Dadarao Lakkhuji Dambhare vs Rashtraseva Samaj, Thr ...
2017 Latest Caselaw 9393 Bom

                                                        1
                                                                                    lpa 206.10 judg.

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                         NAGPUR BENCH : NAGPUR.

                               Letters Patent Appeal No.206 of 2010
                                                 In
                                 Writ Petition No.2089 of 2001 (D)


Dadarao Lakkhuji Dambhare,
Aged 61 years, R/o.- Retired Headmaster,
R/o.-Plot No.20, Ashirwad Nagar, Hudkeshwar, Nagpur.           ....  Appellant 

                                                      - Versus -

1]       Rashtraseva Samaj,
         A registered Public Trust,
         through its Secretary Krishnarao Jagoba Parate,
         Aged 74 years, R/o.-Plot No.270/1, Laxmi Nagar, Nagpur.       

2]       Enquiry  Committee
         through its Convener Shri Baburao Bhayyaji Thombre,
         R/o.-Plot No.5, Bharat Nagar, Nagpur.     

3]       The Education Officer (Secondary),
         Zilla Parishad, Nagpur.

4]       The Presiding Officer, School Tribunal, Nagpur.          .... Non-Applicants.

Shri  R.P. Joshi, Advocate for appellant.
Shri  R.S. Parsodkar, Adv for resp. no.1.
Shri  Jawade, AGP  for resp. no.3.
------------------------------------------------------------------------------------------------------------

                                                     Coram : B.P. Dharmadhikari  &
                                                                  Mrs. Swapna Joshi, JJ.

Dated : 07th December, 2017.

ORAL JUDGMENT (Per B.P. Dharmadhikari, J.)

The appellant who has retired as Headmaster from respondent no.1 establishment school assails the judgment delivered by learned Single Judge

lpa 206.10 judg.

dated 19-11-2009 in Writ Petition No.2089 of 2001. By the said judgment, the learned Single Judge has set aside the judgment and order dated 04-04-2001 delivered by Presiding Officer, School Tribunal, Nagpur in favour of the appellant in Appeal No.STN/05/2000. The School Tribunal has set aside the decision of Managing Committee dated 02-01-2000 and termination order 03-01-2000 issued by the employer.

2] It is not in dispute that the appellant in order to avoid Enquiry Committee has filed a Civil Suit No.2214 of 1999 in the Court of 3 rd Joint Civil Judge, Junior Division, Nagpur challenging the departmental enquiry proceedings and sought permanent injunction. In that suit, notice was issued to respondent no.1 employer and it was made returnable on 20-12-1999. On that day, after employer appeared, Civil Court granted status quo up to 06-01-2000. On 06-01-2000, status quo was not continued further and again an interim order of status quo was granted on 27-01-2000. This interim order was to restrain the employer from appointing new person as Headmaster. This interim direction continued till 06-07-2000. It appears that, thereafter, in appeal before the School Tribunal, the School Tribunal continued that interim order further till 29-07-2000. This interim order lasted till 31-03-2005 when the appellant superannuated. Thus, despite order of termination dated 03-01-2000, the appellant continued to work as Headmaster and retired as such on 31-03-2005.

3] Before us, it is not in dispute that he received his salary accordingly for the work done. However, because of the order of dismissal and challenge pending thereto, he was getting provisional pension till the writ petition of the management was allowed by the learned Single Judge.

4] Learned Advocate Shri R.P. Joshi appearing for the appellant wanted to invite attention of this Court to various disputes and facts to urge that

lpa 206.10 judg.

because of previous strained relations and mala fides the appellant has been victimized. In addition, he also submitted that there was no resolution of the Management to initiate any departmental enquiry and the issuance of charge sheet therefore itself is void. However, during arguments as the appellant who is now more than 70 years old, to avoid any possibility of remand back the matter to School Tribunal, he upon instructions, expressly gave up the said challenge.

5] He submitted that 33 charges were levelled only with oblique motive and the appellant was not given necessary documents to submit effective reply to it. He urged that for certain conducts alleged to be misconduct by the appellant, the Chief Executive Officer himself was found at fault by the Education Officer and still said incident was used to formulate this chargesheet. He was not given opportunity to have his representative on Enquiry Committee and ultimately, in absence of such representative hastily on four dates i.e. on 06-12-1999, 07-12-1999, 08-12-1899 and 11-12-1999 the enquiry proceedings were completed. Though, even at that juncture, the appellant was given opportunity and accordingly the appellant had sought permission to have Shri Gaikwad as his representative on Enquiry Committee and sought adjournment, the respondent did not yield to the request for adjournment. The order of status quo granted by Civil Court was also overlooked and in its meeting on 30-12-1999 the findings of Enquiry Committee are reached and punishment of dismissal was also imposed. He has taken us through the judgment delivered by the School Tribunal to urge that this undue haste and resultant breach of principles of natural justice has led School Tribunal to allow the appeal. He points out that the School Tribunal, however, did not then comment upon evidence of three witnesses recorded by the employer and has not come to the conclusion that the findings in enquiry report are supported by that evidence.

lpa 206.10 judg.

6] Inviting attention to the judgment delivered by the learned Single Judge, he submits that in this backdrop the learned Single Judge ought to have commented on availability or otherwise of material against the appellant to sustain enquiry report or then to support the dismissal order. He further points out that the arguments of mala fides or strained relations and therefore a vague or evasive charge sheet are not looked into. He makes a grievance that only on strength of general observations, the finding of the School Tribunal has been overlooked and the order of punishment has been restored. According to him, thus, there is omission to exercise the jurisdiction as per law.

7] Though the learned Advocate for the appellant wanted us to look into instances of mala fides, as the matter pertains to dismissal after departmental enquiry, we have not permitted the learned Advocate to go into that aspect.

8] Learned Advocate Shri Parsodkar appearing for respondent no.1 employer has pointed out that the School Tribunal as also the learned Single Judge have appropriately looked into the conduct of the present appellant not only forming part of charge sheet but also during departmental enquiry. He submits that even during departmental enquiry in school premises the appellant has behaved violently and pelted stones but then did not put his signature anywhere. He fabricated the documents to show that on 14-09-1999 he had named Shri. Gaikwad as representative. The provisions of Rule 36(4) are relied upon by him to urge that as there was no representative nominated by the appellant within time stipulated therein, the constitution of Enquiry Committee was complete. He submits that Shri Gaikwad nowhere expressly gave his consent before commencement of enquiry proceedings and as such the Enquiry Committee was justified in proceeding further. He further contends that the School Tribunal could not have, in present facts recorded any finding on merits

lpa 206.10 judg.

of the enquiry proceedings. There was no reply to charge sheet, even his representative to be nominated on Enquiry Committee was not nominated and three witnesses examined by the Management were not subjected to any cross examination. Thus, the appellant boycotted enquiry. He has relied upon judgment of Hon'ble Apex Court in the case of Bank of India vrs Apurb Kumar Saha, reported at 1995 II LLJ 18, to urge that in such circumstances there cannot be any finding of breach or violation of principles of natural justice or perversity in conclusion of Enquiry Officer. He contends that in this situation when the School Tribunal has not found anything wrong with the findings of Enquiry Committee, the learned Single Judge has rightly proceeded further and acted upon the same.

9] He submits that though, in present matter, the appellant may have received salary as Headmaster till 31-05-2005, because of dismissal after departmental enquiry, he is not entitled to receive any pension or retirement benefits. He has invited our attention to the assertions contained in charge no.8 to show that the employees who were permitted to retire voluntarily were then taken back unauthorizedly and there was huge loss of public revenue.

10] He submits that, in this situation, when on the findings of Enquiry Committee there are concurrent conclusions, this Court in Letters Patent Appeal cannot reverse the same. He, therefore, prays for dismissal of Letters Patent Appeal.

11] The learned Advocate for appellant in brief reply submits that three employees who attempted to proceed voluntary retirement could not do so as their request was not accepted and they continued to work and receive salary, with the result there is no loss to the State Exchequer. He further submits that there is no loss to the public revenue on that count. Correctness of this

lpa 206.10 judg.

recovery forms subject-matter of Writ Petition No.2184 of 2008 listed with this Letters Patent Appeal for hearing. He again invited our attention to the fact that the appellant was given opportunity to bring his representative to act on Enquiry Committee even on occasion when Enquiry Committee first sat and at that juncture because of illness of that person, the adjournment was sought. He, therefore, submits that the School Tribunal has rightly found undue haste on part of respondent no.1 and this aspect of matter has also lost sight of by the learned Single Judge.

12] The judgment delivered by School Tribunal on 04-04-2001 considers only one point, whether impugned termination order dated 03-01-2000 is as per the provisions of the Maharashtra Employees of Private Schools (Conditions of Services) Act and Rules, 1981. In para 23 thereof, the School Tribunal mentions Rules 36 and 37. In para 26, the School Tribunal has taken note of RCS No. 2214 of 1999, status quo granted to it on 20-12-1999 and violations thereof by Enquiry Committee. At the end of para 26, the conclusion reached is despite status quo order the Enquiry Committee ahead and School Tribunal therefore inferred unwarranted, bias and mala fides. It, therefore, has recorded "the Enquiry Committee's findings therefore, unsustainable". In para 27 (page 50 of the petition), the School Tribunal has observed as under :-

"27. Thus, for the reasons stated above, the respondent Management and Inquiry Committee did not act and functioning as per the provisions of the MEPS Rules and, therefore, I answer the point in the negative."

Thus, here it has answered point no.1 framed by it in the negative.

It, therefore, concluded that the order of termination dated 03-01-2000 is not as per the provisions of MEPS Act and Rules.

lpa 206.10 judg.

13] It has then proceeded further to note other contentions of the appellant and found that there was nothing in Rule 36(1) of the MEPS Act to support demand of documents for filing reply to the statement of allegations. Then in para 32, it has observed that the attitude of the appellant was non cooperative and obstructive. It did not accept the appellant's contention that he was not supplied the list of witnesses and documents and even when the appellant himself was in-charge of all documents his demand therefor could not be understood. It has also observed that he was provided all documents with the charge sheet and the names of witnesses were also supplied.

14] The contention of the appellant that the Enquiry Committee did not meet on 08-12-1999, 09-12-1999 and 11-12-1999 in school premises is also looked in para 33. It has found that when he was non-cooperative, he cannot raise such contention. It also took note of fact that the appellant has submitted couple of affidavits and those affidavits cannot be accepted because of strained relations between the appellant and the Management. In para 34, it has found that the appellant was given fullest opportunity to nominate his nominee but he failed to avail it and though opportunity was given to him to point out and prove letter dated 14-10-1999 he could not encash it. In para 35, the School Tribunal found that there is absolutely no material to prove accusation that the principles of natural justice were not followed. In para 36, it has again looked into the previous conduct and found that there was an attempt to obstruct the enquiry somehow by hook or crook. In para 37, again it has been found that the full opportunity was given to the appellant to defend. It has also concluded that he failed to communicate the name of nominee on Enquiry Committee and therefore Shri. Gaikwad could not act as Enquiry Committee Member. It has noted that in Enquiry Committee meeting dated 07-12-1999, the appellant refused to put signature and used unparliamentary words. In para 38, it has

lpa 206.10 judg.

observed as under :-

"38. In part B of the Inquiry Committee Report reveals that there are 33 charges and out of that 32 charges are proved. 3 witness were examined. Though the opportunity was given to the appellant, the appellant failed to cross-examine the witness. As such the Inquiry Committee concluded there is sufficient material on the record and all charges which are serious nature stood proved."

15] On report submitted by Enquiry Committee, its conclusion in para 39 reads as under :-

"39. The last Part 'C' of the Inquiry Committee Report concluded that the 32 charges which are serious nature, and, therefore, there is no other way when to recommend punishment of termination. Accordingly, the punishment as recommended was approved and executed by the respondent no.1 secretary."

16] In the wake of this application of mind, the School Tribunal because of its answer to point framed by it in negative, as mentioned supra, has set aside the termination order.

17] This challenge was looked into by the learned Single Judge in Writ Petition No.2089 of 2001 and the contentions raised by the petitioner are contained in para 2. The reply arguments on behalf of the appellant (respondent in writ petition) are in paras 3 and 4. In para 5 the reply given by learned Advocate of the petitioner appears. The application of mind of learned Single Judge is from para 6 onwards.

lpa 206.10 judg.

18] Submissions made by the appellant on status quo order passed by the Civil Court or then evaluation of its impact by the School Tribunal in its judgment are brushed aside in para 8 by observing that those submissions have no relevance in view of superannuation of the appellant. In para 9, the learned Single Judge looked into the grievance about non supply of documents. In para 10, there is mention of Rule 36 and then the efforts made by the appellant to show that Shri Gaikwad was his representative. The learned Single Judge found that neither the appellant nor said Shri Gaikwad entered witness box before the School Tribunal to depose in this respect. It has then looked into the conduct of the appellant and found that the burden to demonstrate that Shri Gaikwad was his representative was upon the appellant but he failed to discharge it. It has taken note of contrary stand of both the parties. In this respect, it has found insistence upon the appellant to send communication along with consent letter of Shri Gaikwad on 14-10-1999 by RPAD, unsustainable. It has concluded that after said period as per Rule 36(4) the appellant lost right to nominate anybody on Enquiry Committee. In para 11, contention that the Enquiry Committee did not meet in school premises or did not meet at all has been negatived and the learned Single Judge found that the appellant himself had decided not to participate in enquiry proceedings. The learned Single Judge finds that if he did not attend on single date of enquiry nor made any request for adducing the evidence in defence, it cannot be said that he was denied any opportunity. The plea of mala fides is therefore brushed aside in para 10 because of non participation in Enquiry Committee. The learned Single Judge has found that the entire evidence tendered by Management went unchallenged and since the findings of fact recorded by Enquiry Committee as also the School Tribunal are as per the facts and documents on record and the other evidence, even on merits of enquiry the learned Single Judge found that the charges were proved. Hence, the writ petition came to be allowed.

lpa 206.10 judg.

19] It is settled law that when the dismissal is after departmental enquiry and it forms subject matter of challenge before any Court, the Court has to first formulate preliminary issue regarding fairness or otherwise of Departmental Enquiry. If the enquiry is found to be vitiated, the employer is to be given chance to lead evidence to prove misconduct again. The enquiry proceedings can begin de novo or then from stage at which lacuna /error was noticed onwards.

20] Here the appellant did allege mala fides and therefore claimed victimization. The School Tribunal has at more than one place recorded finding of strained relations. The charges are about 33 in numbers and though the mention of all charges is not necessary at this stage, it is to be noted that statements of allegations was sent to the appellant on 01-02-1999. A formal charge sheet was then drawn and it is served on the appellant along with letter dated 22-10-1000. The period of misconduct as can be seen from various charges is from 06-12-1999 (charge no.32), March, 1996 ( charge no.17), May to August, 1989 (charge no.7) and April, 1986 (charge no.3).

21] Thus, in October, 1999, charges framed for period of last 10 to 12 years were levelled against the appellant. It is, in this backdrop, we have looked into the communication sent immediately before commencement of effective hearing by Enquriy Committee. The appellant got communication dated 27-11-1999 and in it he was informed that the meetings of Enquiry Committee then scheduled on 29-11-1999, 30-11-1999, 01-12-1999 and 02-12- 1999 were rescheduled because of on going election work. The rescheduled dates were 07-12-1999, 08-12-1999, 09-12-1999 and 11-12-1999. In last para of this letter again reference is made to nomination of his representative by appellant on Enquiry Committee. The appellant has been called upon to remain present on those dates. In reply thereto, he reiterated that on 14-10-1999 he

lpa 206.10 judg.

had forwarded name of Shri Gaikwad along with his consent to Chief Executive Officer Shri Parate by RPAD. Similarly, he pointed out that it was also forwarded under UCP. He, therefore, requested the convener of Enquiry Committee to make available necessary records due to proposed commencement of effective hearing and in alternate, prayed for postponement of meeting till his grievance was redressed. It is to be noted that in said communication dated 27-11-1999, in para 2, the appellant was again asked to remain present with his representative on the dates mentioned therein i.e. on 07-12-1999 onwards.

22] The appellant, thereafter, has claimed that he forwarded a telegram to convener of Enquiry Committee Shri Thombare pointing out the illness of his representative Shri Gaikwad and sought adjournment of 15 days. The certified copy of this telegram sent on 06-10-1999 is on record, Shri Gaikwad himself has sent a letter stating that he was on leave from 06-12-1999 to 11-12-1999 because of ill health and therefore he was not in position to attend the meetings as scheduled. In this letter he described himself to be the representative of the present appellant. This request for adjournment made by Shri Gaikwad in his above capacity is served by hand upon the convener of the Enquiry Committee.

23] The Enquiry Committee, thereafter, has met, as scheduled. It has recorded statements of three witnesses in this very first hearing. The brother-in-law of Chief Executive Officer Shri Krushna Likhar (Clerk) was examined as first witness. Total 8 questions were put to him. Then a Peon by name Shri Chaudhari was examined as second witness and questions at serial nos. 9 to 16 were put to him. Thereafter, statement of one Bhaiyyaji Parate, the retired Assistant Teacher (cousin of Chief Executive Officer) was recorded and question nos. 17 to 21 were put to him. The name of fourth witness namely Ajay Krusharao Parate was deleted from the list of witnesses. These facts are seen in

lpa 206.10 judg.

the inquiry report itself, but the questions or answers are not produced even before the School Tribunal.

24] This material has been then sent by RPAD on 14-12-1999 to the appellant and enquiry report shows that the envelope containing the said material was received back on 23-12-1999 by the convener with postal endorsement " not claimed".

25] The Enquiry Committee then meet on 30-12-1999. Even on 30-12-1999 the Enquiry Committee is shown as consisting of one Shri Baburao Bhaiyyaji Thombare as convener, Shri P.D. Deshmukh as State Awardee Teacher. At serial no.3 against the words "the representative of Headmaster" there is remark put "name not communicated".

26] The Enquiry Committee of two has then looked into the proceedings and prepared its report. Report in part A is about the actual proceeding of Enquiry Committee and the events which transpired after it was constituted. Part B is about the proceeding undertaken by it as Enquiry Committee.

27] Charge no.3 regarding some financial wrongdoings is considered by Enquiry Committee and it mentions that in support of the said charge the Chief Executive Officer has produced evidence no.5 and evidence nos. 35 and

36. As the appellant did not participate evidence nos.35 and 36 could not be handed over to him. It is further remarked that the appellant did not attend the meetings of Enquiry Committee and did not submit any document to counter the charge. The evidence available or deposition of above three witnesses on charge no.3 does not find any mention. We need not elaborate on this because even in relation to next charge i.e. charge nos. 4 and 5 again oral evidence, if

lpa 206.10 judg.

adduced, has not been commented upon. In relation to charge no.15 which is about absence of appellant in school without getting leave sanctioned and drawing salary for that day thereby causing loss to government again no oral evidence has been mentioned. No where contents of evidence 5, 35 and 36 or any other document find mention. Enquiry report itself is therefore not a speaking document.

28] As this enquiry report as such, contents of documents or then oral evidence adduced in the shape of 21 answers to 3 witnesses to prove above 32 charges has not been commented upon either by the School Tribunal or by the learned Single Judge, we do not wish to delve more into this aspect.

29] While commenting upon judgment of School Tribunal, we have briefly noted the mode and manner in which it has applied its mind in para 26. It has taken note of undue haste shown by the Management and then answered point framed by it in favour of the appellant. However, little thereafter it has also proceeded to blame the appellant and turned down his submissions about non service of list of witnesses and not forwarding the documents. It has also turned down his contention that the meetings of the Enquiry Committee were not held in School premises. It has not accepted the affidavits tendered by him in support of this submission because of strained relations. However, its application of mind reveals no consideration on correctness of findings of the enquiry officer. That exercise has not been taken up by the School Tribunal in present matter. In this respect, we may point out the judgment of Hon'ble Apex Court in case of Bharat Forge Co. Ltd. vrs A.B. Zodge and another, reproted at (1996) 4 SCC 374, where Hon'ble Apex Court has held that if the findings recorded are found to be perverse, the employer again needs to be given an opportunity to prove misconduct. Thus, merely because the findings are perverse or then enquiry is found to be violating principles of natural justice, the

lpa 206.10 judg.

reinstatement cannot be straightway ordered.

30] When these lacunae in the appreciation of controversy by the School Tribunal ought to have been highlighted by the learned Single Judge, as already noted supra, the learned Single Judge has again found it not necessary to delve into the said niceties. The School Tribunal found that in the face of status quo order the employer has shown undue haste in conducting a meeting of the Enquiry Committee on 30-12-1999 or then in taking a resolution on 02-01-2000 and issuing order of termination on 03-01-2000. The status quo granted on 20-12-1999 was in force up to 06-01-2000. This fact noticed by the School Tribunal is found irrelevant by the learned Single Judge in para 8 of judgment delivered in writ petition because of superannuation of respondent no.2 i.e. the present appellant. It is apparent that when the validity of dismissal order dated 03-01-2000 was in issue, superannuation on 31-03-2005 was not at all decisive and the learned Single Judge ought to have looked into the correctness of said finding.

31] In this situation, we find that the judgment delivered by the School Tribunal in favour of the appellant as also judgment delivered by learned Single judge in favour of respondent no.1 not free from jurisdictional errors. Here the first effective sitting of the Enquiry Committee began in first week of December 1999 and the appellant then had for reason of illness of his representative Shri Gaikwad sought adjournment. Gaikwad himself was also on leave. Why the sitting could not be adjourned thereafter is not clear. Why the "status quo" order given by Civil court needed to be ignored is also not clear and employer has not explained it. We cannot therefore presume that the appellant had boycotted the departmental inquiry. His conduct spread over past 12 to 13 years was being looked into and he was trying to procure the documents. He also approached Civil Court for redressal of his grievance and got interim

lpa 206.10 judg.

protection. Judgment of Hon'ble Apex Court in Bank of India v. Apurb Kumar Saha (supra) has no relevance in these facts.

32] Moveover, as facts now demonstrate, after 31-03-2005 the appellant has already superannuated and the provisions of MEPS Act and Rules do not permit holding of departmental enquiry against the superannuated employee.

33] Suffice it to say that on 27-11-1999, the Management extended one more opportunity to the appellant to bring his representative to act as Enquiry Committee Member and therefore the Enquiry Committee which recorded statements of witnesses was not duly constituted till then. The efforts made by the appellant thereafter or truth of illness of Gaikwad nowhere find any rejection. Because of strained relations though the Civil Court had granted status quo, the management has proceeded further without putting on record any justification therefor.

34] When the appellant has retired on 31-03-2005, whether the Management was justified in framing all 32 charges or then only few of charges of recent origin could have been only sustained through 21 answers which has come on record and those charges can be said to be established are all hypothetical issues at this stage. Neither the School Tribunal has looked into evidence of those three witnesses and commentated upon it or nor the learned Single Judge has looked into any material.

35] When the appellant has already superannuated, departmental enquiry cannot be restarted against him and we find that at this stage, nothing more than only setting aside of the order of dismissal dated 03-01-2000 is possible.

lpa 206.10 judg.

36] Accordingly, we partly allow the Letters Patent Appeal and quash and set aside the order of dismissal dated 03-01-2000.

37] As we cannot with certainty find Management at fault, we cannot award any cost to the appellant. Hence, the costs are refused.

                                          JUDGE                                                  JUDGE   

Deshmukh