Public Edn. Society, Murtizapur ... vs Hussainkha Lalkha Pathan & 4 Ors
2017 Latest Caselaw 1560 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH, NAGPUR

                     Writ Petition No.283 of 2009

  1. Public Education Society,
     Murtizapur, Tq. Murtizapur,
     Distt. Akola, through its
     President Sheikh Nasir Sheikh 
     Nazir,
     R/o Railway Cabin Station
     Area, Murtizapur,
     Tq. Murtizapur,
     Distt. Akola.

  2. The Head Mistress,
     National Urdu High School,
     Dhanaj Bk. Tq. Karanja,
     Distt. Washim.                                   ... Petitioners

       Versus

  1. Hussainkha Lalkha Pathan,
     R/o Station Area,
     Near Zakir Kirana Shop,
     Murtizapur,
     Tq. Murtizapur,
     Distt. Akola.

  2. Samirkhan Muzaffarkhan,
     R/o Thugaon Pimpri,
     Tq. Chandur Bazar,
     Distt. Amravati.

  3. Moh. Ziya Ul-Haque Mohd. Ata 
     Ul-Haque,
     R/o Asmas Colony,
     Juni Basti,




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       Badnera, Tq. and Distt. Amravati.

  4. Yunuskhan Daulatkhan,
     R/o Kamargaon,
     Tq. Karanja [Lad],
     Distt. Washim.

  5. The Education Officer [Secondary],
     Zilla Parishad, Washim,
     Tq. and Distt. Washim.                            ... Respondents



  Shri S.M. Vaishnav, Advocate for Petitioners.
  Shri Mohammed Ateeque, Advocate for Respondent Nos.1 to 4.
  Shri   K.L.   Dharmadhikari,   Assistant   Government   Pleader   for 
  Respondent No.5.


               Coram : R.K. Deshpande, J.

th Date : 10 April, 2017

Oral Judgment :

1. The School Tribunal, in appeals under Section 9 of the

Maharashtra Employees of Private Schools (Conditions of

Service) Regulation Act, 1977 ("the MEPS Act") preferred

separately by the respondent Nos.1 to 4, has directed

reinstatement of the said respondents in service with continuity

and full back wages. This is challenged by the Management in

the present petition. The matter is settled so far as the

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respondent Nos.2 and 3 in the present petition are concerned.

Now, the dispute remains only with respect to the respondent

No.1-Hussainkha Lalkha Pathan, and the respondent

No.4-Yunuskhan Daulatkhan, appointed as Assistant Teacher and

Peon in the School run by the petitioners.

2. According to the respondent Nos.1 and 4, they were

prevented by the petitioner-Management from signing the muster

roll with effect from 11-7-2007; and treating it to be otherwise

termination from service, they filed Appeals No.46 of 2007 and

50 of 2007. It was the specific stand taken by the Management

before the School Tribunal that the services of the respondent

Nos.1 and 4 were never terminated, but they themselves

remained absent from duty with effect from 11-7-2007. The

School Tribunal decided both these appeals by a separate

judgment delivered on 10-4-2008. A specific finding is recorded

by the School Tribunal in both these matters that the respondent

Nos.1 and 4 were illegally prevented by the Management from

signing the muster roll, which amounted to otherwise

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termination, attracting the provision of appeal under Section 9 of

the MEPS Act. The decision rendered in both these appeals had

become final and it had not been challenged by the Management.

3. Undisputedly, the respondent Nos.1 and 4 were not in

service from 11-7-2007 till the decision of the School Tribunal on

10-4-2008 granting them reinstatement and back wages. It is

during the pendency of these appeals that the common statement

of allegations dated 11-12-2007 was issued by the Management

to all four employees and the Enquiry Committee was

constituted, consisting of two persons. All the respondent Nos.1

to 4 remained absent, but challenged the constitution of the

Enquiry Committee. The School Tribunal, in the impugned

judgment, has recorded the finding that the constitution of the

Enquiry Committee was in violation of sub-rule (2) of Rule 36 of

the Maharashtra Employees of Private Schools (Conditions of

Service) Rules, 1981 ("the MEPS Rules"). Rule 36 of the MEPS

Rules requires the Management to constitute an Enquiry

Committee consisting of three persons, including one nominee of

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employee, who has to be a State Awardee Teacher. Each of the

delinquent employees has a right to appoint his separate

representative on the Enquiry Committee. The School Tribunal

considers that if a common enquiry is to be conducted, then the

Enquiry Committee would consist of seven members, which is

again contrary to sub-rule (2) of Rule 36 of the MEPS Rules. It is

on this ground, the School Tribunal has set aside the termination

of services of the respondents, effected by the order

dated 17-6-2008 with effect from 20-6-2008 and directed their

reinstatement in service with continuity and full back wages.

4. Shri Vaishnav, the learned counsel appearing for the

petitioners, could not point out any substantive challenge to the

aforesaid findings recorded by the School Tribunal. The position

remains undisputed. I have also gone through the statement of

allegations and I find that the allegations are too vague and

unspecific. There is no specific role attributed to each of the

delinquent employees. In fact, no enquiry, muchless a common

enquiry, can proceed on the basis of the allegations so levelled.

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There cannot be a common Enquiry Committee for enquiring into

the allegations levelled against four different employees

occupying different posts. The rules do not permit constitution of

common Enquiry Committee, particularly when each individual

delinquent employee has a right under the rules to nominate his

own representative, who has to be a State Awardee Teacher, on

the Enquiry Committee. The constitution of Enquiry Committee

under sub-rule (2) of Rule 36 of the MEPS Rules cannot be of

more than three persons. No fault can be found with the findings

recorded by the School Tribunal.

5. As pointed out earlier, undisputedly, the respondent

Nos.1 to 4 were not in service from 11-7-2007 till the decision of

the School Tribunal on 10-4-2008, granting them reinstatement

and back wages. The respondents were reinstated in service after

10-4-2008. In view of this, it is surprising as to how the

Management initiated enquiry against them by issuing statement

of allegations on 11-12-2007. The Management having suffered

the finding of the School Tribunal in Appeals Nos.46 of 2007 and

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50 of 2007, the initiation of enquiry by issuing show cause notice

on 11-12-2007 was during the period when there existed no

relationship of "employer and employee" between the "petitioners

and the respondent Nos.1 to 4". The termination on the basis of

such enquiry was effected on 17-6-2008. The entire action on the

part of the Management appears to be clearly mala fide and

vindictive. There is no ground made out to interfere in the

findings recorded by the School Tribunal.

6. Obviously, with all these illegalities committed by the

Management, the question of denial of back wages to the

respondent Nos.1 and 4 does not at all arise and no fault can be

found with the view taken by the Tribunal in directing payment

of back wages, particularly in the light of the decision of the Apex

Court in the case of Deepali Gundu Surwase v. Kranti Junior

Adhyapak Mahavidyalaya (D. Ed.) and others, reported in

(2013) 10 SCC 324.

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7. In view of above, the petition is dismissed. Rule stands

discharged. No order as to costs.

Judge.

Lanjewar