Sou. Kanchan Sanjay Bhopale vs The State Of Maharashtra & Ors
2017 Latest Caselaw 2202 Bom

                                                                                   WP5397.17




           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                          CIVIL APPELLATE JURISDICTION

                        WRIT PETITION NO.5397 OF 2017


Sou Kanchan Sanjay Bhopale                               ... Petitioner 
     v/s
The State of Maharashtra and others                      ... Respondents 
    

Mr N.V. Bandiwadekar with Mr M.G. Bagkar  for Petitioner. 
Mr B. Samant, AGP for Respondent - State.
Mr M.S. Topkar for Respondent Nos.3 and 4.


                                     CORAM :  SHANTANU S. KEMKAR &
                                              B.P. COLABAWALLA, JJ.

                                     DATE     : MAY 5,  2017

JUDGMENT (PER B.P. COLABAWALLA J.):

By this Writ Petition under Article 226 of the Constitution

of India, the Petitioner challenges the alleged illegal and unauthorized

departmental inquiry sought to be continued against the Petitioner as

per the charge-sheet issued by Respondent No.3. It is the case of the

Petitioner that as per the order passed by this Court dated 24 th March

2015 and which came to be modified by the Supreme Court by its

order dated 30th August 2016, the inquiry which was initiated against

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the Petitioner was required to be conducted and completed within

three months from 30th August 2016. Since the said inquiry was not

completed within the aforesaid time, it is the case of the Petitioner

that the inquiry has automatically lapsed and the Petitioner is entitled

to be reinstated and continued in service as the Head Mistress. This is

the basic relief that is sought in the Writ Petition.

2. The very brief facts arising this controversy are that the

Petitioner was appointed as an Assistant Teacher on 2nd October in a

Primary School run by Respondent No.3. Thereafter, on 1 st September

1988, the Petitioner was promoted as Head Mistress of the Primary

School. It is the case of the Petitioner that since she resisted the

statement of some false and fabricated bills, the School Management

as a counter-blast, issued a charge-sheet on 19 th August 1999 against

the Petitioner. Thereafter, an inquiry was held. In that inquiry, the

Petitioner was held guilty of mis-conduct and was dismissed from

service on 20th January 2000 and the Appeal therefrom to the School

Tribunal was also dismissed on 31st January 2003.

3. Being aggrieved by this dismissal orders, the Petitioner

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approached this Court by filing Writ Petition No.9237 of 2003. By

judgment and order dated 24th March 2015, this Court set aside the

order of the School Tribunal as well as the order of dismissal of the

Petitioner and directed that the Petitioner be reinstated, but without

any back wages. The Court however, held that the School

Management was at liberty to hold a fresh departmental inquiry

within a period of three months and that the issue of back wages

would abide with the result of fresh inquiry proceedings.

4. Being aggrieved by this order, Respondent No.3

approached the Supreme Court. The Supreme Court by its order

dated 30th August 2016 dismissed the Special Leave Petition filed by

Respondent No.3 but directed that the time of three months granted

by the High Court for conducting the inquiry against the Petitioner

should be reckoned from the date of the order of the Supreme Court

(viz. 30th August 2016). Thereafter, the Respondent No.3 also filed an

Interim Application before the Supreme Court in November 2016

inter alia praying for extension of time for conducting the said inquiry.

That Interim application was dismissed vide its order dated 9 th

December 2016. Thereafter, even a Review Petition was dismissed

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by the Supreme Court on 16th February 2017.

5. In this factual backdrop, Mr Bandiwadekar submitted that

as per the order passed by this Court and thereafter modified by the

Supreme Court, the Departmental Inquiry was to be conducted and

completed against the Petitioner within three months from 30 th

August 2016 (viz. 30th November 2016). Admittedly, the

Departmental Inquiry has not been completed till date and therefore

the Respondents have no power to proceed with the said

Departmental Inquiry in view of the fact that they have not adhered

to time schedule set down by this Court and modified by the Supreme

Court. It is in these circumstances, Mr Bandiwadekar prayed that it

be declared that the Departmental Inquiry initiated against the

Petitioner has lapsed and / or stands cancelled since the same is not

completed within the period of three months from the date of the

order of the Supreme Court dated 30th August 2016.

6. Mr Topkar, learned counsel appearing on behalf of

Respondent Nos.3 and 4, on the other hand, submitted that this Writ

Petition is wholly misconceived. He submitted that as per the order of

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this Court dated 24th March 2015 (and more particularly paragraph

16 thereof), the School Management was granted liberty to hold a

fresh Departmental Inquiry within a period of three months from the

date of the said order. It is not in dispute that the inquiry against the

Petitioner was initiated within the aforesaid period. He submitted

that there was no direction in the said order that the fresh

departmental inquiry has to be completed within the period of three

months. Even in the order of the Supreme Court dated 30 th August

2016, Mr Topkar submitted that no such direction of completing

inquiry within a period of thee months was given. He submitted that

the Supreme Court has merely submitted that the time of three

months granted by the High Court for conducting the inquiry against

the Petitioner would be reckoned from the date of the order of the

Supreme Court. He submitted that the declaration sought for in the

Writ Petition is wholly misconceived. In any event, he submitted

that the Writ Petition is premature and it is seeking to thwart the

Departmental Inquiry which is already in progress. He submitted that

even if one were to assume that there is any merit in the contention

raised by the Petitioner, this would certainly be a ground for him as

and when she would challenge the findings of the inquiry, provided

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she is held guilty. He therefore submitted that there was no merit in

the Writ Petition and the same ought to be dismissed with costs.

7. We have heard the learned counsel for the parties and

have perused the papers and proceedings in the Writ Petition. We

find considerable force in the argument of Mr Topkar. Prima facie,

after reading the orders passed by the High Court and modified by the

Supreme Court, we do not read those orders to mean that the

Departmental Inquiry had to be completed within a period of three

months. The High Court had specifically directed that the School

Management was at liberty to hold the fresh inquiry within the period

of three months. The order of the Supreme Court dated 30 th August

2016 categorically states that as per the order of the High Court, the

inquiry against the Petitioner ought to be conducted within a period

of three months from the date of the order of the Supreme Court.

Nowhere we find that the inquiry was to be completed within a

period of three months as sought to be contended by Mr

Bandiwadekar.

8. In any event of the matter, we find that on leaving these

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two orders, it is certainly a debatable issue whether the inquiry was to

be completed within a period of three months as sought to be

contended by Mr Bandiwadekar or whether the inquiry was to be

initiated within the aforesaid period as contended by Mr Topkar. This

being the case, we are not inclined to interfere at this stage and stall

the Departmental Inquiry. For all one knows the Departmental

Inquiry could culminate in a finding in favour of the Petitioner. The

Petitioner therefore, to our mind, ought to face the inquiry and cannot

scuttle the same at this stage.

9. We also have our serious doubts as to what would be the

effect on the inquiry if the same was not completed within a period of

three months, even assuming that such was the direction. All these

issues we are not inclined to consider at this stage.

10. We therefore dismiss this Writ Petition with liberty to the

Petitioner to raise all ground raised herein as and when the Petitioner

challenged the final order passed in the inquiry proceedings if the

same are adverse against her. We must clarify that all the

observations made herein are only prima facie and tentative and shall

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not be binding on the Court as and when it hears any challenge raised

by the Petitioner, if any, in the final outcome of the inquiry

proceedings. With these observations and clarifications, Writ Petition

is dismissed. No order as to costs.

(B.P. COLABAWALLA, J.)                     (SHANTANU S. KEMKAR, J.)




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