Bombay High Court
Ku. Sudarshani D/O Damduji Thul, ... vs The Presideing Officer, ... on 12 September, 2017
Bench: S.C. Gupte
Judgment 1 CAW1395.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CIVIL APPLICATION (CAW) NO.1395 OF 2015
IN
WRIT PETITION NO. 1347 OF 2001
Ku. Sudarshani D/o. Damduji Thul,
now Sudarshani W/o. Dnyaneshwar Taksande,
Aged about 60 years, Occupation : Retired,
Resident of C/o. D.S. Taksande, Vikramsheela
Nagar, Sindi (Meghe), Tq. & Distt. Wardha.
.... PETITIONER.
// VERSUS //
1. The Presiding Officer,
Additional School Tribunal
Nagpur (Chandrapur)
2. Savitribai Fuley Shikshan Prasarak Mandal,
Wardha, through its Secretary,
Sau. Archana Arun Choudhari, Sainagar,
Wardha.
3. Savitribai Fuley Shikshan Prasarak Mandal,
Wardha, through its President,
Sainagar, Wardha.
Respondent Nos. 4 & 5 are reported dead and
through not mentioned in the array of
respondents.
4. Shri Vinayak Govindrao Dandekar,
Hind Nagar, Near Samudre's House,
Wardha.
.... RESPONDENTS
.
___________________________________________________________________
Smt. S.W.Deshpande, Advocate for Petitioner.
Shri A.R.Chutke, A.G.P. for Respondent Nos. 1 & 7.
Shri Rajnish Vyas, Advocate for Respondent Nos.2 to 4.
___________________________________________________________________
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Judgment 2 CAW1395.15.odt
CORAM : S.C.GUPTE, J.
DATED : SEPTEMBER 12, 2017.
ORAL JUDGMENT :
1. Heard learned counsel for the parties.
2. This application is for recall of an order passed by this Court in
Writ Petition No.1347 of 2001 decided on 3rd April, 2009.
3. The controversy before the Court in the present matter makes a
rather interesting reading. The applicant before the Court was the
Headmistress of Savitribai Fule Vidyalaya, Masod, one of the three schools
run by 2nd and 3rd respondents, who are, respectively, the Secretary and
President of a charitable trust/society. She was initially appointed as an
Assistant Teacher on 2nd September, 1987. After having worked as Assistant
Teacher for 10 years, she was promoted as Headmistress in the category of
Scheduled Caste and transferred to Savitribai Fule Vidyalaya, Masod on 2 nd
July, 1998. The society issued a statement of allegations against the
petitioner and an enquiry committee was constituted. The enquiry
committee consisted of three nominees: (i) A member of the society who was
President and acted as convener of the committee, (ii) Headmaster of
another school who was the employee's representative and (iii) Nominee of
the State, i.e. State Awardee. This enquiry committee went into the charges
Judgment 3 CAW1395.15.odt
and the reply of the petitioner thereto and finally concluded the enquiry
without coming to any decision on the penalty to be awarded to the
petitioner. Though majority of the committee (i.e. two members, namely, the
management representative and the State Awardee) found the petitioner
guilty of the charges, the employee's representative found her to be not
guilty. The State Awardee recommended minor penalty as per Rule 31 of the
Maharashtra Employees of Private Schools (Conditions of Service) Rules,
1981, whilst the society's representative, i.e. the convener, recommended a
major penalty. Despite there being no recommendation of the enquiry
committee in the premises, the society, on 1 st March, 1999, issued a reversion
order, reverting the petitioner to the post of Assistant Teacher by way of a
major penalty. This reversion was challenged by the petitioner by filing an
appeal before the School Tribunal at Chandrapur. The appeal being rejected
by the Tribunal, the petitioner filed Writ Petition No. 1347 of 2001, the first
of the six petitions filed in this matter. This Court allowed the petition and
directed the Deputy Director of Education to take a decision on penalty on
the basis of 9 charges held to be proved by the majority of 2:1. This Court
was of the view that since the enquiry committee could not come to any
conclusion or decide on the penalty to be imposed on the petitioner, it was a
fit case where the Director should invoke his powers under Section 4A of the
Act after hearing the management as well as the employee and based on such
decision of the Director, penalty could be awarded to the petitioner. (It is this
order which is sought to be recalled by the present civil application)
Judgment 4 CAW1395.15.odt
4. The management challenged this order by filing a Letters
Patent Appeal. The Appeal was dismissed by a Division Bench of this Court.
The Deputy Director of Education thereupon inquired into the matter and
passed an order awarding minor punishment as per Rule 31(1) of the MEPS
Rules. This order was challenged by the management in Writ Petition No.
1145 of 2010. The petition was allowed by this Court and the matter was
remanded to the Deputy Director of Education for a fresh decision in
accordance with law. The Deputy Director of Education, once again, after
hearing all concerned, by his order dated 13 th September, 2010, imposed
minor penalty of withholding of 5 annual increments of the petitioner. Once
again, the management challenged this order in Writ Petition No. 1054 of
2011. This Court, again, allowed the petition and quashed and set aside the
order of the Deputy Director and once again remanded the matter to him so
as to enable him to comply with the requirements of sub-section (4) of
Section 4A of the MEPS Act and to pass a fresh order.
5. After purportedly following the provisions of the MEPS Act, the
Deputy Director of Education once again, by his order dated 16 th September,
2012, directed the management to stop one increment of the petitioner
permanently. The matter was again carried by the management before this
Court in Writ Petition No.5341 of 2012. Once again, the petition was
allowed and the Deputy Director was directed to take a fresh decision in
accordance with law within two months. On 16 th May, 2013, the Deputy
Judgment 5 CAW1395.15.odt
Director, after hearing all parties, directed the management to stop one
increment for one year. The management challenged that order again in the
writ jurisdiction of this Court (W.P. No.2950/2013). This Court once again
allowed the writ petition and quashed and set aside the Deputy Director's
order. The matter, however, was not remanded this time to the Deputy
Director, since the Court was of the view that the enquiry not having been
conducted either as per the directions of the Director or Deputy Director of
Education as contemplated by sub section (4) of Section 4-A of the MEPS Act
or conducted by the Director himself or any other officer not below the rank
of Education Officer under sub-section (2) of section 4-A of the MEPS Act,
neither the Director nor the Deputy Director of Education had any power
conferred by Section 4A of the MEPS Act to interfere with the order of
punishment imposed by the management. The Court held that the Director /
Deputy Director had no jurisdiction to reduce the penalty imposed upon the
petitioner by the management and the order of the Deputy Director,
therefore, could not be sustained. The Court was of the view that the earlier
orders of this Court remanding the matter to the Director or Deputy Director
of Education could not take the matter any further, since anyway these
orders have to be construed as orders empowering the authorities to act in
accordance with law and if they have no power to act at all, these orders
could not be said to have conferred jurisdiction or authority upon the Deputy
Director to act in the matter or take a decision.
Judgment 6 CAW1395.15.odt
6. Faced with this situation, the petitioner has preferred the
present application for recall of the original order passed in Writ Petition No.
1347 of 2001 on 3rd April, 2009.
7. The application is treated as review petition. RULE is issued on
the review petition after condoning the delay and the matter is taken up
forthwith by consent of counsel for final hearing.
8. Shorn of all the legal wrangles, at the end of the various court
battles of the respective parties recounted above, what emerges plainly from
the forgoing narration is this: It is beyond dispute that the enquiry committee
appointed by the management for disciplinary action against the petitioner
did not reach any conclusion. It may have held by a majority of 2:1 that the
petitioner was guilty of some of the charges leveled against her, but on the
matter of punishment to be awarded to her it did not render any finding, one
of the three members having held the petitioner to be not guilty and other
two, respectively, having recommended minor and major penalties. There
was, thus, no decision in fact of the enquiry committee. In other words,
there was no recommendation by the Committee to the management to
inflict any particular penalty. The reversion by the management, in the
premises, is clearly a unilateral and unauthorized act. If the Director or
Deputy Director of Education had no authority to rule on the penalty in such
a case, the order of the School Tribunal simply had to be quashed, meaning
Judgment 7 CAW1395.15.odt
thereby that the petitioner's appeal before the School Tribunal deserved to be
allowed.
9. In the order under review, this Court, in the first place, upheld
the finding of guilt and did not set aside the order of the management in
toto, but instead directed the Deputy Director of Education to decide the
matter of punishment purportedly on the footing that he can do so. In a
subsequent petition arising between the same parties and out of the same
matter, this Court has come to a conclusion (and that conclusion has since
become final) that the Deputy Director, in spite of the directions passed by
the Court, really had no jurisdiction or authority in law to decide the matter
of punishment one way or the other. If that is so, the very basis of the order
passed by this Court on 3rd April, 2009 is irretrievably undermined. If in spite
of the orders passed by the Court on that date and thereafter in the spate of
petitions which followed, the Deputy Director had no authority or jurisdiction
to decide the matter of punishment, the very basis on which the remand was
made falls apart. There is no denial that there was, in fact, no
recommendation from the enquiry committee and yet the management
unilaterally inflicted the major penalty of reversion on the petitioner. The
punishment itself must in that case be quashed. The management is not
empowered to unilaterally decide the issue of penalty without there being
any recommendation in that behalf by the enquiry committee. No one has
suggested otherwise at the hearing of the petition.
Judgment 8 CAW1395.15.odt
10. In the premises, the review petition is allowed. The order
under review passed on 3rd April, 2009 is recalled and on a fresh
consideration of the matter, Writ Petition No. 1347 of 2001 is allowed. The
order of the School Tribunal in appeal and the order of the management
which was appealed before the School Tribunal are quashed and set aside.
11. Since the petitioner has already crossed the age of superannuation
and ceased to work with the respondent society, there is no question of
reinstating her in the post of Headmistress. This order shall, accordingly,
merely reflect on the remuneration and benefits payable to the petitioner.
Since the order is set aside on the footing that it was not legal or proper, the
petitioner shall be entitled to all benefits available to the post of
Headmistress from 1st March, 1999 till 31st May, 2013. As held by the
Supreme Court in the case of Deepali Surwase Vs. Kranti, reported in 2014(2)
Mh.L.J. 480 (SC), in the event an order of termination is set aside on the
ground that it was wrongful, reinstatement with continuity of service and
back wages is the normal rule. As far as back wages are concerned,
ordinarily the employee whose services are terminated and who is desirous
of getting back wages is required to merely plead or make a statement before
the adjudicating authority or the court of first instance that he/ she was not
gainfully employed or was employed on lesser wages. If the employer wants
to avoid payment of full back wages, it is for him to plead and prove by
cogent evidence that the employee was gainfully employed and getting
Judgment 9 CAW1395.15.odt
wages equal to his/ her wages before the termination of service. In the
present case, the petitioner admittedly worked with the respondent school as
an Assistant Teacher after her reversion and earned the salary of the
Assistant Teacher due to her reversion. Since the reversion is set aside, she
must get full benefits of the pay and emoluments of the Headmistress till her
superannuation.
12. As held by the Supreme Court in the case of Educational Society,
Tumsar and Ors. V/s. State of Maharashtra & Ors. reported in 2016 (2) ALL
MR 947 (S.C.), if termination or reversion of an employee in a state aided
school is set aside, the primary responsibility to pay the back wages is on the
Education Department. It is as though the employee would have earned such
remuneration from the state had he/ she not been illegally terminated or
reverted, as the case may be. The entire back wages of the petitioner must,
accordingly, come from the Education Department. The Department to act
accordingly on this order.
JUDGE
RRaut..
