. The charge No.(ii) levelled in the statement

of allegations seems to be vague and unspecific and no enquiry in

respect of it could have been conducted. Thus the findings

recorded by the Enquiry Committee in respect of these two main

charges are required to be considered by the Tribunal. Similarly,

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the explanation by the respondent No.1 for absence from duty as

well as from the proceedings of the Enquiry Committee, is also

required to be taken into consideration by the Tribunal. This

Court is, therefore, left with no option but to set aside the

decision of the Tribunal and to remit the matter back to it for

decision afresh.

7.

In the result, the petition is allowed. The judgment and

order dated 21-12-2012 delivered by the School Tribunal,

Amravati, in Appeal No.62 of 2011, is hereby quashed and set

aside. The matter is remitted back to the School Tribunal to

decide the appeal afresh within a period of six months from the

date of completion of all the pleadings. The respondent No.1 is

permitted to file a fresh memo of appeal, which shall be treated

as one which is filed within a period of limitation, and the

petitioner-Management shall be at liberty to file its written

statement. If required, the Tribunal may permit the parties to

lead oral evidence. The Tribunal shall also permit the parties to

place on record the documentary evidence. The parties to appear

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before the Tribunal on 28-11-2016. The record and proceedings,

if received, be remitted back to the Tribunal immediately. It is

made clear that no fresh notices shall be issued to the parties

concerned.

8. Rule is made absolute in above terms. No order as to

costs.

                                 ig                   JUDGE.

       Lanjewar