United Sports Club, Hingna Thru. ... vs Rajendra Baliramji Ashtankar & ...
2017 Latest Caselaw 1500 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 WRIT PETITION NO. 1114 OF 2008


 1) United Sports Club,
     Hingna, through its Secretary, 
     Tahsil Hingna, District Nagpur.

 2) Shantiniketan Uchha Prathamik
     Vidyalaya, through its Head Master,
     Rajiv Gandhi Nagar, Hingna Road,
     Tahsil Hingna, District Nagpur.                              ....       PETITIONERS


                     VERSUS


 1) Rajendra Baliramji Ashtankar,
     Aged about 35 years, 
     R/o Plot No.29, Ganguji Layout, 
     Somalwada, Nagpur.

 2) The Education Officer (Primary),
     Zilla Parishad, Nagpur.                                      ....       RESPONDENTS

 ______________________________________________________________

              Shri Rohit Joshi, Advocate for the petitioners, 
  Shri R.R. Pimpalkhute, Advocate h/f. Shri A.D. Mohgaonkar, Advocate
                         for the respondent No.1,
                        None for respondent No.2.
  ______________________________________________________________

                               CORAM : Z.A. HAQ, J.

DATED : 6 APRIL, 2017.

th

ORAL JUDGMENT :

Heard Shri Rohit Joshi, Advocate for the petitioners and

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Shri R.R. Pimpalkhute, Advocate holding for Shri A.D. Mohgaonkar,

Advocate for the respondent No.1.

2. The petitioners/management have challenged the order

passed by the School Tribunal by which the appeal filed by the

respondent No.1 is allowed, the order terminating the services of the

respondent No.1 is quashed and the management is directed to

reinstate the respondent No.1 with continuity of service and to pay the

back wages.

3. It is undisputed that the respondent No.1 was appointed

as an Assistant Teacher on 01-07-1994 after following the prescribed

procedure and his appointment was approved by the Education Officer

by the communication issued on 06-12-1999.

The management issued charge-sheet on 15-12-2003

framing fourteen charges and conducted an enquiry. Two members of

the enquiry committee submitted their report on 11-08-2006 proposing

that the services of the respondent No.1 be terminated which proposal

was implemented by the management and the respondent No.1 was

terminated with effect from 16-08-2006. The respondent No.1

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challenged the termination order before the School Tribunal by filing

appeal which is allowed by the impugned order.

4. The Tribunal has recorded that the conduct of the enquiry

committee appeared to be biased, the respondent No.1 was not

supplied copies of the documents referred in the charge-sheet and the

statements of witnesses recorded in the preliminary enquiry because of

which the respondent No.1 could not defend himself properly. The

Tribunal recorded that most of the charges were stale and enquiry was

vitiated as it continued for three years. The Tribunal has recorded that

the respondent No.1 was not permitted to examine the Head Master

(witness of the management) and the witnesses whose names were

given in the list of witnesses supplied by the respondent No.1. With

the above findings, the Tribunal allowed the appeal filed by the

respondent No.1.

5. The submission on behalf of the petitioners/management

is that the conclusions of the Tribunal are not only unsustainable but

are perverse. It is submitted that the copies of the documents relied

upon by the management were supplied to the respondent No.1 and

the acknowledgment of the respondent No.1 was placed on record

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before the Tribunal which is not properly considered by the Tribunal.

It is further submitted that the enquiry is not vitiated only because

some documents are not supplied to the delinquent employee unless

the delinquent employee pleads and proves that he is put prejudice

because of non-supply of documents in question. It is submitted that

the delay in enquiry is because of non-co-operation of the respondent

No.1 and his nominee and though sufficient opportunities were given

to cross-examine the Head Master, the nominee of the respondent No.1

and the respondent No.1 remained absent and avoided to cross-

examine the Head Master. It is submitted that looking to the nature of

charges framed against the respondent No.1, it is clear that he is not fit

to continue as Teacher in the school. It is prayed that the interim

order be set side and the appeal filed by the respondent No.1 be

dismissed.

6. After hearing the learned Advocates for the respective

parties and examining the documents placed on the record of the

petition, I find that the reasons given by the Tribunal for allowing the

appeal are not proper and only because the respondent No.1 pleaded

that the copies of the documents relied upon in the enquiry were not

supplied to him, the enquiry is not vitiated. The respondent No.1 has

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not pointed out the documents, the copies of which were not supplied

to him and what prejudice is caused to him because of non-supply of

copies of those documents. Similarly the contention of the respondent

No.1 is that he is not given opportunity to defend as he is not given

opportunity to cross-examine the Head Master and to examine his

witnesses, cannot be considered. The roznama of the enquiry shows

that sufficient opportunity was given to the respondent No.1, however,

he failed to avail it. Moreover, there is nothing on record to show that

the respondent No.1 immediately complained to the enquiry

committee that he is not given proper opportunity or he may be

permitted to cross-examine the Head Master and to examine his

witnesses.

The enquiry report is signed by the convener of the

enquiry committee and the State Awardee Teacher. The report of the

enquiry committee is not signed by the nominee of the respondent

No.1, however, the record shows that the nominee of the respondent

No.1 was given intimation by letter sent by speed post on 07-08-2006

and by telegram sent on 08-08-2006 that the meeting of the enquiry

committee for preparing the report was to be held on 11-08-2006.

Inspite of the intimation, the nominee of the respondent No.1 did not

attend the meeting and therefore, the other two members of the

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enquiry committee have rightly prepared and submitted the report to

the management.

7. Though the reasons recorded by the Tribunal for allowing

the appeal filed by the respondent No.1-employee are not proper, I

find that the services of the respondent No.1 could not have been

terminated on the basis of the charges levelled against him and on the

basis of the findings recorded by the enquiry committee. I am

conscious that this Court cannot sit as an appeallate authority over the

conclusions of the enquiry committee and the decision of the

management, however, in the facts of the present case, the facts are

required to be considered. As many as fourteen charges were framed

against the respondent No.1, however, none of them are so serious

that services of the respondent No.1 were required to be terminated.

The endeavour of the management is to substantiate that the

respondent No.1 is not fit to continue as Teacher in the school. The

respondent No.1 was teaching students of Class 1 st to 3rd for sometime

and for sometime students of Class 5 th to 7th. Admittedly from

01-07-1994 till 2003 when dispute arose, the management had not

found any fault in teaching or conduct of the respondent No.1. It is

not the case of the management that from 01-07-1994 till the dispute

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arose in 2003 there were adverse remarks in the Confidential Reports

of the respondent No.1 or the respondent No.1 was given a show cause

notice or warnings. Charge Nos.2, 3, 4, 6 and 11 are mainly about

causing loss of study/teaching to the students. The management has

examined Chief Executive Officer, Head Master and Assistant Teacher

working in the school to prove these charges. There is neither any

averment that the students or their parents complained against the

respondent No.1 nor any parent or student is examined in the enquiry.

Charge No.8 is that the respondent No.1 was found chatting or

sleeping during working hours. The charge is as vague as possible.

Charge No.9 is that the respondent No.1 has cheated the management

by drawing salary for the period for which he was on leave, in

collusion with the Ex-Head Master. There is nothing on record to show

what action is taken by the management against the Ex-Head Master.

Charge No.10 is that respondent No.1 had filed an affidavit in support

of Ms. Charpe in proceedings before this Court because of which the

management was in trouble.

8. As recorded earlier, though this Court cannot

re-appreciate the evidence on record as an appellate authority over the

conclusions of the enquiry committee or the decision of the

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management, this Court cannot overlook the evidence on record if the

facts of the case require. After considering the nature of charges and

the fact that since 01-07-1994 till 2003 and then subsequently during

the pendency of the enquiry also when respondent No.1 continued in

the employment, there is nothing adverse against the respondent No.1,

in my view, the conclusions of the enquiry committee and the

consequential decision to terminate the services of the respondent No.1

are unsustainable. Hence, the conclusions of the Tribunal on this point

are proper, though as recorded earlier reasons are not proper.

9. However, I find that the Tribunal has committed an error

in directing the management to pay the back-wages to the respondent

No.1. The respondent No.1 has not discharged the preliminary burden

of pleading that he was not gainfully employed during the relevant

period. Not only this, after the appeal is allowed by the Tribunal, this

Court has not granted any interim order in this petition, still the

respondent No.1 has not reported on duty and has not taken any steps

to get the order of the School Tribunal implemented/executed.

Though at the time of hearing the Advocate for the respondent No.1

has submitted that the respondent No.1 had continuously made

representations to the management to allow him to resume his duties,

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the representations/communications are of 2008 and there is no

representation/communication since 2009. In these facts, it has to be

held that the respondent No.1 is not entitled for the back wages as

directed by the Tribunal.

10. Hence, the following order :

(i) The order passed by the Tribunal quashing the termination

order and directing reinstatement of the respondent No.1

with continuity of service, is maintained.

(ii) The directions given by the Tribunal to the management to

pay the back-wages to the respondent No.1 are set side.

The petition is partly allowed in the above terms. In the

circumstances, the parties to bear their own costs.

JUDGE adgokar