Bombay High Court
Shankar Gopal Umarani vs Shri. Shashikant Sadashiv ... on 3 April, 2023
Bench: N. J. Jamadar
2023:BHC-AS:10051-DB
WP1851-2018AWCP130-20.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1851 OF 2018
1 Sangli Shikshan Sanstha, Sangli
A Trust registered under the provisions of
Bombay Public Trust Act, 1950 bearing its
registration No.SS/F4, having its
registered office at City High School,
village Place, Sangli, Dist.
Sangli - 416 416 through Executive Officer
2 The Head Master
Guruvarya Dadoji Konddeo Sainiki Shala
Having its office at Datta Mal, Manerajuri
Road, Tasgaon, Previously Charge Head
Master Yogesh K. Khadilkar, now present
Head Master Balkrushna Narayan
Patankar ...Petitioners
Versus
1 Shankar Gopal Umrani
Aged 52 years, Occu. Presently Nil
At Golden View, Flat No.5, Golden Park
Bypass Corner, Madhav Nagar Road,
Sangli - 416 416
2 Education Officer (secondary)
Zilla Parishad, Sangli, Dist. Sangli. ...Respondents
WITH
CONTEMPT PETITION NO. 130 OF 2020
Shankar Gopal Umarani
Age: 57 years, Occu.: Nil.
R/at. Golden View, Flat No.5, Golden Park,
Bypass Corner, Madhavnagar Road,
Sangli. ...Petitioner
Versus
1 Shashikant Sadashiv Deshpande
Working as Executive Officer, Sangli
Shikshan Sanstha, City High School,
Sangli, District Sangli.
2 Sudhakar Telang
Working as Education Officer, Zilla
Parishad, Sangli, District Sangli
1/19
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3 Vijay Rajaram Shendge
Working as the Headmaster
Guruvarya Dadoji Konddeo Sainiki Shala,
Datta Mal, Manerajuri Road, Tasgaon,
District Sangli. ...Respondents
Mr. N. V. Bandiwadekar, Senior Advocate, i/b Ms. Manjiri
Parasnis, for the for the Petitioner in WP/1851/2018 for
the Respondent in CP/130/2020.
Mr. Ashutosh Kulkarni, a/w Sarthak Diwan, for the Petitioner
in CP/130/2020 and for the Respondent in WP/1851/
2018.
Mr. C. D. Mali, AGP for the State.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 23rd MARCH, 2023
PRONOUNCED ON: 3rd APRIL, 2023
JUDGMENT:-
1. Rule in Writ Petition No.1851 of 2018. Rule made
returnable forthwith and with the consent of the learned
Counsel for the parties heard finally.
2. Writ Petition No.1851 of 2018 calls in question the legality,
propriety and correctness of a judgment and order dated 3 rd
May, 2017 in Appeal No.103 of 2014 passed by the learned
Presiding Officer, School Tribunal, Kolhapur, whereby and
whereunder the appeal preferred by respondent No.1 came to be
partly allowed by setting aside the order of termination dated
13th October, 2014 and the matter was remitted back with liberty
to the petitioner to conduct enquiry from the stage of recording
of respondent No.1's evidence.
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3. Contempt Petition No.130 of 2020 is filed by respondent
No.1 alleging willful disobedience of the impugned order.
4. Shorn of unnecessary details, the background facts
leading to these petitions can be stated as under:
(a) Petitioner No.1 is a Public Charitable Trust registered
under Maharashtra Public Trust Act, 1950 ("the Act, 1950"). It
runs Guruvarya Dadoji Konddev Sainiki School, at Tasgaon,
petitioner No.2.
(b) On 1st July, 1992 respondent No.1 was appointed as
an Assistant Teacher in the City High School, Satara, another
school run by petitioner No.1. On 7th July, 1997 respondent No.1
was promoted as the Head-Master in Guruvarya Dadoji Konddev
Sainiki School, at Tasgaon.
(c) Alleging various acts of fraud, misappropriation of
funds and misconduct in the discharge of duties by respondent
No.1 as the Head-Master of the said school, a show cause notice
was served on respondent No.1 on 6 th July, 2011. The latter gave
reply on 23rd July, 2011. By communication dated 25th August,
2011, respondent No.1 was informed that a decision to hold an
enquiry in accordance with the provisions contained in
Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977 & Rules 1981 was taken. By the
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said communication, the constitution of a three member
enquiry committee comprising of respondent Nos.1's nominee
was also conveyed to respondent No.1 by the convener of the
eqnuiry committee.
(d) In the intervening period, a number of proceedings
were instituted at the instance of respondent No.1 challenging
the institution of enquiry including RCS No.330 of 2011.
Eventually, the enquiry commenced. Since the enquiry could
not be completed, the Education Officer, Zilla Parishad, Sangli -
respondent No.2, sought extension of time for concluding the
enquiry. Vide communication dated 3 rd September, 2014,
Deputy Director, Education, Kolhapur Division, extended time to
complete enquiry by 40 days with a rider that time would not be
extended thereafter for any reason whatsoever.
(e) Respondent No.1 assailed the said decision to extend
the time by filing Writ Petition No.24299 of 2014. By an order
dated 15th September, 2014 this Court declined to interfere with
the said decision noting, inter alia, that the delay in conducing
the enquiry was attributable to respondent No.1. This Court,
however, granted permission to respondent No.1 to cross-
examine the petitioner - management's witness.
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(f) Recording of evidence of the petitioners witnesses
was concluded on 22nd September, 2014. The petitioner No.1
closed its evidence. Respondent No.1 sought leave to file a list of
witnesses and adduce evidence. The matter came to be posted to
the following day.
(g) On 23rd September, 2014, Respondent No.1 filed a list
of witnesses disclosing the name of Mr. Vishwanath Shridhar
Deodhar as defence witness No.1 and sought an adjournment
on the ground that Mr. Deodhar was unwell. The enquiry
committee by majority decided to reject the prayer for
adjournment. Thereupon respondent No.1 closed his evidence.
Giving further time to respondent No.1 to submit his further
explanation in accordance with Rule 37(4) of the Rules, 1981,
the enquiry was adjourned to 4th October, 2014.
(h) Eventually, the enquiry committee submitted report
on 10th October, 2014 and respondent No.1 was held guilty of
misconduct, and penalty of termination of service under Rule
29(5) of the Rules, 1981 was proposed. Based on the said
report, respondent No.1 was terminated by an order dated 13 th
October, 2014.
5. Respondent No.1 assailed the said order of termination in
appeal being Appeal No.103 of 2014 before the School Tribunal,
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Kolhapur. After appraisal of the material and hearing the
parties, the learned Presiding Officer, School Tribunal, was
persuaded to hold that the enquiry stood vitiated on account of
breach of the procedure prescribed in Rules, 1981 and the
principles of natural justice. Resultantly, the termination of
respondent No.1 was quashed and set aside with liberty to the
petitioner to conduct enquiry afresh from the stage of recording
of respondent No.1's evidence. The petitioners were also
directed to reinstate respondent No.1 notionally. During the
course of fresh enquiry the respondent No.1 was to be treated to
be placed under suspension. Consequential directions to pay
the subsistence allowance etc. were also given.
6. Being aggrieved the petitioners have invoked writ
jurisdiction of this Court.
7. It would be contextually relevant to note that though the
petition was filed on 7th June, 2017 no effective orders have been
passed.
8. Alleging that the petitioners have committed willful
disobedience of the order of the School Tribunal and deprived
respondent No.1 of the benefits which emanated therefrom,
respondent No.1 has preferred the contempt petition, being
Contempt Petition No.130 of 2020.
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9. In the light of the nature of the controversy, the writ
petition as well as the contempt petition were heard together.
10. Mr. Bandiwadekar, the learned Counsel for the petitioner,
strenuously submitted that the finding recorded by the School
Tribunal that the enquiry stood vitiated for not complying with
Rules, 1981 and principles of natural justice is completely
erroneous. The learned Presiding Officer, School Tribunal, lost
sight of the fact that respondent No.1 left no stone unturned to
derail the enquiry proceedings. A suit was instituted in the Civil
Court seeking stay to the enquiry proceedings. That matter
reached upto this Court. Despite the delay being clearly
attributable to respondent No.1, the latter resisted the
application to seek extension of time to complete the enquiry.
When the Deputy Director (Education) extended the period by
40 days, respondent No.1 challenged the said decision in this
Court.
11. Laying emphasis on the observations of this Court in the
order dated 15th September, 2014 in Writ Petition (St) No.24299
of 2014 Mr. Bandiwadekar would urge that this Court noted that
respondent No.1 was responsible for the delay. In this backdrop
and in view of the ultimatum given by the Deputy Director
education to complete the enquiry within 40 days the Enquiry
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Committee was constrained to reject the prayer for
adjournment.
12. Mr. Bandiwadekar further submitted that the contention
of respondent No.1 that fair opportunity of hearing was not
given to him was a mere subterfuge. Inviting the attention of
the Court to the list of witnesses dated 23 rd September, 2014
and the application for adjournment of even date Mr.
Bandiwadekar would submit that only one witness's name was
disclosed on 23rd September, 2014, who, to the knowledge of
respondent No.1, was suffering from cancer. The stand that
respondent No.1 would find out other witness whom he might
have examined was clearly in breach of the Rules. Under Sub-
Clause (ii) of Clause (a) of Sub-Rule (2) of Rule 37 both the
management and the employee were enjoined to notify in writing
to the convener of the enquiry committee the names of
witnesses whom they proposed to examine within 10 days of the
receipts of the copies of the charge-sheet. The eqnuiry
committee was thus justified in declining to grant adjournment
on such a flimsy ground. These factors, according to Mr.
Bandiwadekar, were completely missed by the learned Presiding
Officer, School Tribunal. Therefore, the impugned order deserves
to be interfered with.
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13. Per contra, Mr. A. M. Kulkarni, the learned Counsel for
respondent No.1, submitted that the breach of the provisions of
Rules 1981 and principles of natural justice is writ large.
Management closed its evidence at about 9.15 p.m. on 22 nd
September, 2014. On the very next day, the matter came to be
posted for recording of defence evidence at 4.30 pm.; under
not less than 24 hours. By no stretch of imagination such
process can be said to manifest a fair and efficacious
opportunity of hearing. Moreover, the reason assigned by
respondent No.1 for his inability to examine Mr. Deodhar was
not such that it could have been brushed aside as a mere
pretext.
14. I have given anxious consideration to the aforesaid
submissions. The Presiding Officer, School Tribunal, was of the
view that no effective opportunity of hearing was given to
respondent No.1 and, thus, the enquiry stood vitiated for breach
of the provisions of the Rules, 1981 and the principles of natural
justice. Whether the aforesaid approach of the School Tribunal
is justifiable?
15. Sub-section (6) of Section 4 of the Act, 1977 mandates
that no employee of a private school shall be suspended,
dismissed or removed or his services shall be otherwise
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terminated or he shall be reduced in rank by the management,
except in accordance with the provisions of the said Act and the
Rules made in that behalf. Rules 1981 contain elaborate
provisions for institution, conduct and procedure of an enquiry.
The avowed purpose of Rules 36 and 37 is to ensure that a
reasonable opportunity is given to the employee to defend
himself in case an eqnuiry to impose the penalty prescribed
under the Rules is instituted against him. The procedure
prescribed under Rules 36 and 37 subsumes the elementary
principles of natural justice and fair play to ensure that an
employee is not condemned unheard.
16. When a disciplinary action is assailed on the ground that
the eqnuiry is vitiated on account of breach of concept of fair
play, two issues crop up for the consideration. One, whether the
disciplinary proceedings is governed by any statutory or
normative frame work. If the proceedings are governed by the
rules, then the enquiry would proceed to determine whether
there was a breach of those rules. Two, if the disciplinary
proceedings is not governed by any rules, then whether the
proceedings were conducted in violation of fundamental
principles of natural justice. The cases may not fall in these two
watertight compartments. Often the dividing line blurs and the
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breaches overlap. In a given case, an infraction may amount to
breach of the statutory prescription as well as fundamental
principles of natural justice.
17. The enquiry does not rest at the finding as to whether
there was breach of statutory rule and/or principles of natural
justice. Each and every breach does not necessarily entail the
consequence of setting aside of the decision of the disciplinary
authority and the disciplinary proceedings itself. The Court may
be required to consider the nature of the provisions/principles
of which breach is alleged. Does it partake a procedural or
substantive character. Furthermore, whether the breach of the
provisions/principles resulted in such degree of prejudice as to
vitiate the sanctity of the proceedings?
18. A profitable reference can be made to the propositions
enunciated in the case of State Bank of Patiala and others vs S.
K. Sharma.1 They read as under:
"32. We may summarise the principles emerging from the
above discussion. [These are by no means intended to be
exhaustive and are evolved keeping in view the context of
disciplinary enquiries and orders of punishment imposed by
an employer upon the employee]:
(1) An order passed imposing a punishment on an employee
consequent upon a disciplinary/departmental enquiry in
violation of the rules/regulations/statutory provisions
governing such enquiries should not be set aside
automatically. The Court or the Tribunal should enquire
1 AIR 1996 Supreme Court 1669.
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whether (a) the provision violated is of a substantive nature
or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with
as explained hereinbefore and the theory of substantial
compliance or the test of prejudice would not be applicable
in such a case.
(3) In the case of violation of a procedural provision, the
position is this: procedural provisions are generally meant
for affording a reasonable and adequate opportunity to the
delinquent officer/employee. They are, generally speaking,
conceived in his interest. Violation of any and every
procedural provision cannot be said to automatically vitiate
the enquiry held or order passed. Except cases falling under
'no notice', 'no opportunity' and 'no hearing' categories, the
complaint of violation of procedural provision should be
examined from the point of view of prejudice, viz., whether
such violation has prejudiced the delinquent
officer/employee in defending himself properly and
effectively. If it is found that he has been so prejudiced,
appropriate orders have to be made to repair and remedy
the prejudicate, including setting aside the enquiry and/or
the order of punishment. If no prejudice is established to
have resulted therefrom, it is obvious, no interference is
called for. In this connection, it may be remembered that
there may be certain procedural provisions which are of a
fundamental character, whose violation is by itself proof of
The Court may not insist on proof of prejudice in such
cases. As explained in the body of the judgment, take a case
where there is a provision g expressly providing that after
the evidence of the employer/government is over, the
employee shall be given an opportunity to lead defence in
his evidence, and in a given case, the enquiry officer does
not give that opportunity inspite of the delinquent
officer/employee asking for it. The prejudice is self- evident.
No proof of prejudice as such need be called for in such a
case. To repeat, the test is one of prejudice, i.e., whether the
person has received a fair hearing considering all things.
Now, this very aspect can also be looked at from the point of
view of directory and mandatory provisions, if one is so
inclined. The principle stated under (4) hereinbelow is only
another way of looking at the same aspect as is dealt with
herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision which is not of a
mandatory characters the complaint of violation has to be
examined from the standpoint of substantial compliance. Be
that as it mays the order passed in violation of such a
provision can be set aside only where such violation has
occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provisional which
is of a mandatory character, it has to be ascertained
whether the provision is conceived in the interest of the
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person proceeded against or in public interest. If it is found
to be the former, then it must be seen whether the
delinquent officer has waived the said requirements either
expressly or by his conduct. If he is found to have waived its
then the order of punishment cannot be set aside on the
ground of said violation. If, on the other hand, it is found
that the delinquent officer/employee has not it or that the
provision could no be waived by him, then the Court or
Tribunal should make appropriate directions [include the
setting aside of the order of punishment], keeping in mind
the approach adopted by the Constitution Bench in B.
Karunkar. The ultimate test is always the same viz., test of
prejudice or the test of fair hearing, as it may be called."
19. Reverting to the facts of the case, the breach complained
and which found favour with the learned Presiding Officer,
School Tribunal, is that of not providing an effective opportunity
to lead evidence in defence. In the aforesaid context, it may be
expedient to note the relevant provisions of Rule 37. It reads as
under:
"37. Procedure of Enquiry
(1) .......
(2) (a) Within 10 days of the receipt of the copies of the
charge-sheet and the statement of allegations by the
employee or the Head, as the case may be.
(i) ........
(ii) If the management and the employee or the Head, as
the case may be, desire to examine any witnesses they shall
communicate in writing to the Convenor of the Enquiry
Committee the names of witnesses whom they propose to so
examine, and
(iii) ........
(b) Within 3 days after the expiry of the period of 10 days
specified in clause (a), the Enquiry Committee shall meet to
proceed with the enquiry and give 10 days notice by
registered post acknowledgement due to the Management
and the employee or the Head, as the case may be, to
appear for producing evidence, examining witnesses etc. if
any.
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(c) The Enquiry Committee shall see that every reasonable
opportunity is extended to the employee for defence of his
case.
(d) (i) The management shall have the right to lead
evidence and the right to cross examine the witnesses
examined on behalf of the employee.
(ii) The employee shall have the right to be heard in
person and lead evidence. He shall also have the right to
cross-examine the witnesses on behalf of the employee.
(iii) Sufficient opportunities shall be given to examine ali
witnesses notified by both the parties.
(e) .........
(f) The Enquiry shall ordinarily be completed within a
period of 120 days from the date of first meeting of the
Enquiry Committee or from the date of suspension of the
employee, whichever is earlier, unless the Enquiry
Committee has, in the special circumstances of the case
under Enquiry Committee has, in the special circumstances
of the case under enquiry, extended the period of completion
of the enquiry with the prior approval of the Deputy
Director. In case the enquiry is to be completed within the
period of 120 days or within the extended period, if any, the
employee shall cease to be under suspension and shall be
deemed to have rejoined duties, without prejudice to
continuance of the enquiry."
20. In the case at hand, the breach had allegedly occurred at
the stage of providing an opportunity to respondent No.1 to lead
evidence. As noted above, the enquiry could not be conducted
within a period of 120 days prescribed in Clause (f) of Sub-rule
(2) of Rule 37 (extracted above). The Deputy Director extended
the time by 40 days. Indisputably, the said period of 40 days
would have expired by 13th October, 2014. Again indisputably,
the evidence of the management was closed on 22 nd September,
2014 and the proceedings stood over to 23 rd September, 2014 for
filing list of witnesses by respondent No.1 and leading evidence
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in defence. Controversy revolves around the legality and
propriety of the proceeding of the inquiry committee held on 23 rd
September, 2014.
21. On that day, respondent No.1 filed a list of witnesses
disclosing Mr. Vishwanath Deodhar, resident of Tasgaon and
other unknown persons as witnesses. In the application for
adjournment, respondent No.1 asserted that the proceedings of
the enquiry lasted till 19.15 pm. the day before i.e. 22nd
September, 2014 and the enquiry stood over to the following day
i.e. 23rd September, 2014 at 4.00 pm. As Mr. Deodhar was
suffering from cancer it was not possible to keep him present
and adduce evidence. It was further contended that since the
enquiry came to be posted to the following day, respondent No.1
could not contact other persons, who could be examined as
witnesses and, therefore, an adjourment be granted. The said
prayer was resisted on behalf of the petitioners. The enquiry
committee was persuaded to reject the application by majority;
respondent No.1's nominee dissented.
22. Mr. Bandiwadekar would urge that the matter cannot be
looked at only from the perspective of the short interval between
the closure of the evidence of the petitioner - management and
the date fixed for recording respondent No.1's evidence. The
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entire setting of the matter is required to be kept in view.
Respondent No.1's persistent efforts to derail the enquiry were
properly accounted for by the enquiry committee. Moreover, the
time limit fixed by the Deputy Director was to be strictly
adhered to.
23. The aforesaid submissions are required to be appreciated
in the light of the object of the elaborate prescription contained
in Rule 37 of the Rules, 1981. The rules emphasize that the
enquiry committee shall ensure that every reasonable
opportunity is extended to the employee for his defence. Leading
evidence in defence is an inviolable right of the employee under
the Rules, 1981. Sub-clause (iii) of Clause (d) of Sub-rule (2) of
Rule 37 emphasizes that sufficient opportunity shall be given to
examine all witnesses notified by both the parties. I find
substance in the submission of Mr. Kulkarni that time of less
than 24 hours cannot be said to be a reasonable opportunity by
any standard.
24. Mr. Bandiwadekar attempted to salvage the position by
canvassing a submission that respondent No.1 had not
furnished the list of witnesses within 10 days of the receipt of
the charge-sheet as mandated by Sub-clause (ii) of Clause (a) of
Sub-Rule (2) Rule 37. This submission does not advance the
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cause of the petitioner as on the date the evidence of the
management was closed, the enquiry committee had granted
permission to respondent No.1 to file the list of witnesses and
adduce evidence. The enquiry committee did not deny
opportunity to respondent No.1 on the ground that a list of
witnesses as mandated by Sub-clause (ii) of Clause (a) of Sub-
Rule (2) Rule 37 was not filed.
25. The submission that the enquiry committee was
constrained by the time limit stipulated by the Deputy Director
(Education) also does not merit acceptance. The respondent
No.1's evidence was closed on 23rd September, 2014. On that
day adjournment was sought on the ground that Mr. Deodhar,
who was to be examined on behalf of respondent No.1, was
unwell. The Enquiry Committee could have granted few days
time to respondent No.1 to lead evidence in defence and yet
adhered to the time limit stipulated by Deputy Director
(Education). Instead the enquiry committee straightway
proceeded to close the evidence and thereby deprived
respondent No.1 of a valuable right to lead evidence in defence.
Such infraction surely caused prejudice as the enquiry
committee had not had the benefit of the evidence in rebuttal.
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26. In the aforesaid circumstances, the learned Presiding
Officer, School Tribunal, was justified in recording a finding that
the enquiry was vitiated for breach of the provisions of the
Rules, 1981 and the principles of natural justice. The Course
adopted by the learned Presiding Officer, School Tribunal, in
setting aside the termination order with liberty to hold a fresh
enquiry from the stage the breach occurred cannot also be
faulted at. It is well neigh settled that once the Court/Tribunal
sets aside an order of punishment on the ground that the
enquiry has not been properly conducted the Court/Tribunal
should not preclude the employer from holding enquiry in
accordance with law. It must remit the matter to the
Disciplinary Authority to conduct the enquiry from the point it
stood vitiated, and to conclude the same in accordance with law.
27. Consequential directions to reinstate respondent No.1
notionally for the purpose of conducting the enquiry, and treat
respondent No.1 to be under suspension with direction to pay
the subsistence allowance are in order. Resultantly, no
interference is warranted with the impugned order in exercise of
extraordinary writ jurisdiction.
28. The contempt petition filed by respondent No.1 need not
detain the Court any more. Section 13 of the Act, 1977
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incorporates an efficacious remedy by prescribing penalty for
non-compliance of the directions issued by the Tribunal Under
Section 11. On conviction the management is liable to be
punished with imprisonment or fine or both. The order passed
by the Tribunal is also executable as an "order" within the
meaning of Section 2(14) of the Code of Civil Procedure, 1908. A
petition for contempt on account of alleged willful disobedience
of the order passed by the Tribunal is thus not tenable before
this Court. A judgment of this Court in the case of Mohammad
Salam Anamul Haque vs. S. A. Azmi and others 2 settles this
position in law. Consequently, the contempt petition does not
deserve to be entertained.
29. The conspectus of the aforesaid discussion is that both
the Writ Petition and Contempt Petition deserve to be dismissed.
30. Hence, the following order:
:ORDER:
(i) Writ Petition No.1851 of 2018 stands dismissed with
costs.
Rule discharged.
(ii) Contempt Petition No.130 of 2020 also stands
dismissed.
(iii) Pending application(s), if any, stand(s) disposed.
[N. J. JAMADAR, J.]
2 (2001) 1 Mah LJ 249.
