Bombay High Court

Prabhakar Sadashiorao Patil vs Siddharth Shikshan Sahayyak ... on 2 March, 2017

Bench: Prasanna B. Varale

                                                             1                                  jg.wp3431.07.odt


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

                                            WRIT PETITION NO. 3431 OF 2007

                   Shri Prabhakar S/o Sadashiorao Patil
                   Aged about 50 years, Occup. Asstt. Teacher, 
                   R/o Chor Khidki, Ashok Nagar, 
                   Chandrapur.                                                                ..... Petitioner
                    
                               // Versus //

                   (1) Siddharth Shikshan Sahayyak 
                         Sanstha, Chandrapur, 
                         Having its Regd. No. F-69(C) 
                         Through its Secretary
                         Shri Moreshwar Marotrao Sao, 
                         R/o. Jatpura Ward No. 3, 
                         Chandrapur, Tah. & Distt. Chandrapur. 

                   (2) Siddharth Vidyalaya, Chandrapur,
                         Through its Headmaster. 

                   (3) The Education Officer (Secondary),
                         Zilla Parishad, Chandrapur.

                   (4) Prabhakar Vithoba Meshram,
                         Aged about 72 years, 
                         Occ. Pensioner, At & Post Jatpura 
                         Ward No. 3, Chandrapur, 
                         Tah. & Distt. Chandrapur. 

                   (5) Bihari Ramji Kamble,
R. No. 5 deleted
 as per Court            Aged about 82 years, 
  order dated            Occ. Cultivation, 
   11-3-2016             At & Post Nanhori, 
                         Tah. & Distt. Chandrapur.                                    ..... Respondents
                   --------------------------------------------------------------------------------------------------
                   Ms. Yogita N. Thengre, Advocate for the petitioner  
                   Shri S. B. Bissa, AGP for the respondent no. 3
                   None for the respondent nos. 1, 2 and 4
                   --------------------------------------------------------------------------------------------------




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                                  CORAM :  PRASANNA B. VARALE, J.

                                   DATE    : 02/03/2017.
ORAL JUDGMENT

Heard Ms. Yogita N. Thengre, learned counsel for the

petitioner and Shri Bissa, learned Assistant Government Pleader for the

respondent no. 3.

2. The petitioner challenges the order passed by the learned

Presiding Officer, Additional School Tribunal, Nagpur (Chandrapur)

dated 4-5-2007. It is the submission of Ms. Thengre, learned counsel

appearing for the petitioner that the order passed by learned Presiding

Officer, Additional School Tribunal is unsustainable on two grounds,

namely, the petitioner was not granted an opportunity of hearing and

as such, there was violation of principles of natural justice. The other

ground raised by the learned counsel for the petitioner is there was a

dispute in the trust looking after the affairs of the institute. It was

submitted that the Joint Charity Commissioner, Nagpur in proceedings,

namely, Application No. 3/2002 directed the respondent-management

not to take policy decisions such as appointment, removal and dismissal

of the employees of the school and in spite of such directions, the

petitioner was subjected to removal from service. Thus, on this ground

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also, the order passed by the Additional School Tribunal is

unsustainable. It was also submitted that the petitioner was appointed

as Assistant Teacher on a clear and permanent vacancy by issuing order

dated 15-12-1982. It was submitted that the petitioner was possessing

the requisite qualification for holding the post of a Teacher and the

service career of the petitioner was clean. It was submitted that the

petitioner worked with the respondent-management for more than two

decades. Ms. Thengre, learned counsel also submitted that though the

learned Presiding Officer, Additional School Tribunal framed the points

for consideration and though the second point for consideration was

answered in negative that is whether the impugned order of dismissal

of the appellant from services dated 26-9-2005 with effect from 1-10-

2005 is just, proper and legal ? The Presiding Officer, Additional

School Tribunal, ultimately, dismissed the appeal.

3. With the assistance of the learned counsel appearing for

the petitioner as well as the learned Assistant Government Pleader

appearing for the respondent no. 3, I have gone through the material

placed on record. Facts which are not in dispute are that the petitioner

was appointed on 15-12-1982 as Assistant Teacher and was holding

qualification of M.A., B.Ed. On 28-5-2005, a meeting of the executive

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committee was conducted. Resolution no. 4 was in respect of act of the

petitioner. The material shows that a report was lodged at City Police

Station, Chandrapur alleging that the petitioner by misbehaving with a

lady colleague committed an act of outraging modesty. In an internal

enquiry conducted by the Headmistress, the petitioner denied the

charge whereas the victim in her statement in clear and unambiguous

terms submitted that the petitioner indulged in the act of misbehavior

and outraging the modesty. Considering the act of the petitioner being

a serious misconduct and an act of moral turpitude, it was resolved to

conduct the enquiry of the petitioner in view of the provisions of

Maharashtra Employees of Private Schools (Conditions of Service) Rules,

1981 and more particularly, Rule 28 (5)(b). In the meeting, the

committee was also constituted for conducting enquiry against the

petitioner. Enquiry committee consisted following members :

(1) convener : Secretary, Siddharth Shikshan Sahayyak Sanstha,

Chandrapur, namely, Shri P. V. Meshram (2) State awardee Teacher

Shri B. O. Wasnik, retired Principal and (3) representative appointed by

the employee.

The petitioner was served with show cause notice. Though the show

cause notice primarily refers to the misdeed of the petitioner, there are

also other various charges against the petitioner. There are as many

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as 13 charges referred to in the show cause notice. The show cause

notice was duly served on the petitioner. The petitioner was also

served with the statement of allegations. The perusal of the material

placed on record further shows that the petitioner was served with

various notices calling upon the petitioner either to participate

personally or nominate his representative in the enquiry committee.

Perusal of the material further reveals that in spite of various

communications and notices issued to the petitioner, the petitioner

failed either to remain present before the committee or nominate his

representative and ultimately on 29-8-2005, a communication was

forwarded to the petitioner. It was informed to the petitioner that by

way of a last chance, the petitioner is called upon either to participate

in the enquiry or to nominate his representative within seven days. The

summary of the proceedings of the enquiry committee and copies of

statement of witnesses were also forwarded to the petitioner along with

notice/communication dated 29-8-2005. Perusal of the copy of

summary of proceedings of enquiry committee placed on record shows

that though the service tenure of the petitioner with the respondent -

management was of nearly 22 years, the petitioner was always found

indulged in the act of insubordination, not following the instructions,

dereliction of duties. The perusal of the summary further reveals that

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the petitioner was served with written communications, the petitioner

was provided with various opportunities so as to mend the ways of

his behaviour. In spite of various opportunities granted to the

petitioner by way of oral communication as well as by way written

communication, the petitioner paid no heed. The petitioner was called

upon to submit the name of his nominee by way of communication

dated 16-8-2005 and 7-7-2005 but the petitioner failed to submit his

nominee. The petitioner by way of a letter dated 22-8-2005 without

submitting name of his nominee alleged that one of the members in the

enquiry committee is not the member of the Education Society, and as

such, constitution of the enquiry committee itself is invalidated and

illegal. Thus, the material placed on record clearly shows that in

spite of grant of various opportunities to the petitioner, the petitioner

himself failed to avail any opportunity. The petitioner neither

participated in the enquiry nor submitted name of his nominee.

Enquiry Committee, as such, left with no choice but to proceed with the

enquiry on the backdrop of the non-cooperation from the petitioner.

4. Learned Presiding Officer of the Additional School Tribunal

in detail dealt with the submissions of the petitioner-appellant in

respect of violation of principles of natural justice and breach of

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provisions of Rules 36 and 37 of Rules of 1981. The Tribunal by

considering the material placed on record observed thus :

24. Looking to the rival submissions of the either parties it will proper to see whether the provisions of rule-36 and 37 are complied or not. As per the submission of the appellant the statement of allegation is signed and issued by the President and not by the Secretary and therefore it is contravent of Rule 36(1). Perused the provisions of Rule 36(1). Wherein it is prescribed that if an employee is allegedly found guilty on any of the grounds specified in sub-rule 5 of rule 28 and the management decides to hold an enquiry the Chief Executive Officer authorised by the management decides to hold enquiry. The Chief Executive Officer authorised by the management in this respect shall communicate to the employee the allegations and demand from him a written explanation within 7 days from the date of receipt of statement of allegation. From the above provisions it is crystal clear that the statement of allegation are required to be issued by the Chief Executive Officer of the management. Perused the statement of allegation which worded as show cause notice dated 4-7-05. It is signed by respondent No. 5 as a President of management. There is nothing on record to show that the respondent No. 5 was authorised to issue statement of allegation by any resolution passed by the management or he was appointed as Chief Executive Officer of the management. As such there is nothing on record to show that statement of allegations was issued to the appellant by the C.E.O. or Secretary of the respondent management.

As this Court find no error in the conclusion arrived at by the learned

Presiding Officer, Additional School Tribunal, I am unable to accept

the first submission of the learned counsel for the petitioner that no

opportunity of hearing was granted to the petitioner and there was

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breach of principles of natural justice. At the costs of repetition, it can

be said that this is not a case where there is a breach of principles of

natural justice but it is a case where though an opportunity was

granted to the petitioner for compliance of the provisions of the Act

and Rules, the petitioner at his own will and wish failed to avail the

opportunity, as such, the petitioner cannot raise the ground of violation

of principles of natural justice.

5. Another submission and ground raised by the learned

counsel for the petitioner was that there was dispute in the

management and there was a restrained order passed by the learned

Joint Charity Commissioner, Nagpur for taking policy decisions in the

matter of appointment, removal or dismissal of the employees of the

school and in spite of such restrained order, the petitioner was

dismissed from service. Perusal of the material placed on record shows

that there was a dispute in the management. The proceedings were

pending before the competent authority in respect of the change report

etc. Learned counsel for the petitioner placed heavy reliance on the

order passed by learned Joint Charity Commissioner, Nagpur dated

30-7-2002 in support of her submission. I have gone through the order

passed by the learned Joint Charity Commissioner, Nagpur and heavily

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relied on by the learned counsel for the petitioner. Clause (3) of the

said order is relevant for consideration of the submission of the learned

counsel for the petitioner and the same reads thus :

(3) The non-applicants are directed not to take any major policy decision such as appointment, removal or dismissal of the employees of the School except by following the prescribed procedure and subject to the approval of this Authority. So far as the financial powers is concerned, the non-applicants are directed to take utmost care and see that the Trust funds are not misused for any reason.

Perusal of the said order clause shows that though the restrained order

was passed by the learned Joint Charity Commissioner, Nagpur but it

did not prohibit the respondent-management to take policy decision in

respect of appointment, removal or dismissal of the employee of the

school by following the prescribed procedure. As such, dismissal of the

petitioner was ultimate effect of the procedure followed by the

management, namely conducting enquiry of the petitioner by

constitution of the proper enquiry committee, issuing the statement of

allegations to the petitioner, calling upon the petitioner to submit his

nominee or participation in the enquiry proceeding. The enquiry

committee after following due procedure proceeded with the enquiry

and took ultimate decision. Thus, there is also no merit in the