Gajanan S/O Narayan Jadhao vs Shri Shivaji Education Society, ...
2017 Latest Caselaw 6987 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.



                           WRIT PETITION NO. 1236 OF 2015



 Gajanan S/o. Narayan Jadhao,
 aged about 40 years, Occ.: Terminated 
 Headmaster, R/o. Bothra Layout, 
 Khamgaon Road, Junagaon Sunderkhed,
 Buldhana, Tq. & Dist. Buldana.  
                                                                       ....  PETITIONER.

                                    //  VERSUS //



 1. Shri Shivaji Education Society, Raipur
    Regn. No.F-123, through its Secretary
    Tah. & Distt. : Buldhana. 

 2. Shri Madhusudan Suwalal Baheti,
    President, Shri Shivaji Education Society
    Raipur, Tah. And Dist. Buldhana.

 3. Shri Anant S/o. Bhagwan Pisat,
    R/o. Buldhana Urban Co-operative Society,
    (Branch Gangapur), Shivaji Chowk,
    Gangapur, Tah. Gangapur, 
    Dist. Aurangabad. 

 4. Shri Devidas Bhagwan Tambode,
    Secretary, Shri Shivaji Education Society,
    Raipur, Tal & Dist. Buldhana.

 5. Shri Ambadas Ramdas Hiwale,
    Headmaster, Shri Shivaji Education
    Society, Raipur, Tal. & Dist. Buldhana.

 5-A.Shri Shivaji Vidyalaya, Raipur,
     Taluka and Dist. Buldana,
     through its Head Master.  



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  Judgment                                             2                                wp1236.15.odt




 6. The Education Officer (Secondary),
    Zilla Parishad, Buldhana.

 7. School Tribunal, Amravati, Dist. Amravati.  
                                                       .... RESPONDENTS
                                                                     .
  ___________________________________________________________________
 Shri S.R.Deshpande, Advocate for Petitioner. 
 Shri Kuldeep Mahalle, Advocate for Respondent Nos.1 & 3.
 Shri R.R.Deshpande, Advocate for Respondent No.2.
 Shri Amit Chutke, A.G.P. for Respondent No.6.
 None for respondent Nos. 4 and 5.  
 ___________________________________________________________________


                              CORAM : S.C.GUPTE, J.

DATED : SEPTEMBER 11, 2017.

ORAL JUDGMENT :

1. Heard learned counsel for the parties.

2. This writ petition challenges an order passed by School

Tribunal, Amravati on an appeal filed by the petitioner herein challenging

the termination of his employment with the respondent society.

3. On 1st December, 1998, the petitioner was appointed on the

post of Assistant Teacher in the school run by the respondent society. In

February, 2009, he was promoted as Headmaster of the school. While he

worked as Headmaster, an order of suspension was issued against him by the

Vice President of the first respondent society purportedly under a resolution

passed by the managing committee of the society for a disciplinary action

Judgment 3 wp1236.15.odt

against him. On 12th April, 2011, respondent No.4, in his capacity as

Secretary of respondent No.1 society, issued a charge-sheet and statement of

allegations to the petitioner, calling for his explanation. The petitioner

objected to the disciplinary enquiry on the ground that the enquiry was

neither initiated by the President of the society nor was the President called

for conducting the enquiry and accordingly, the enquiry was not in

accordance with the provisions of the Maharashtra Employees of Private

Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to

as "MEPS Act" for brevity) and the Rules framed thereunder. The petitioner,

accordingly, submitted a communication to the Enquiry Committee. The

petitioner, in the meantime, challenged his suspension order by filing a

petition before this Court, being Writ Petition No.552 of 2011. On 11 th April,

2011, that petition was withdrawn. Thereafter the petitioner filed another

petition, being Writ Petition No. 2664 of 2011, seeking inter alia a

declaration that initiation of departmental enquiry against him by respondent

No.4 was illegal and the petitioner be allowed to resume in the post of

Headmaster. Even this writ petition was withdrawn by him later. The

enquiry against the petitioner thereafter proceeded, and resulted into the

dismissal order passed against him. Being aggrieved, the petitioner filed an

appeal, being Appeal No.18 of 2013, before the school Tribunal at Amravati.

The School Tribunal, by a detailed order and judgment, rejected the

petitioner's appeal. Being aggrieved, the petitioner has preferred the present

writ petition.

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4. One of the principal contentions of the petitioner urged before

the School Tribunal, and also pressed before this Court by learned counsel

for the petitioner, is that the initiation of the departmental enquiry against

the petitioner was vitiated due to violation of the provisions of the MEPS Act

and the Rules. Learned counsel submits that since the petitioner was the

Headmaster of the school, disciplinary proceedings against him could have

been initiated only by the President of the trust and not by either respondent

No.3 (the then Vice-President who passed the initial suspension order) or

respondent No.4 (the Secretary who purportedly issued the chargesheet and

statement of allegations, calling for the petitioner's explanation and

proposing the disciplinary enquiry). Learned counsel submits that the

President alone is not only empowered to initiate the enquiry, but is also

required to be part of the enquiry committee in accordance with the

applicable provisions of the Act and the Rules. Learned counsel submits that

the petitioner is merely a victim of the internal fight between two groups in

the management, respondent No.2 who was the President of the Trust being

on one side and the other committee members including respondent Nos. 3

and 4 being on the other. The School Tribunal, in its impugned order, has

noted that it was an admitted fact that on 6 th February, 2011, i.e. before the

disciplinary proceedings against the petitioner were initiated by service of the

charge-sheet, there were elections to the managing committee of the trust, in

which respondent No.3 was elected as President in place of the earlier

President, i.e. respondent No.2, and respondent No.4 was appointed as

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Secretary. The petitioner did not dispute the factum of the elections. It was

indeed not his case that after the expiry of the term of management of the

the earlier management headed by respondent No.2, respondent Nos. 3 and

4 took over the management without conducting elections. The main thrust

of the petitioner's arguments before the School Tribunal was that the

validity of the elections and appointment of respondent Nos. 3 and 4,

respectively, in the posts of the President and the Secretary, was the subject

matter of a pending enquiry before the Charity Commissioner and pending

acceptance of the change report in that behalf, respondent Nos. 3 and 4 were

not entitled to conduct the management or issue, in particular, any show

cause notice or disciplinary action against the petitioner. The School

Tribunal, relying on the judgment of our Court in the case of Vijay K. Mehta

Vs. Charu K. Mehta, reported in 2008(5) ALL MR 366, held that pendency of

the change report in respect of the existing management of the trust would

not in any way help the petitioner in resisting the enquiry. It is not really in

dispute that the term of the old management under the Presidentship of

respondent No.2 had come to an end by February, 2011 and that elections to

the managing committee were held on 6 th February, 2011. In these elections,

respondent No.3 was elected as President in place of respondent No.2.

Though the change report in that behalf was pending before the Charity

Commissioner, that is to say, there was no order of acceptance of the change

under Section 22(3) of the Bombay Public Trusts Act, there is no restriction

in law insofar as management of the trust by the newly elected management

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is concerned. The changes effected by the trust in its management are in

pursuance of the elections of 6th February, 2011 and take effect immediately.

Acceptance of change report by the Charity Commissioner merely gives

finality to the change already effected by the trust. It is not that the act of

making of such change comes into effect from the date of acceptance of the

change report. This was laid down by a learned single Judge of our Court in

the case of Chembur Trombay Education vs. D.K. Marathe [2002(3) BCR 161]

and endorsed by a Division Bench of this Court in the case of Ganesh vs.

C.H.M.Edu. Society, reported in 2007(6) Mh.L.J.589. It is this law which

was reiterated by our Court when it decided the case of Vijay K. Mehta

(supra). The School Tribunal correctly applied this law to the facts of the

present case and held that a mere dispute between the management or a

pending contest concerning a change in management or acceptance of the

change effected by the trust in its management did not in any way prohibit

the new management from managing the trust and in particular, as part of

that management, from taking disciplinary action against the employees of

the school including the petitioner herein. The School Tribunal rightly

observed that the petitioner was an employee of the school; he was not

expected to get into the dispute between the trustees; as an employee he had

to face the inquiry as per the procedure.

5. Learned counsel for the petitioner relies on a judgment of the

Supreme Court in the case of Nand Deo Pande vs. Committees of Management

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and other, reported in AIR 1991 SC 413. That was a case where the enquiry

was instituted against the head of the school and the argument before the

Court was that the enquiry was not initiated by a validly constituted

managing committee. The Court held that the delinquent employee was

entitled to urge that the committee initiating action against him was not

validly constituted or had ceased to be validly constituted. The Supreme

Court in that case noticed that the issue of validity of the committee was

being decided by the Sub-Divisional Magistrate Deputy Director of Education.

The SDM/ DDE was directed to proceed with the enquiry and complete the

same within one month and thereafter the committee held to be properly

constituted would be at liberty to continue with the proceedings of the

enquiry against the petitioner and, in the meantime, the enquiry initiated by

the present committee of management would stand stayed. It is pertinent to

note that in the case before the Supreme Court, the District Inspector acting

under U.P. Intermediate Education Act, 1921 had already found that the

managing committee of the school had ceased to be valid due to non-renewal

of the registration of the society and non-holding of periodical elections and

it was this dispute, which was pending before the Sub-Divisional Magistrate

under the provisions of the Societies Registration (U.P. Amendment) Act,

1960. In fact, in the light of this position, the District Inspector had declined

to grant approval to the suspension order passed by the School Management

against the petitioner. Similar enquiry was also pending before the Deputy

Director of Education under the U.P. Education Act. The directions of the

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Supreme Court referred to above were passed in the light of these facts.

These facts are clearly distinguishable from the facts of our case, where the

elections to the managing committee were actually held and respondent Nos.

3 and 4 were, respectively, elected as President and Secretary of the trust in

place of the earlier incumbents. What was pending before the Charity

Authorities was a change report in respect of these changes, which were

contested by the earlier incumbents including respondent No.2 herein. The

facts of our case are clearly covered by the decisions of our Court referred to

above.

6. Learned counsel for the petitioner also submits that there is no

compliance with the provisions of the MEPS Act and the Rules insofar as the

conduct of the disciplinary enquiry in the present case is concerned. Learned

counsel submits that the petitioner was merely given a charge-sheet and not

a statement of allegations as is mandatory under the provisions of the MEPS

Act and the Rules. There is no merit even in this contention. As observed by

the School Tribunal, though the provisions of the Rules do indicate that

charge-sheet and statement of allegations communicated to the delinquent

are separate documents, in the facts of the present case, there might not be

much difference between the nature of the two documents. If whatever

submitted to the petitioner as part of the charge-sheet is not merely charges

per se but also allegations on the basis of which these charges were proposed,

it more or less substantially meets the requirement of law. Our Court in the

Judgment 9 wp1236.15.odt

case of Sulochana Daulatrao Thakare Vs. Sangam Shikshan Sanstha & oth.,

reported in 2004(4) Bom.C.R.488, has held that mere technical objection

such as some variation in the schedule will not avail the delinquent against

whom disciplinary action has been duly taken. What we have to see in all

these cases is whether the principles of natural justice have been

substantially complied with before the delinquent is punished. One has to

see whether he had a reasonable and adequate opportunity to meet the

charges and to defend himself in the enquiry. If we have regard to the facts

of our case, the petitioner cannot be said to have been in any way prejudiced

by non-communication of charges and statement of allegations separately. In

fact, the petitioner never participated in the enquiry. He doggedly refused to

participate on the ground that the enquiry committee itself was not properly

constituted. If that was his case and not that he was denied any opportunity

to show cause as such, the fact that the charge-sheet and the statement of

allegations were not separately communicated to him, would scarcely make

any difference. Whether these were submitted separately or together, he

never meant to show cause to the charges or allegations purportedly on the

ground indicated above. Indeed, in keeping with this approach of his, both

his appeal before the School Tribunal and his petition to this Court are silent

on this particular aspect. There is no whisper either in the appeal or in the

petition that the petitioner was denied any effective opportunity to show

cause either by reason of non-supply of the charge-sheet and the statement of

allegations separately or otherwise for any reason at all. This particular

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objection is raised for the first time across the bar at the hearing of the

petition and as noted above, it merits no countenance.

7. Learned counsel for the petitioner also submits that during the

petitioner's suspension pending enquiry, no subsistence allowance was paid

to him. If no subsistence allowance was paid, that would, at the highest, give

rise to a monetary claim. It would not vitiate the disciplinary enquiry as such,

unless of course it can be shown that the petitioner was prejudiced in the

matter of conduct of his defence due to such non-payment of subsistence

allowance.

8. In the premises, there is no merit in the writ petition. The writ

petition is dismissed. No order as to costs.

JUDGE

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