Bombay High Court

Shri Subhash Marotrao Maiskey, ... vs President/Secretary, Manorama ... on 7 June, 2017

Bench: I.K. Jain

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

                    WRIT PETITION NO. 4050 OF 2008

                  Shri Subhash Marotrao Maiskey,
                  Aged about 54 Years, Occu: Head Master,
                  R/o Shikshak Colony, Ramtek Road,
                  Mansar, Tq. Ramtek, Dist. Nagpur.

                                             .....      PETITIONER


                                  .. VERSUS ..


        1.        President/Secretary,
                  Manorama Bahuuddeshiya Vikas Mandal,
                  Lashkaribag, 15/21, Nagpur-17.

        2.        In-Charge Head Master,
                  Akhilesh High School, Amdi,
                  Tq. Parshioni, Distt. Nagpur.

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

                                             ...         RESPONDENT

                  None for the petitioner.
                  Shri B.H. Shambharkar, Advocate for
                  Respondent Nos. 1 & 2.
                  Shri Bhagwan M. Lonare, Assistant Govt. Pleader
                  for Respondent No.3


                           CORAM : KUM. INDIRA JAIN, J.

DATED : JUNE 07, 2017.

ORAL JUDGMENT

The present writ petition is directed against

the judgment and order dated 04.8.2008 passed by the

Presiding Officer, School Tribunal, Nagpur in Appeal No.

STN 22/2007 preferred by the petitioner against the

order of termination, which came to be dismissed by the

Presiding Officer, School Tribunal, Nagpur.

2] The few facts relevant for the decision of the

petition may be stated in brief as under :-

The petitioner was appointed as Assistant

Teacher on 2/7/1990 and worked at Akhilesh High

School, Satak till 30/06/1992. On 01/12/2000 he was

promoted to the post of Head Master and worked at

Akhilesh High School, Mahuli till 30/06/2005. The

petitioner's services came to be terminated, vide order

dated 04/08/2008, as he was found guilty of mis-

conduct and mis-appropriation after due enquiry.

Being aggrieved by the order of termination,

petitioner preferred an appeal under Section 9 of the

Maharashtra Employees of Private School, (Conditions of

Services) Rules, before Presiding Officer, School

Tribunal, Nagpur and the same came to be dismissed on

04/08/2008. This order of dismissal is the subject matter

of present petition.

3] The challenge to the impugned judgment of

School Tribunal as well as the order of termination

passed by the respondent management is mainly on

two grounds:-

(i) Statement of allegations was issued by the President and President was not competent to issue the statement of allegations to the Head Master.

(ii) Constitution of enquiry committee was not in accordance with the rules and Awardee Teacher above 65 years could not be a member of enquiry committee.

4] In addition to the above grounds, petitioner

submitted that sufficient opportunities were not granted to

him to defend the enquiry and the order of dismissal is also

hit by the principle of natural justice.

5] With the assistance of the learned counsel for

respondent, this court has gone through the report of

enquiry committee and the impugned order passed by the

learned Presiding Officer of School Tribunal.

So far as the first objection raised by the

petitioner is concerned, learned counsel for management

vehemently relied upon the decision of this court in Gopal

Damduji Shelwatkar Vs. Gramin Uddhar Society,

Kamptee reported [2000 (2) Mh.L.J. 786]. In the same

set of facts and circumstances in para-15, this court

observed thus:-

"15. In the instant case, the inquiry was required to be instituted against the Head Master i.e. the "Head" of the institution and, therefore, in view of sub-rule (1) of Rule 36, it was the President alone who was competent to issue the statement of allegations to the petitioner and demand from him a written explanation within 7 days from the date of receipt of the statement of allegations by him."

6] It can be seen from the communication dated

15.2.2007 that President had issued statement of

allegations to the petitioner in the present case. Therefore,

the first ground raised by petitioner does not hold water.

7] So far as constitution of enquiry committee is

concerned, learned counsel for management placed reliance

upon the judgment of Division Bench of this Court in Sudha

d/o Bhaskarrao Saikhede v/s Yashodabai Shikshan

Sanstha and others, [2003 (4) Mh.L.J, 659]. Para Nos.

3, 6 and 7 of this judgment are relevant and read thus :-

"3. The respondent No.1 after serving a statement of allegations, called for explanation of the petitioner to the same and as the explanation was not found to be satisfactory, proceeded to constitute an Inquiry Committee to enquire into the alleged acts of misconduct. The constitution of the Inquiry Committee is regulated by Rule 36 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Sub-Rule (2) of Rule 36 provides that the Inquiry Committee shall comprise of i) a nominee of the Management, ii) one member nominated by the employee from amongst the employees of the private school and

iii) one member to be chosen by the Chief Executive Officer from the panel of teachers on whom State/National Award has been conferred. In the present case two fold objection is raised to the nomination of State Awardee Teacher who is chosen by the Chief Executive Officer. The objection raised by the petitioner is to the effect that the State Awardee Teacher has crossed the age of 65 years and as such he is not eligible to be nominated on the Inquiry Committee. The second objection in regard to the State Awardee Teacher is that he is conducting two enquiries (more than one) at a time. In so far as the Rule 36 is concerned, it does not disentitle the State Awardee/National Awardee Teacher who is above 65 years to be a member of an Inquiry Committee and so also the said Rule does not lay down any restriction on the State/National Awardee Teacher in regard to the number of enquiries he could associate himself

with at a given point of time. Despite the fact that Rule 36 does not provide any such limitation, the State Government acting through its Under Secretary has issued a clarification dated 6-2-1986 addressed to the Director of Education, Maharashtra State, Pune, clarifying therein the points raised for its opinion. The relevant points raised by the Director of Education and the clarification issued by the Government reads thus:

(1) ..................

(2) who should be taken on the panels ? ...................

In addition to serving teachers, retired persons below the age of 65 years on whom National / State Awards were conferred should be taken on the panels. (3) what restrictions should be placed on such a person?

....................

An Awardee Teacher should not work on more than one Committee at a time." (4) ..............

6. It is settled position of law that the executive power of the State is co- extensive with the legislative power of the State, subject to the provisions of the Constitution. Proviso to Article 162 limits the executive power of the State in regard to matters with respect to which the legislature of a State has power to make laws. Section 16 of the M.E.P.S. Act empowers the Government to frame rules which may provide for all or any of the matters enumerated in the said section. Section 16(2) (e) and (f) reads thus:

(e) the duties of such employees and Code of Conduct and disciplinary matters;

(f) the manner of conducting enquiries.

Sub-section (4) lays down that the rules so framed shall be laid before each House of State Legislature, in the manner

prescribed. The rules are then to be notified in the Official Gazette and on such notification the rules come into force. In tune with the mandate of section 16, the M.E.P.S. Rules, 1981 have been brought into force with effect from 15/7/1981. Rule 36 squarely deals with Composition and constitution of Inquiring Committees. Rule 36 (2) (a) (iii) reads as under;

"36(2)(a)(iii) - One member chosen by the Chief Executive Officer from the panel of teachers on whom State/National Award has been conferred."

Reading of Rule 36(2)(a)(iii) of the M.E.P.S. Rules, 1981, makes it clear that it does not disqualify an Awardee teacher if he is above 65 years of age nor does Rule 36 limits the association of an Awardee teacher to only one enquiry committee at a time. If this be the position in law, we have no doubt that the clarification issued by the Government cannot encroach upon Rule 36 of the M.E.P.S. Rules, and it must yield to the Rules. In the result, we hold that the clarification issued by the Government cannot either be read in Rule 36 nor can it invalidate an Inquiry Committee constituted in breach thereof. Having held that the breach of the Government instructions in no way affects the validity of the constitution of the Inquiry Committee, we proceed to consider the scope and applicability of the said instructions.

7. After careful consideration of the submissions made by the respective Advocates, we are of the clear opinion that the scope of instructions issued by the Under Secretary to the Government in his letter dated 6-2-1986 and the clarifications accompanying the same is very limited and has to be construed as directions issued to the Education Officer and/or the Awardee Teacher and has no bearing on

the validity of the Inquiry Committee. If and in case, an Awardee Teacher chooses to be on more than one Committee at the time, the Government may decide to remove him from the panel. The said instructions could be read, at the most, as regulating the preparation of the panel and providing guidelines to the Awardee Teacher. We are at a loss to understand as to why an Awardee Teacher who is above the age of 65 years, if otherwise physically and mentally fit to be on an Inquiry Committee, be held disqualified for being a member thereof. The age bar which is sought to be canvassed by the learned counsel for the petitioner, in our opinion, not being there under the Rules, cannot be incorporated in Rule 36 of the Rules by placing reliance on the clarifications issued by the State Government, as the same is contrary to the Statutory Rules. In the result, we find no merit and substance in the submissions made by the learned counsel for the petitioner that the constitution of the Inquiry Committee which is the subject matter of challenge in the present case suffers from any illegality. We are of the view that the challenge to the nomination of the State Awardee Teacher on the above referred two counts is devoid of any substance and merits and in the result the same is rejected".

8] It is thus apparent that, Rule 36 (2) (a) (iii) of the

Maharashtra Employees of Private Schools (Conditions of

Service) Rules 1981 does not disqualify an Awardee Teacher,

if he is above 65 years of age nor limits his association to

only one inquiry committee. In view of the settled position

and unambiguous provisions under the Rules, second

objection raised by the petitioner also does not survive.

So far as the grievance regarding denial of

opportunities is concerned in paragraph-29 of the judgment,

learned Presiding Officer of the School Tribunal observed:

"29. It is submitted on behalf of the appellant that, the termination order is resulted of bias and, therefore, it is bad in law. However, this submission of the appellant has no substance. It is admitted on the part of the appellant that, he did not attend the Inquiry Committee. He has also not given the reply to the charge- sheet. He has not cross-examined and witness examined by the Management. He has not adduced his evidence or examined the witnesses in support of his defence before the Inquiry Committee. Therefore, the appellant has lost every chance to raise objections in the Inquiry Committee or the procedure of the Inquiry Committee on the point of bias and natural justice. Sufficient opportunity was given to the appellant and his nominee to attend the meetings before the Inquiry Committee. It is his own fault that, he has not availed opportunity before the Inquiry Committee and, therefore, now for the first time, before

this Tribunal he has no right to ask any relief and raise objection regarding procedure of the Inquiry Committee."

9] On careful reading of report of inquiry committee,

it can be seen that all available opportunities were granted

to the petitioner but he did not avail the same. There is

ample, oral and documentary evidence regarding mis-

conduct and mis-appropriation against the petitioner and,

therefore, inquiry committee was justified in holding that 14

charges were proved, out of the 15 charges against the

petitioner. The inquiry committee followed the proper

procedure while conducting the inquiry and no procedural

flaw is noticed in conducting inquiry. While passing the

judgment and order, the Presiding Officer meticulously

scrutinized the evidence placed before the inquiry