Bombay High Court
Shri Gajanan Dnanyan Prakash ... vs Ramdas Shaligram Kale And Others on 22 September, 2021
Bench: Avinash G. Gharote
WP394 of 2020.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.394/2020
PETITIONERS : 1. Shri Gajanan Dnayan Prakash Sanstha,
Andura, Through the Secretary, Guru Krupa
Main Road, Andura (Old), Tq. Balapur,
District Akola.
2. The Head Mistress
Late Jagdeorao Warale Vidayalaya, Andura
(Old), Tq. Balapur, District Akola.
R/o Chincholi Kale, Tq.
Chandurbazar, District Amravati.
...VERSUS...
RESPONDENTS : 1. Ramdas Shaligram Kale
Aged 58 Years, Occupation - Service;
R/o House No.56, Nursing Colony,
Tq. Akot, District Akola.
2. Education Officer (Secondary)
Zilla Parishad, Akola.
3. Hon'ble School Tribunal
Amravati Division, Amravati, Through
its Presiding Officer.
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Mrs. Radhika G. Bajaj, Advocate for Petitioners.
Mr. S. M. Vaishnav, Advocate for Respondent No.1.
Mr. K. L. Dharmadhikari, AGP for Respondent Nos.2 & 3.
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CORAM : AVINASH G. GHAROTE, J.
DATE : 22/09/2021
ORAL JUDGMENT
1. Heard Mrs. Bajaj, learned Counsel for the Petitioners,
Mr. Vaishnav, learned Counsel for the Respondent No.1 and
Mr. Dharmadhikari, learned AGP for Respondent Nos.2 & 3.
2. Rule. Rule made returnable forthwith. Heard finally
with the consent of the learned Counsel for the parties.
3. The Petition challenges the Judgment dated
19/12/2019 delivered by the Presiding Officer, School Tribunal,
Amravati, whereby the termination order of the Respondent No.1
dated 24/4/2017 was quashed and set aside, and by exercise of the
powers under Section 11(2)(d) read with Section 30 of the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 [hereinafter be referred to as 'the said Act' for
the sake of brevity], the Respondent No.1 was held guilty for the
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charges and the punishment imposed was reduced by directing the
withholding of his first due one year increment.
4. Mrs. Bajaj, learned Counsel for the Petitioners submits
that the Respondent No.1 was appointed as a Peon on probation on
15/6/2001 and had acquired the status of deemed permanent
employee in 2004. On 31/12/2011, the Respondent no.1 proceeded
on unauthorised leave without any intimation or permission of the
Petitioner No.2. It is contended that the Petitioner No.2 had issued
him seven notices, out of which, only one notice dated 23/8/2014 is
claimed to have been received. On 28/8/2014, a termination notice
was published in local daily 'Matrubhumi', which had been
challenged by way of appeal under Section 9 of the said Act, which
was numbered as Appeal No.55/2014 and the same came to be
partly allowed by the Judgment dated 5/5/2015, whereby the
termination order, as published in the local daily 'Matrubhumi' dated
28/8/2014 came to be quashed and set aside, and further direction
was issued to reinstate the appellant on the post of Peon. The reason
for quashing the same, was that though the Respondent No.1 was a
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permanent employee, no enquiry was initiated, as was mandatorily
required under Rule 36 of the Maharashtra Employees of Private
Schools Rules [hereinafter be referred to as 'the said Rules' for the
sake of convenience].
5. This Judgment was not challenged and the Respondent
No.1 came to be reinstated on 8/11/2016. Thereafter a fresh
enquiry was conducted against the Respondent No.1, on the same
allegations, that for the period from 31/12/2011 till 28/8/2014, the
Respondent No.1 was absent without any leave, whatsoever. The
enquiry committee, by its report dated 22/4/2017 recommended
the termination of the Respondent No.1. After calling his
explanation and considering it, the Petitioners, by order dated
24/4/2017 terminated the Respondent No.1.
6. This was again challenged before the learned School
Tribunal, who by its Judgment dated 19/12/2019 found that the
enquiry was vitiated on account of active participation of Shri
Varale, the Secretary, who acted as a Convener and thus quashed
and set aside the termination order dated 24/4/2017. Insofar as the
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punishment imposed is concerned, the learned School Tribunal took
a lenient view by observing in paragraph No. 28 that there were no
allegations against the Respondent No.1 of any misappropriation or
moral turpitude, and considering his earlier services for near about
a decade from 2001 to 2011 without any complaint, and so also his
age, exercised the powers under Section 11(2)(d) read with
Section 30 of the said Act, and though held guilty the Respondent
No.1 of being in unauthorised absence for the above duration,
reduced the punishment by directing the management to withhold
his first due one year increment. Against this Judgment, the present
Petition has been filed.
7. Mrs. Bajaj, learned Counsel for the Petitioners, by
placing reliance upon North Eastern Karnataka R. T. Corporation V/s
Ashappa and Anr., 2006 (5) SCC 137 (Para 6) submits, that the
misconduct of being absent from the services for a period of more
than three years without any authorization, was a grave misconduct,
which should not be taken lightly and once the misconduct was
proved, the court could not go into the quantum of punishment.
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She submits that the Tribunal could not have exercised the powers
under Section 11(2)(d) of the said Act.
8. Further reliance is placed on Delhi Transport
Corporation V/s Sardar Singh, 2004 (7) SCC 574 (Para10) to
contend that once an employee chooses to remain absent
unauthorisely from duties, without any prior intimation to the
employer, it is negligence and lack of interest in work, amounting to
misconduct and mere treating such absence as a leave or leave
without pay after upholding the misconduct and avoiding
punishment, is of no consequence on the effect of misconduct.
9. Further reliance is placed on Chairman and MD V.S.P. &
Ors. V/s Goparaju Sri Prabhakara Hari Babu, 2008(5) SCC 569
(Paras 15 & 17) to contend that once the charge has been admitted/
proved, the court should not interfere with the quantum of
punishment upon a delinquent employee.
10. Further reliance is placed on Om Prakash V/s State of
Punjab & Ors., 2011(14) SCC 682, to contend that the period of
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absence is not the only criteria, but the conduct of the employee in
remaining absent without authorization, is also material. She further
submits that the charge of absenteeism, if condoned by the court,
would have an adverse effect upon the discipline, and it would be
difficult for the management to administer the school, in case such
action is condoned, as that would give an inputs to the other
employees, to indulge in such absence.
11. The learned Counsel, therefore, by relying upon
Kashiram Rajaram Kathane V/s Bhartiya R. B. Damle Gram Sudhar
Tatha Shikshan Prasar Society and others, 1997(3) Mh.L.J. 235
(Para 14) contends, that though there has been a deficiency in the
enquiry, as found by the learned Tribunal, a fresh opportunity could
always be afforded, considering the nature of the misconduct, which
already stands proved.
12. Mr. Vaishnav, learned Counsel for the Respondent No.1
submits, that the absence of the Respondent No.1 from the
employment, even if it remained unexplained, however, the
Respondent No.1 cannot be subjected to repeated enquiries, as it is
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for the management to comply with the necessary requirements of
law. He submits that at the first instance the termination was
without an enquiry, on the second instance, the termination is
vitiated due to the participation of the Secretary, who also acted as a
Convener, which was in violation of Rule 36 of the said Rules.
13. Placing reliance upon Head Master, Vivek Vardhini
Madhyamik Vidyalaya, Malizap V/s Alka Namdeo Khalekar and
others, 2017(1) Mh.L.J. 105 (Paras 33 and 34), learned Counsel
submits, that repeated enquiries cannot be permitted by the
management, as that would indicate, that the management was bent
upon to terminate the Respondent No.1 anyhow. He further relies
upon Rajashri Shahu Chhatrapati Shikshan Sanstha, Nagpur and
another V/s Mangala Rajesh Mankar and others, 2019(5) Mh.L.J.
418 (Para 20), to contend that in every case the management
cannot be permitted to hold a de novo enquiry and the same if
permitted would be the third enquiry on the very same charges. He
also contends that the very request would indicate, that the
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management was bent upon to remove the Respondent No.1 by any
means.
14. Mrs. Bajaj, learned Counsel for the Petitioners is correct
in her submission that the action of absenteeism of the Respondent
No.1, for the above duration, is an action, which ought not to be
countenanced by the management, as any such action, would have
adverse effect upon the functioning of the Institution. The reliance
placed upon North Eastern Karnataka R. T. Corporation; Delhi
Transport Corporation; Chairman and MD V.S.P.; Om Prakash; and
Kashiram Rajaram Kathane (cited supra) is equally justified.
However, what remains to be seen, is whether an appropriate
opportunity, was granted to the management, to take action as per
law against the Respondent No.1 for the absenteeism, which was the
action, by which the Petitioners were aggrieved.
15. In the first instance, the termination dated 28/8/2014
as published in the local daily Matrubhumi was set aside on account
of an enquiry having not been conducted at all, which was clearly in
violation of the requirement of Rule 36 of the said Rules.
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Consequent to the reinstatement, an enquiry was conducted, and it
was necessary for the management, since it found the Respondent
No.1 not to be desirable to be continued in the Institution,
considering that the continuation of the Respondent, was being felt,
to have an adverse effect on the discipline, to have ensured with the
compliance of the requirement of law. It cannot be said that the
management is not aware of the requirements of conducting an
enquiry, so as to make it legally sustainable, as that is something,
which is in public domain and the Petitioners being governed by the
Maharashtra Employees of Private Schools Act, cannot claim
ignorance of the statutory requirements in that regard. Thus, in
spite of the opportunity being available, the Petitioners embarked
upon a course, which led to the vitiation of the enquiry, on account
of the Secretary of the Society, have acted as a Convener, which was
impermissible in view of the provisions of Rule 36 of the said Rules.
16. The very fact, that a request is again made for the
purpose of conducting a de novo enquiry against the Respondent
No.1, would indicate, that the intention of the Petitioners is to get
rid off the Respondent No.1, by any means. The purpose of
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conducting a de novo enquiry, cannot be for the reason of a pre-
decided intention to terminate an employee. Though the Petitioners
had the opportunity, they have failed to make proper utilization of
the same, in view of which, in the facts and circumstances of the
present case, though the absenteeism on behalf of the Respondent
No.1 is serious and grave, the default on the part of the Petitioners
in complying with the requirements of the provisions of Rule 36 of
the said Rules, cannot be given a go-bye in order to permit the
Petitioners to conduct an enquiry afresh, that too, with an intention
to ensure his dismissal. This view is supported by what has been
held by this Court in Head Master, Vivek Vardhini Madhyamik
Vidyalaya, Malizap and Rajashri Shahu Chhatrapati Shikshan
Sanstha (supra). That being the position, I do not see any infirmity
in the Judgment passed by the learned School Tribunal. The Writ
Petition is without any merits and therefore the same is dismissed.
Rule stands discharged. There shall be no order as to costs.
17. At this juncture, Mrs. Bajaj, learned Counsel for the
Petitioners submits, that the Judgment be kept in abeyance, for a
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period of six weeks, so as to enable the Petitioners to take
appropriate steps in the matter, which request is opposed by the
learned Counsel for the Respondent No.1. Considering that the
Respondent No.1, as of now is not in employment, the Judgment is
kept in abeyance for a period of six weeks, so as to enable the
Petitioners to take appropriate steps.
(AVINASH G. GHAROTE, J.)
Yadav VG
