The Shah Babu Edun. Socity., Thr. ... vs Anis Khan Yunus Khan And 2 Ors
2017 Latest Caselaw 6629 Bom

   lpa92.09                                                                    1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

            LETTERS PATENT APPEAL NO.  92  OF  2009
                               IN
                WRIT PETITION  NO.  3505  OF  2008
                             WITH
           CROSS OBJECTION STAMP NO. 13872  OF  2009
           IN LETTERS PATENT APPEAL NO.  92  OF  2009


  1. The Shah Babu Education Society,
     Patur, Registration No. 67-AKL,
     Patur, District - Akola, through its
     Chief Executive Officer, c/o Shah
     Babu Urdu High School, Patur,
     District - Akola.

  2. The Head Master,
     Shah Babu Education Society,
     Patur, District - Akola.                 ...   APPELLANTS.

                    Versus

  1. Anis Khan Yunus Khan,
     aged about 40 years, r/o
     Qazi Pura, Patur, Taluka -
     Patur, District - Akola.

  2. The Presiding Officer,
     School Tribunal, Amravati
     Division, Amravati.

  3. The Education Officer,
     Zilla Parishad, Akola,
     District - Akola.                        ...   RESPONDENTS


  Shri A.A. Naik, Advocate for the appellants.
  Shri S. Z. Quazi, Advocate for respondent No. 1.
  Ms. A.R. Kulkarni, AGP for respondent Nos. 2 & 3.
                     .....



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    lpa92.09                                                                            2



                                 CORAM :       B.P. DHARMADHIKARI &
                                               ARUN D. UPADHYE, JJ.

AUGUST 31, 2017.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

After hearing Shri Naik, learned counsel for the

appellant, Shri Quazi, learned counsel for respondent No. 1 and

Ms. A.R. Kulkarni, learned AGP for respondent Nos. 2 & 3, we

find it not necessary in present LPA to narrate the facts at

length.

2. By order dated 08.04.2000, the appellant -

management terminated the services of Respondent No. 1 with

effect from 10.04.2000. This termination was set aside by the

School Tribunal in Appeal No. 16 of 2000 and this led to a de

novo inquiry.

3. The de novo inquiry was thereafter held and again

by order dated 30.08.2006, Respondent No. 1 was terminated

with effect from 01.09.2006. On 19.05.2007, the appellant -

management modified this termination order and it was made

effective from 10.04.2000. In other words, Doctrine of Relation

Back was given effect to.

4. The second termination came up before the School

Tribunal in Appeal No. 28 of 2006. The School Tribunal has

dismissed that appeal on 14.03.2008. Respondent No. 1 then

approached this Court in Writ Petition No. 3505 of 2008. The

learned Single Judge has vide judgment dated 21.01.2009 set

aside that termination and allowed the management to hold the

de novo inquiry by treating the petitioner before him, as under

suspension from 10.04.2000 and to pay him arrears of

subsistence allowance before commencement of such inquiry.

5. This judgment dated 21.01.2009 forms the subject

matter of present Letters Patent Appeal.

6. This Court on 17.03.2009 directed status quo and it

has been continued thereafter. With the result, de novo inquiry

has not been held.

7. It is not in dispute that the learned Single Judge has

found the inquiry vitiated as the management representative

has also functioned as Convener of the Inquiry Committee. The

other reason given is non payment of subsistence allowance.

8. Respondent No. 1 has filed a Cross Objection vide

Stamp No. 13872 of 2009 in present matter, urging that the

judgment of the Hon'ble Apex Court in the case of Vidya Vikas

Mandal & Anr. vs. Education Officer & Anr., reported at 2007 (3)

Mh. L.J. 801, has not been considered.

9. A perusal of judgment of the Hon'ble Apex Court

(supra) shows that the Inquiry Committee constituted under

Rule 36 of the Maharashtra Employees of Private Schools

(Conditions of Service) Rules, 1981, (hereinafter referred to as

MEPS Rules), has to deliberate on material coming on record

and thereafter submit its report. The Hon'ble Apex Court lays

down that as per Scheme of Rule 37 of the MEPS Rules, joint

consideration by all three members is must.

10. Our attention has been invited to the judgment of

the learned Single Judge of this Court in the case of Jaywant

Govindrao Sanap vs. Janki Shikshan Prasarak Sanstha,

Kaulkhed, Akola & Anr., reported at 2015 (5) Mh. L.J. 88,

where the learned Single Judge has distinguished the said

judgment of the Hon'ble Apex Court. The relevant discussion is

contained in para 9. The learned Single Judge has found that

in the facts before him, all three members of the Inquiry

Committee submitted their three separate reports on the same

day but after deliberations and discussions amongst themselves.

Thus, there was joint application of mind and attempt to

reconcile differences and when those attempts failed, all three

members submitted their separate reports. The learned Single

Judge, therefore, rightly found that in those facts, the judgment

of the Hon'ble Apex Court was not attracted.

11. In present matter, it is not in dispute that the

representative of Respondent No. 1 has submitted his separate

report. The representative of the appellant - management

along with State Awardee Teacher have submitted their joint

report. Thus, there are two inquiry reports on record. Both

reports do not refer to each other or then do not show any joint

exercise undertaken by all three members together to

appreciate the material which has come on record. The Inquiry

Committee of three members consisting of a representative of

the employee, representative of the employer and an

independent person like State Awardee Teacher is deliberately

prescribed to have a proper appreciation of rival contentions on

the strength of material coming on record during inquiry. This

is possible only when all three members sit together and

deliberate on the documents or oral evidence brought on

record. The deliberations will expose incorrectness or error in

the approach of some members and thereby a chance of

reconciliation and rectification would be available to the

Inquiry Committee. Thus, after joint exercise, a single inquiry

report with conscience of all can emerge.

12. Here, according to Respondent No. 1, as

Respondent No. 1 was not paid subsistence allowance, his

representative could not attend on few dates during inquiry

proceedings. Shri Naik, learned counsel points out that still

that representative has submitted a report on merits and has

not pointed out any such difficulty in attending the sittings of

Inquiry Committee. He further adds that said representative of

Respondent No. 1 in fact appeared before the School Tribunal

and assisted the cause and case of the employee.

13. Whether non payment of subsistence allowance in

present facts has resulted in any prejudice to respondent No. 1,

is, therefore, a moot question. If there is no prejudice and the

employee has attended all inquiry proceedings and effectively

defended himself, non payment may not be held fatal.

Similarly, if his representative has appeared on all relevant

dates, attended the proceedings, again a prejudice may not be

seen. But here, the representative of Respondent No. 1 has not

in his report pointed out that as he did not receive his fees, he

could not remain present and, therefore, he has not heard the

evidence and hence was not in a position to submit effective

report. Had he raised such a contention in his report, the

situation would have been entirely different. His omission to

do so, coupled with his active participation in the matter before

the School Tribunal, reveals something else. However, this

discussion need not be stretched further as it would not lead to

any fruitful result. The fact is, there is no inquiry report as

required under Section 37(6) of the MEPS Rules. Three

members of Inquiry Committee have to sit together and attempt

to apply mind jointly to find out whether a single report can be

submitted. If a single report cannot be submitted and there is

difference of opinion, its reflection would also surface in the

reports submitted separately by such members.

14. Here, apparently in absence of such exercise, there

is no valid inquiry report submitted by either representative of

Respondent No. 1 or then by representative of the appellant. If

representative of Respondent No. 1 could not appear as he did

not receive his remuneration, he can make that grievance

during that deliberations and point out his inability to

appreciate the material on record. The Inquiry Committee can

suitably take its cognizance and comment upon it. Similarly, if

there is any other prejudice suffered by Respondent No. 1 -

employee, he has to raise that plea so as to enable its

consideration by the management, by Inquiry Committee and

thereafter by the School Tribunal. In the absence of such plea,

mere non payment of subsistence allowance may not in all

cases be fatal to the departmental inquiry.

15. In this situation, as we find that an error has crept

up at the stage of preparation of inquiry report, the matter

needs to be sent to Inquiry Committee consisting of

representative of Respondent No. 1, representative of

appellants and State Awardee Teacher to apply their mind

afresh to find out whether the misconduct as alleged has been

proved or not proved.

16. However, considering the grievance raised about

non payment of subsistence allowance, we find it appropriate

to direct the appellants to treat Respondent No. 1 as under

suspension from 01.01.2017 onwards till appropriate orders in

the matter are passed. The arrears of Subsistence Allowance

for the period from 01.01.2017 till 31.08.2017 shall be paid by

the appellants to Respondent No. 1 within a period of 15 days

but the same shall be subject to further orders of the Inquiry

Committee in the matter. The Subsistence Allowance due from

01.09.2017 shall be paid regularly as per law. Needless to

mention that Respondent No. 3 - Education Officer shall

reimburse to the appellants the amount of subsistence

allowance.

17. The Inquiry Committee shall meet within two weeks

from today and complete its deliberations within next four

weeks. The report shall be made available to the appellants -

management within a further period of two weeks. The

appellants - management shall pass suitable orders thereafter

within next four weeks.

18. With these directions and keeping all rival

contentions open, we partly accept the Cross Objection raised

and dispose of both the proceedings accordingly. However,

there shall be no order as to costs.

           JUDGE                                                     JUDGE
                                      ******
  *GS.