Bombay High Court
Santosh S/O Jaising Shele vs Shri. Vilasrao Deshmukh Shikshan ... on 30 August, 2023
Bench: Avinash G. Gharote
2023:BHC-NAG:12871
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3420/2019
PETITIONERS 1. Shri Vilasrao Deshmukh Shikshan Prasarak
(Ori. Res. No.1) Va Bahuuddeshiya Sanstha, Buldhana,
through its President C/o Head Master, Rajiv
Gandhi Military School & Junior College
(Science) Kolwad, Tq. & Dist. Buldhana.
2. Head Master, Rajiv Gandhi Military School
(Ori. Res. No.2)
& Junior College (Science) Kolwad, Tq. &
Dist. Buldhana.
...Versus...
RESPONDENTS 1. Santosh Jaising Shele, Occ. (Asstt. Teacher)
(Ori. Appellant) Aged about 37 years, Rajiv Gandhi Military
School & Junior College (Science) Kolwad,
Tq. & Dist. Buldhana, Postal Add. Near
Church, Mayashoda Nagar, Agrawal Layout,
Buldhana, Tq. & Dist. Buldhana.
(Ori. Res. No.3) 2. The Education Officer (Secondary), Z.P.,
Buldhana, District : Buldhana.
Mr. M.G. Bhangde Senior Advocate a/b Mr. P.B. Patil, Advocate for petitioners
Mr. F.T. Mirza, Advocate for respondent no.1
Mrs. M.A. Barabde, AGP for respondent no.2
WITH
WRIT PETITION NO.3414/2019
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2
PETITIONERS 1. Shri Vilasrao Deshmukh Shikshan Prasarak
(Ori.Res. No.1) Va Bahuuddeshiya Sanstha, Buldhana,
through its President C/o Head Master, Rajiv
Gandhi Military School & Junior College
(Science) Kolwad, Tq. & Dist. Buldhana.
2. Head Master, Rajiv Gandhi Military School
(Ori. Res. No.2)
& Junior College (Science) Kolwad, Tq. &
Dist. Buldhana.
...Versus...
RESPONDENTS 1. Umesh Ramesh Waghmare
(Ori. Appellant) (Asst. Teacher) Aged about 33 years,
Rajiv Gandhi Military School & Junior
College (Science) Kolwad, Tq. & Dist.
Buldhana. Postal Add :- Near Jain Mandir,
Mahavir Nagar Buldhana, Tq. & Dist.
Buldhana.
(Ori.Res. No.3) 2. The Education Officer (Secondary), Z.P.,
Buldhana, District : Buldhana.
Mr. M.G. Bhangde Senior Advocate a/b Mr. P.B. Patil, Advocate for petitioners
Mr. F.T. Mirza, Advocate for respondent no.1
Mrs. M.A. Barabde, AGP for respondent no.2
WITH
WRIT PETITION NO.3418/2019
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3
PETITIONERS 1. Shri Vilasrao Deshmukh Shikshan Prasarak
(Ori.Res. No.1) Va Bahuuddeshiya Sanstha, Buldhana,
through its President C/o Head Master, Rajiv
Gandhi Military School & Junior College
(Science) Kolwad, Tq. & Dist. Buldhana.
2. Head Master, Rajiv Gandhi Military School
(Ori. Res. No.2)
& Junior College (Science) Kolwad, Tq. &
Dist. Buldhana.
...Versus...
RESPONDENTS 1. Vijay Prakash Pawar
(Ori. Appellant) (Asst. Teacher) Aged about 34 years,
Rajiv Gandhi Military School & Junior
College (Science) Kolwad, Tq. & Dist.
Buldhana.
Postal Add.
C/o Shri Ravindra Chandrakant Mukwane
Saraswati Nagar, Circular Road, Tq. & Dist.
(Ori.Res. No.3) Buldhana.
2. The Education Officer (Secondary), Z.P.,
Buldhana, District : Buldhana.
Mr. M.G. Bhangde Senior Advocate a/b Mr. P.B. Patil, Advocate for petitioners
Mr. F.T. Mirza, Advocate for respondent no.1
Mrs. M.A. Barabde, AGP for respondent no.2
WITH
WRIT PETITION NO.7698/2019
PETITIONER Umesh s/o Ramesh Waghmare
[ORI APPELLANT] Aged about 37 years, Occu. : At Present
Nil R/o Mahavir Nagar, Near Jain Mandir
Buldana Tq. And Dist. Buldana.
...Versus...
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RESPONDENTS 1. Shri Vilasrao Deshmukh Shikshan Prasarak
[ORI RESPONDENT] Va Bahuddeshiya Sanstha, Buldhana,
Through its President R/o C/o Head Master,
Rajiv Gandhi Military School & Junior College
(Science), Kolwad, Tq. And Distt. Buldhana.
2. Rajiv Gandhi Military School & Junior
College (Science), Through its Head Master,
Kolwad, Tq. And Distt. Buldhana.
3. The Education Officer (Secondary), Zilla
Parishad, Buldhana.
Mr. F.T. Mirza, Advocate for petitioner
Mr. M.G. Bhangde Senior Advocate a/b Mr. P.B. Patil, Advocate for respondent
nos.1 & 2
Mr. M.A. Barabde, AGP for respondent no.3
WITH
WRIT PETITION NO.7700/2019
PETITIONER Vijay S/o Prakash Pawar
[ORI APPELLANT] Aged about 36 years,
Occu. At Present Nil, C/op Ravindra
Chandrakant Mukwane, Saraswati Nagar
Circular Road, Buldana, Tq. & Dist.
Buldhana.
...Versus...
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RESPONDENTS 1. Shri Vilasrao Deshmukh Shikshan Prasarak
[ORI RESPONDENT] Va Bahuuddeshiya Sanstha, Buldhana,
Through its President R/o C/o Head Master,
Rajiv Gandhi Military School & Junior
College (Science) Kolwad, Tq. &
Dist. Buldhana.
2. Rajiv Gandhi Military School & Junior
College (Science) Through its Head Master
Kolwad, Tq. & Distt. Buldhana.
3. The Education Officer (Secondary),
Zilla Parishad, Buldhana.
Mr. F.T. Mirza, Advocate for petitioners
Mr. M.G. Bhangde Senior Advocate a/b Mr. P.B. Patil, Advocate for respondent
nos.1 & 2
Mrs. M.A. Barabde, AGP for respondent no.3
WITH
WRIT PETITION NO.7699/2019
PETITIONER Santosh S/o Jaising Shele,
(ORI APPELLANT) Aged about 40 years, Occu :- At present
Nil R/o near Church, Maa Yashoda Nagar,
Agrawal Layout, Tq. & Distt. Buldhana.
...Versus...
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RESPONDENTS 1. Shri Vilasrao Deshmukh Shikshan Prasarak
(ORI RESPONDENT) Va Bahuuddeshiya Sanstha,
Buldhana, through its President R/o
C/o Head Master, Rajiv Gandhi Military
School & Junior College (Science) Kolwad,
Tq. & Dist. Buldhana.
2. Rajiv Gandhi Military School & Junior
College (Science) Through its Head Master
Kolwad, Tq. & Dist. Buldhana.
3. The Education Officer (Secondary),
Zilla Parishad, Buldhana.
Mr. F.T. Mirza, Advocate for petitioners
Mr. M.G. Bhangde Senior Advocate a/b Mr. P.B. Patil, Advocate for respondent
nos.1 & 2
Mrs. M.A. Barabde, AGP for respondent no.3
CORAM : AVINASH G. GHAROTE, J.
Date of reserving the judgment : 27/07/2023
Date of pronouncing the judgment : 30/08/2023
1. Writ Petition Nos.3420/2019; 3414/2019 and
3418/2019 are by the Management against the impugned judgment
of the learned School Tribunal dated 16/03/2019 which has set
aside the order of termination dated 06/01/2016 and has granted
liberty to the Management to conduct de novo enquiry from the
stage of Rule 36 (2) of the Maharashtra Employees of Private Schools
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(Conditions of Service) Rules, 1981 (for short, "MEPS Rules",
hereinafter).
2. Writ Petition Nos.7698/2019; 7700/2019 and
7699/2019 are by the employees questioning the judgment of the
learned School Tribunal insofar as it grants liberty to the
management to conduct enquiry from the stage of Rule 36(2) of the
MEPS Rules.
3. Mr. Bhangde, learned senior counsel along with Mr. Patil
Advocate appears for the Management and Advocate Mr. Firdos
Mirza appears for the employees. Mrs. Barabdhe learned AGP
appears for the Education Officer (secondary). Rule. Rule made
returnable forthwith. Heard finally with the consent of the learned
counsels for the rival parties.
4. Mr. Bhangde, learned Senior Counsel for the petitioner
submits, the basic pleas in all the petitions, except for some dates,
are the same and they can be decided by a common judgment.
According to learned Senior Counsel the controversy is on a narrow
fulcrum inasmuch as the learned School Tribunal, has set aside the
order of termination and remanded the matter back on an incorrect
premise that the convener under Rule 36(5) of the MEPS Rules and
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the representative of the management of the Enquiry Committee
under Rule 36 (2) (a) (i) of the MEPS Rules, cannot be the same
person. It is contended, that there is no statutory prohibition or bar
for the same person to act in a dual capacity, and therefore, the
finding rendered in that regard is incorrect.
5. It is also contended, that while acting as a member of
the Enquiry Committee the person acts in an adjudicatory capacity
and while in his role as a convener, the same person performs
secretarial function, and therefore, there is no conflict between the
two roles. It is further contended, that no objection was ever raised
by the respondent/employee to the functioning of the representative
of the management in the Enquiry Committee in a dual capacity on
account of which relying upon Padmini Singha Vs. State of Assam
And Others (2018) 10 SCC 561 (para 13), it is submitted, that since
the provision has been made for the benefit of the employee, by
participating in the enquiry without protest the same stands waived
by him and he cannot now be heard to raise that objection for the
first time in appeal before the Tribunal. Padmini Singha (supra), has
been relied on in Rukhmina Rajesh Dange Vs. Kailash Natthuji
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Pawar and others., Writ Petition No.2047/2019, decided on
05/04/2019 (para 8/pg.37).
6. The participation without protest, according to him, is
demonstrated by the communication dated 12/08/2015 (pg.18),
whereby Vishwanath Yeduji Mali was appointed as a representative
of the management on the Enquiry Committee as well as the
convener, to which the objection raised by the respondent/employee
by his communication dated 19/08/2015 (pg.19), according to him
was only to the effect that based upon his conduct in an earlier
enquiry he was apprehensive that the said Vishwanath Yeduji Mali
would be biased against the employee. No objection regarding the
dual role of Shri Vishwanath Yeduji Mali has been taken. This
objection regarding bias as raised by the employee was rejected by
the Managing Committee which is communicated to the respondent/
employee by the communication dated 05/09/2015 (page 20) after
which the respondent/employee has participated in the enquiry
without any demur or protest, and therefore, was estopped from
raising this plea now.
7. Reliance is also placed on Municipal Commissioner,
Calcutta and others Vs. Salil Kumar Banerjee and Others (2000) 4
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SCC 108, to contend that once a person submits, to the jurisdiction
of an authority, after participation he cannot raise an objection
regarding the incapacity of the authority. It is further contended, that
judgment in Nandkumar Mahadeo Dengane Vs. Bhavika Vidya
Prasarak Mandal and others 2008 (5) Mh.L.J. 598 , does not lay
down a proposition that the representative of the management in an
Enquiry Committee cannot act in a dual capacity, also that of a
convener under Rule 36 (5) of the Rules framed under the MEPS
Act. Nandkumar Mahadeo Dengane (supra) according to the learned
Senior Counsel was decided on an incorrect factual position
inasmuch as the committee constituted by the communication dated
17/06/2006 originally contained one Mrs. Devangana Bhagwan Keni
as the management representative. She however, was replaced by a
communication dated 20/06/2006 by one Prabhakar Jadhav, as the
management representative/convener. This fact of replacement of
Mrs. Devangana Bhagwan Keni by Prabhakar Jadhav has been lost
sight of inasmuch as, the learned Court holds that the enquiry report
ought to have been signed by Mrs. Devangana Bhagwan Keni
ignoring the fact that she had been replaced by Prabhakar Jadhav as
the representative of the management.
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8. Letters Patent Appeal No.403/2008 carried forward
against this before the learned Division Bench also proceeds on the
same incorrect factual position, apart from which, it proceeds on a
presumption that representative of the management and the
convener are different persons. It is therefore contended, that
Nandkumar Mahadeo Dengane (supra) and the judgment of the
learned Division Bench in appeal does not lay down the correct
position, in light of the factual incorrect position considered.
9. It is therefore submitted, that the finding by the learned
School Tribunal when it holds that the representative of the
management on the Enquiry Committee cannot act in a dual
capacity also as that of a convener under Rule 36 (5) of the MEPS
Rules, does not have any sanction of law on account of which it
stands vitiated, and therefore, setting aside of the termination and
the de novo enquiry granting liberty to conduct is not justifiable in
law.
10. Mr. F.T. Mirza, learned counsel for the
respondent/employee, submits that this is the second time where the
matter has been remanded for a de novo enquiry, all of which
according to him is at the behest of Mr. Mali who was then the
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president. The earlier order of termination dated 12/05/2014 was
challenged before the School Tribunal, which was set aside by the
judgment, dated 21/02/2015, challenge to which was raised before
this Court in Writ Petition Nos. 2459/2015; 2460/2016 and
2461/2016, which came to be allowed on 24/02/2015 directing
conducting of de novo enquiry after the judgment of School Tribunal
dated 21/02/2015 was set aside. It is contended that thereafter
again the enquiry took place resulting in the termination of the
petitioners on 06/01/2016 against which appeals by the employees
before the learned School Tribunal came to be allowed on
16/03/2019 by the impugned judgment (pg.168). It is contended
that the judgment of this Court in Nandkumar Mahadeo Dengane by
the learned Single Judge (supra) and the appeal carried to the
learned Division Bench by way of Letters Patent was a law laid down
and therefore could not be ignored as is being sought to be
contended. Reliance for which is placed upon State of Bihar Vs.
Kalika Kuer Alias Kalika Singh and others (2003) 5 SCC 448 (paras
4, 6, 10). It is also contended that the doctrine of stare decises also
prevents such a course of action for which Trimurthi Fragrances (P)
Ltd. through its Director Shri Pradeep Kumar Agrawal Vs.
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Government of N.C.T. of Delhi through its Principal Secretary
(Finance) and others 2022 SCC OnLine 1247 is relied upon
(para 18).
11. It is further contended that the plea that no objection
was raised to the appointment of Shri Mali as a convener as well as
representative of the management on the Enquiry Committee is
incorrect, as the communication dated 19/08/2015 (pg.19)
specifically indicates that the participation of Shri Mali in the
enquiry committee could not be permitted, which would indicate
that even the inclusion of the said person was objected to. He also
contends that the pleas which are raised before the enquiry
committee in absence of legal representation being permitted, ought
to be viewed in a liberal manner. He therefore contends that
Shri Mali could not act in a dual capacity, both as a convener as well
as the representative of the management in the enquiry committee
and such participation is indicated from all the documents of the
enquiry, as Shri Mali has signed all documents as convener and so
also the enquiry report as a member of the enquiry committee. It is
also contended that the charges against the petitioners are not that
serious pointing out to page 25, the charge-sheet and therefore the
remand by the learned School Tribunal for de novo enquiry,
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according to him, is not tenable and would result in the same
consequence as had happened on the earlier occasions, for which he
places reliance upon Shri Gajanan Dnayan Prakash Sanstha, Andura,
Through the Secretary and another Vs. Ramdas Shaligram Kale and
others, Writ Petition No.394/2020, decided on 22/09/2021 (para 15
& 16). It is therefore submitted that the petitions filed by the
employees need to be allowed and those filed by the petitioner
management need to be dismissed.
12. Mr. Bhangde, learned senior counsel in rebuttal submits
that the consideration of judgments of the learned Single Judge in
Nandkumar Mahadeo Dengane and the one in appeal are not being
objected on the ground of they being per incurium but on the
ground that a relevant fact was missed by the Court and therefore
have been decided on an incorrect factual premise. Inviting my
attention to the judgment of the School Tribunal, specifically paras
14 to 18 (pages 160-162), it is contended that the plea of bias as
raised by the employees has been rejected by the learned School
Tribunal and therefore, it is no longer permissible for the employees
to contend otherwise, regarding the inclusion of Mr. Mali in the
committee. It is also contended that had the objection regarding
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inclusion of Shri Mali in the Enquiry Committee been taken at an
appropriate time, the same could have been considered by the
management by taking corrective measures and since that
opportunity has been lost, the same is not permissible to be raised
now. Since the plea of bias has been rejected, there is no ground
available for objecting to the de novo enquiry. The enquiry was as
per law and the matter could be sent back to the learned School
Tribunal regarding the punishment to be imposed. It is also
contended that unless and until there is a finding that a de novo
enquiry would be a facade, there is no reason why it should not be
ordered. Even if the enquiry is defective, then also de novo enquiry
is required to be directed. It is therefore contended that the petition
filed by the management needs to be allowed and that by the
employees need to be dismissed.
13. Facts are taken from Writ Petition No.3414/2019.
14. Rules 36 and 37 of the MEPS Rules read as under :
"36. Inquiry Committee. - (1) If an employee is allegedly found
to be guilty on [any of the grounds specified in sub-rule (5) of
rule 28] and the Management decides to hold an inquiry, it
shall do so through a properly constituted Inquiry Committee.
Such a committee shall conduct an inquiry only in such cases
where major penalties are to be inflicted. The Chief Executive
Officer authorised by the Management in this behalf (and in
the case of an inquiry against the Head who is also the Chief
Executive Officer, the President of the Management) shall
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communicate to the employee or the Head concerned by
registered post acknowledgement due the allegations and
demand from him a written explanation within seven days
from the date of receipt of the statement of allegations.
[(2) If the Chief Executive Officer or the President, as the case
may be, finds that the explanation submitted by the employee
or the Head referred to in sub-rule (1) is not satisfactory, he
shall place it before the Management within fifteen days from
the date of receipt of the explanation. The Management shall
in turn decide within fifteen days whether an inquiry be
conducted against the employee and if it decides to conduct
the inquiry, the inquiry shall be conducted by an Inquiry
Committee constituted in the following manner, that is to say, -
(a) in the case of an employee -
(i) one member from amongst the members of the
Management to be nominated by the Management, or by the
President of the Management if so authorised by the
Management, whose name shall be communicated to the Chief
Executive Officer within 15 days from the date of the decision
of the Management;
(ii) one member to be nominated by the employee from
amongst the employees of any private school;
(iii) one member chosen by the Chief Executive Officer from
the panel of teachers on whom State/National Award has been
conferred;
(b) in the case of the Head referred to in sub-rule (1) -
(i).............
(ii)............
(iii)............
(3) ...........
(4) ............
(5) The Convener of the respective Inquiry Committee shall be
the nominee of the President, or as the case may be, the
President who shall initiate action pertaining to the conduct of
the Inquiry Committee and shall maintain all the relevant
record of the inquiry.
(6) ..........
37. Procedure of Inquiry :-
(1) The Management shall prepare a charge sheet containing
specific charges and shall hand over the same together with the
statement of allegations and the explanation of the employee or
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the Head, as the case may be, to the Convener of the Inquiry
Committee and also forward copies thereof to the employee or
the Head concerned by registered post acknowledgment due,
within 7 days from the date on which the Inquiry Committee is
deemed to have been constituted.
(2) (a) Within 10 days of the receipt of the copies of charge
sheet and the statement of allegations by the employee or the
Head, as the case may be-
(i) If the employee or the Head, as the case may be, desires to
tender any written explanation to the charge-sheet, he shall
submit the same to the Convener of the Inquiry Committee in
person or send it to him by registered post acknowledgement
due.
(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 Convener of the Inquiry
Committee the names of witnesses whom they propose to so
examine, and
(iii) If the Management desires to tender any documents by
way of evidence before the Inquiry Committee, it shall supply
true copies of all such documents to the employee or the Head,
as the case may be. If the documents relied upon by the
Management is a register or record of the school it shall permit
the employee or the Head, as the case may be, to take out
relevant extracts from such register or record. The employee or
the Head, as the case may be, shall supply to the Management
true copies of all the documents to be produced by him in
evidence.
(b) Within 3 days after the expiry of the period of 10 days
specified in clause (a), the Inquiry Committee shall meet to
proceed with the inquiry and give 10 days notice by registered
post acknowledgment 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.
(c) The Inquiry Committee shall see that every reasonable
opportunity is extended to the employee for defending 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
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right to cross-examine the witnesses examined on behalf of the
Management. (iii) Sufficient opportunities shall be given to
examine all witnesses notified by both the parties.
(e) All the proceedings of the Inquiry Committee shall be
recorded and the same together with the statement of
witnesses shall be endorsed by the both the parties in token of
authenticity thereof. The refusal to endorse the same by either
of the parties shall be recorded by the Convener.
(f) The inquiry shall ordinarily be completed with in period of
120 days form the date of first meeting of Inquiry Committee,
or from the date of suspension of the employee, whichever is
earlier, unless the Inquiry Committee has, in the special
circumstances of the case under inquiry, extended the period of
completion of the inquiry with the prior approval of the Deputy
Director. In case the inquiry is not 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
inquiry.
(3) The Management and the employee or the Head, as the
case may be, shall be responsible to see that their nominees
and the witnesses, if any , are present during the inquiry.
However if the Inquiry Committee is convinced about the
absence of either of the parties to the disputes or any of the
members of the Inquiry Committee on any valid ground, the
Inquiry Committee shall adjourn that particular meeting of the
Committee. The meetings so adjourned shall be conducted
even in the absence of person concerned if he fails to remain
present for the said adjourned meeting.
(4) The Convener of the Inquiry Committee shall forward to
the employee or the Head, as the case may be, summary of the
proceedings and copies of statements of witnesses, if any, by
registered post acknowledgment due within four days of
completion of the above steps and allow him a time of seven
days to offer his further explanation, if any.
(5) The employee or the Head, as the case may be, shall
submit his further explanation to the Convener of the Inquiry
Committee within a period of seven days from the date of
receipt of the summary of proceeding etc. either personally or
by registered post acknowledgment due.
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(6) On receipt of such further explanation or if no explanation
is offered within the aforesaid time, the Inquiry Committee
shall complete the inquiry and communicate its findings on the
charges against the employee and its decision on the basis of
these findings to the Management for specific action to be
taken against the employee or the Head, as the case may be,
within ten days after the date fixed for receipt of further
explanation. It shall also forward a copy of the same by
registered post acknowledgment due to the employee or the
Head, as the case may be. A copy of the findings and decision
shall also be endorsed to the Education Officer or the Deputy
Director, as the case may be, by registered post
acknowledgment due. Thereafter, the decision of the Inquiry
Committee shall be implemented by the Management which
shall issue necessary orders within seven days from the date of
receipt of decision of the Inquiry Committee, by registered post
acknowledgment due. The Management shall also endorse a
copy of the order to the Education Officer or the Deputy
Director, as the case may be."
14.1. Though the role of the convener is not adjudicatory in
nature, however, the role has equal importance in the matter of
conducting an enquiry. This is evident from a perusal of rule 37 of
the MEPS Rules, whereunder by virtue of Rule 37 (1) the charge-
sheet; statement of allegations; explanation submitted by the
delinquent employee have to be handed over to the convener. Under
Rule 37 (2)(a)(i). Under Rule 37 (2) (a),(ii), the explanation by the
employee to the charge-sheet has to be submitted to the convener.
Under Rule 37 (2) (e) refusal to endorse proceedings in the
statement of witnesses has to be recorded by the convener. Under
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Rule 37 (4), summary of proceedings and copies of statement of
witnesses, if any, have to be forwarded to the employee by RPAD by
the convener. Under Rule 37 (5), the employee has to submit his
explanation to the convener.
14.2. Thus the convener is entrusted with the task of ensuring
the compliance's with the above Rules in the matter of conduct of
the enquiry. The above Rules ensure an equal opportunity being
afforded to the employee in the matter of conduct of an enquiry and
any violation thereof may result in the entire enquiry being vitiated.
Thus the role of the convener cannot be underplayed, for it is upon
his ensuring compliance with the above Rules that the enquiry when
tested on the touchstone of fairness may stand or fail. The member
of the Enquiry Committee on the other hand is not concerned with
the above compliances.
14.3. It is thus apparent that the control of all the records of
the enquiry proceedings is with the convener who is to not only
write the record of the proceedings, but also to ensure that the
provisions of the above rules are duly complied with. In such cases in
order to ensure fairness of the proceedings, it is always necessary to
ensure that the person to be appointed as Convener be a person,
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other than a member of the Enquiry Committee. Doing so would
ensure that all allegations regarding bias or mischief in the matter of
writing the order sheets, compliance with the above Rules stand
obviated and the fairness of the enquiry is ensured.
14.4. The test of bias as held in the contextual background of
Rule 36(5) of the MEPS Rules in Shri Gurukul Shikshan Prasarak
Mandal through its Secretary/Chairman and another Vs. Sharda
Ashok Suryagandh and another, Writ Petition No.1999/2011 with
connected petition, decided on 17/10/2019, is not whether in fact
bias has affected the judgment, but the test always is whether a
litigant could reasonably apprehend that a bias attributable to a
member might have operated against him, in the final decision of
the Committee.
14.5. The question of actual bias has to be looked at with the
perspective of the employee. The representative of the management
on the Enquiry Committee is always invariably a person who is
either a part of the management or a person who is close or in
control of the management. When the enquiry is against the Head
Master the representative is the President, who by the very nature of
the post which he holds in the management is bound to lean in
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favour of the management. By this very fact an element of bias
naturally seeps in, which is invariably tilted in favour of the
management. As against this the representative of the employee,
most of the times, is a person who is unknown to the employee and
has to be searched for and found by the employee with a request to
be his representative in the Enquiry Committee. Thus when the
management has readily available, several persons who would be
willing to act as its representative, the position is converse for the
employee who has to search for a person suitable for and willing , in
this regard. Had it been a position that the management would also
have been required to appoint as its representative a person who
was not a part of the management or the institutions run by it, but a
totally independent and unconnected person, the situation would
have been different, for then, the scales would have been evenly
balanced. That however is not the case.
14.6. Over and above it, the Convener then under Rule 36(5)
of the MEPS Rules again has to be a person appointed by the
management. When the convener is also the representative of the
management in the inquiry, the perception of bias stands
compounded, for as indicated above, the role of the convener is of
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great importance in the enquiry and though he may not be a part of
the decision making process, several of the functions assigned to
him, under Rule 37 of the MEPS Rules, as indicated above could be
crucial in decision making. This is more so in a case where the
employee is proceeded exparte when the role of the convener in
maintaining and recording of the proceedings and ensuring
compliance with the requirements of the provisions as contained in
Rule 37, become crucial for ensuring the impartiality and fairness of
the enquiry. The finding therefore that there was no actual bias, on
the facts, in the present matter, when the representative of the
management on the Enquiry Committee was also the convener
cannot be sustained, more so when the appointment of the
representative of the management on the enquiry committee as well
as his appointment as a Convener was objected to by the respondent
employee as indicated above.
14.7. In so far as Rule 36 of the MEPS Rules are concerned
Rule 36(5) thereof does not make it mandatory for the President to
be the Convener. This may be indicated by use of the expression
"The Convener of the respective Inquiry Committee shall be the
nominee of the President,--" occurring therein. Though the President
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can himself be the Convener, but considering that fairness of the
enquiry has to be maintained throughout, it would always be
necessary that in case the President is the Member of the Enquiry
Committee, then he nominates someone else to be the Convener.
15. Nandkumar Mahadeo Dengane (supra) in respect of the
role of the convener holds as under :
"9. .......
Sub-Rule (5) of Rule 36 states that the convenor of the
respective enquiry committee shall be the nominee of the
President, or as the case may be, the President who shall
initiate action pertaining to the conduct of the enquiry
committee and shall maintain all the relevant record of the
enquiry. It is thus clear that the convenor is not a member of
the enquiry committee but is associated with the enquiry
committee with a limited role and it is his duty to initiate
action pertaining to the conduct of the enquiry and to maintain
all the relevant record of the enquiry. If the enquiry is
adjourned from time to time it is the duty of the convenor to
intimate the next date of the enquiry sittings but he does not
participate in the enquiry proceedings as a member of the
enquiry committee. He assists the enquiry committee in the
secretarial role."
Though it is correct that in Nandkumar Mahadeo Dengane (supra)
the nominee of the management upon the enquiry committee was
changed from Smt. Devangana Keni to Shri Prabhakar Jadhav and
therefore the enquiry report signed by Shri Prabhakar Jadhav, could
not have been held to have been infirm, however that does not deter
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from what has been been said about the role of Convener appointed
under Rule 36(5) of the MEPS Rules in para 15 as quoted above, as
that is a proposition which the Court has culled out from the
provision and the factuality of the matter does not have any bearing
upon it. That apart, the above incorrect factual position has been
stated in reference to vitiating of the enquiry in the context of
Rule 37(6) of the MEPS Rules and not otherwise. The contention
therefore that Nandkumar Mahadeo Dengane (supra) ought not to
be considered cannot be accepted in view of the above position.
16. Nandkumar Mahadeo Dengane (supra) was challenged
in appeal before the learned Division Bench in Letters Patent Appeal
No.403/2008 (Bhavika Vidyaprasarak Mandal Vs. Mrs. Rekha
Hemant Khairnar) which came to be decided vide judgment dated
27/02/2009 along with connected petitions. The following is what
has been said by the learned Division Bench in respect of Rule 36(5)
of the MEPS Rules and the dual role of the convener as the member
of the Enquiry Committee :
"14. The learned Single Judge has rightly held that there is one
other facet which vitiates the inquiry proceedings i.e. there is
breach of Rule 36(5). Sub-Rule (5) of Rule 36 deals with the
role of the convener of the inquiry committee. On plain reading
of sub-rule (5) of Rule 36, it is clear that the convener cannot
participate in the inquiry proceedings as member of the inquiry
committee and his role is to assist the committee by playing a
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secretarial role. This is further clear from sub-rules (4), (5) and
(6) of Rule 37. In the present case, it is seen that convener
presided over the inquiry and has participated in the inquiry
proceedings as a member and the convener has also signed the
report of the inquiry committee. Thus, there is clear
contravention of mandatory requirement of Rules 37(3) to (6)
of the MEPS Rules. -----."
Thus the learned Division Bench of this Court has affirmed the view
that the Convener cannot act as a member of the Enquiry
Committee.
17. In Ravindra Shikshan Prasarak Mandal through is
Secretary Vs. Madhukar Atmaram Koche and others 2014 SCC
OnLine Bom 1747 it has been held as under :
"17. Though there is no prohibition for the President to act as
member of the Enquiry Committee as per the Rules, the fact in
the present case is that the President was convener of the
Departmental Enquiry who had issued show cause notice to
respondent No. 1, the list of documents and as such the
President could not have acted in dual capacity as convener of
the enquiry as well as the member of the Enquiry Committee."
18. In Rayat Shikshan Sanstha, Satara Through its
Secretary and Another Vs. Appa Bhimrao Pol and Another 2016 SCC
OnLine Bom 6533, the role of the Convener under Rule 36(5) of the
MEPS Rules was held to be as under :
"36. In so far as the view taken by the school tribunal that the
Convenor of the enquiry committee appointed by the
management only has a secretarial role in conducting an
enquiry and does not participate in the enquiry proceedings is
concerned, this view of the school tribunal is totally contrary to
Rule 36(2)(a)(i) and also Rules 37(1) and 37(2)(a) of the
MEPS Rules. In my view, the Convenor of the enquiry
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committee has to participate along with the other members of
the enquiry committee and his role is not limited to the
Secretary or only of an administrative nature. The impugned
order passed by the school tribunal shows clear perversity and
deserves to be set aside."
19. The role of the Convener also came up for consideration
in Gurukul Shikshan Prasarak Mandal and another Vs. Sharda Ashok
Suryaganadh and another 2019 SCC OnLine Bom. 5856 , wherein in
para 41 (f) it has been held as under :
"41 (f) Member of the managing committee acting as convener
of enquiry and also part of the management in taking the
decision vitiates the enquiry process and is in breach of Rule 36
(2) (b) of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981. For incurring
disqualification, it is not necessary that bias must actually be
proved. It would be enough, under law that there is reasonable
likelihood of bias. The act of presiding officer who having his
own testimony recorded in the case indubitably would
evidence a state of mind which would disclose a considerable
bias against the delinquent. The test is not whether in fact, bias
has affected the judgment. The test always is and must be
whether a litigant could reasonably apprehend that a bias
attributable to a member might have operated against him in
the final decision of the Tribunal."
20. What has been said in Nandkumar Mahadeo Dengane
regarding the role of the Convener under Rule 36 (5) of the MEPS
Rules, has been agreed to by this Court in Bhagwan Pratisthan Vs.
Bandu Dhrupatrao Dhakne AIR OnLine 2020 Bom. 661.
21. The proposition would be equally applicable where the
convener is also the nominee of the management on the enquiry
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committee, for as a member of the Enquiry Committee, he equally
takes part in the decision making process, regarding the guilt of the
employee vis-a-vis the charges for which the enquiry is being
conducted. The contention therefore that the Convener and the
representative of the management on the Enquiry Committee in the
facts of the present case could be the same person, cannot be
sustained as has to be rejected.
22. So also though the learned Tribunal has held that there
is no bias on this count, that however, would not deter from the fact,
that the even the perception of bias, has to be avoided for the
fairness of the enquiry and the finding rendered in this regard in
view of the discussion above cannot be sustained.
23. The further contention that no objection was taken by
the employee to the appointment of Shri Mali both as a member of
the Enquiry Committee as well as the convener, based upon the
communication dated 19/08/2015 (pg.19) has to be looked into in
light of the language of the communication, in view of the
submission that the objection is not to the appointment of Shri Mali
in a dual capacity, but for his appointment itself. For the sake of
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ready reference, the communication dated 19/08/2015 (pg.19) is
quoted as under :
"izfr]
ek- lfpo rFkk eq[; dk;Zdkjh vf/kdkjh]
Jh foykljko ns'keq[k f'k{k.k izlkjd
o cgqmÌss'kh; laLFkk] cqyMk.kk-
vtZnkj %& larks"k t;flax 'ksys ¼l-f'k-½
jktho xka/kh feyhVjh Ldqy o mPp ek/;fed
fo|ky;] dksyoM] rk-ft- cqyMk.kk-
fo"k; %& pkSd'kh lferhojhy fuoM >kysY;k lnL;@fuea=dlaLFksps
dks"kk/;{k Jh fo'oukFk ;sMwth ekGh ;kaps pkSd'kh
lferhe/khy tk.khoiwoZd lgHkkxkckcr-
lanHkZ %& 1½ ek- mPp U;k;ky;] eqacbZ [kaMihB ukxiqj rlsp
ek- fiBklhu vf/kdkjh] vejkorh ;kaps
vkns'kkUo;sfu;eckg; Bjoysyh pkSd'kh lferh-
2½ vki.k fnukad 12-08-015 jksth i= jkaxkafe@pkS-la-
/813/2015 }kjs iqjfoysys pksd'kh lferhe/khy ek>s
izfruh/khckcr i= izkIr fn- 13-08-015 vUo;s-
egksn;]
vki.kkleksj fouarhiwoZd vtZ lknj dj.;kr ;srks
rks ;s.ksizek.ks]
lanHkkZadhr i= dz-2 }kjs vki.k eyk laLFksP;k dk;Zdkjh
eaMGkus BjfoysY;k pkSd'kh lferhe/khy O;oLFkkid eaMGkps lnL;@fuea=d
laLFksps dks"kk/;{k Jh fo'oukFk ;sMwth ekGh ¼ekth v/;{k rlsp lanHkkZadhr
dz-1 pkSd'khps fuea=d½ ;kaph fuoM dj.;kr vkysyh vkgs - ijarq lnj
inLFk ¼Jh fo'oukFk ;sMwth ekGh½ gs ekÖ;kcÌy cjsp dkGkiklqu vkdl o
lqM Hkkouk Bsowu vkgsr- ;kpk lokZr eksBk vuqHko eyk lanHkkZadhr pkSd'kh
dz-1 e/;s vkyk vkgs- R;keqGs Lor% pkSd'kh lferhr ijr lgHkkx ?ksowu
lsosrwu dk<wu Vkd.;kpk ekul vkgs- djhrk Jh fo'oukFk ;sMwth
ekGh ;kauk pkSd'kh lferhe/ks lgHkkx ok in ?ks.;kl izfrca/k dj.;kr ;kos
gh fouarh ts.ksd:u pkSd'kh lferhps dkedkt fui{kikrhi.ks gksbZy-
WP 3420 of 2019.odt
d`i;k ekÖ;k fouarhpk lgkuqHkqrhiqoZd fopkj Ogkok-
fn- 19-08-2015 vkiyk fo'oklq]
Bhdk.k- cqy<k.kk- Lok{kjh
larks"k t;flax 'ksys
¼l-f'k-½"
24. The language of the communication would indicate the
very appointment of Shri Vishwanath Mali as a member of the
Enquiry Committee, as well as convener (pkSd'khps fuea=d) was
objected to by the respondent no.1 and therefore, the contention
that the objection was only to the nomination of the said Vishwanath
Mali as a member of the Enquiry Committee and not to his
appointment as a convener, is clearly misplaced. The contention
therefore that in absence of a challenge to the appointment of the
said Vishwanath Mali as a convener, it has to be held that he has
waived the objection, cannot be accepted. The very fact that an
objections stood raised to the appointment of the said Vishwanath
Mali, both as a member of the enquiry committee as well as the
convener as is indicated from the language of the objection dated
19/8/2015 (pg.19), would indicate that what was required by law,
the raising of an objection, was duly done by the respondent no.1
and merely because the objection was rejected by the management
by its communication dated 5/9/2015 (pg.20) would not preclude
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the plea being raised by the petitioner. Salil Kumar Banerjee (supra),
therefore, on facts, would not be attracted for as soon as the name of
the nominee of the Management and the convener became known to
the respondent no.1 an objection in that regard was duly raised as is
indicated from the communication dated 19/08/2015 (pg.19).
25. It is therefore not a case as if the participation by the
respondent no.1 in the enquiry was without any objection and
therefore participation of the respondent no.1 in the enquiry could
be construed as a waiver of the objection, in the sense, it has been
held in Padmini Singha (supra). For the said reason also Rukhmina
Rajesh Dange (supra) would have no applicability.
26. The findings thus rendered by the learned School
Tribunal in this regard (paras 20 to 24) therefore do not call for any
interference. Writ Petition Nos.3420/2019; 3414/2019 and
3418/2019 by the Management are therefore without any merits
and are thus dismissed.
27. It is not in dispute that on an earlier occasion, after
holding a departmental enquiry the services of the petitioner were
terminated on 12/05/2014. A challenge to the said termination
before the learned School Tribunal, succeeded by the termination
being set aside by the judgment dated 21/02/2015, a further
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challenge to which before this Court in Writ Petition No.2461/2015,
resulting in direction by the order dated 28/04/2015, to the
management to conduct an enquiry afresh. A fresh enquiry was
conducted resulting in termination of the petitioners on 09/01/2016
w.e.f. 11/01/2016, again challenge to which before the learned
School Tribunal succeeded by the impugned judgment dated
16/03/2019, which has set aside the termination and directed
conduct of de novo enquiry from the stage from which it was
vitiated. Thus, twice earlier enquiry has already been held and
though opportunity was granted the management has failed to
demonstrate fairness in the conduct of the enquiry and adherence to
the Rules governing it. The impugned order now directs holding the
enquiry a third time.
28. The charges are absenteeism; negligence in awarding
marks; absence as an invigilator in NDT examination; defamation of
the society on account of making direct communication with higher
authorities; declining to increase efficiency in teaching.
29. The management in spite of two opportunities having
been availed in this regard, as indicated above, has failed to ensure
that the entire procedure as prescribed in the matter of constitution
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of the Enquiry Committee would stand the test of the relevant
Statutory provisions as applicable thereto.
30. In Head Master, Vivek Vardhini Madhyamik Vidyalaya,
Malizap Vs. Alka Namdeo Khalekar and others 2017 (1) 105
regarding repeated enquiries it has been said that after the first
opportunity for conducting a fresh enquiry is granted to an employer,
it would not mean that a fresh enquiry needs to be permitted on
every occasion when the enquiry is vitiated as this would lead to an
unending process and while the managements would reap the
benefits of conducting de novo enquiry on umpteen occasions, the
employee would have to suffer the rigours of litigation, accompanied
by unemployment, poverty and ignominy and therefore there cannot
be repeated chances. Similar view has been taken by me in Shri
Gajanan Dnayan Prakash Sanstha and others Vs. Ramdas Shaligram
Kale and others MANU/MH/2771/2021 by holding that the very fact
that a request was again made for conducting an enquiry against the
employees, the same would indicate that the intention of the
management was to get rid of the employees by any means.
31. The purpose of an enquiry is to establish the guilt of the
delinquent employee, vis-a-vis the charges framed against the
employee. The procedure established under Rules 36 and 37 of the
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MEPS Rules provides an ample opportunity to the management to
do so. While doing so, the principles of fairness and natural justice
as built in have to be scrupulously adhered to. In the instant matter,
in spite of having been afforded opportunity twice earlier, as
indicated above, the management has failed to adhere to the
principles of fairness and the provisions of the Rules as applicable in
the constitution of the Enquiry Committee and its conduct. Two
opportunities afforded to the management, in my considered
opinion, would be more than enough. If in spite of having availed
opportunity twice by conducting the enquiry, the management has
failed the test of fairness and equal opportunity, there is no reason
why a third opportunity should be granted as that would merely be a
facade of the management to get rid of the employee. The agony of
the employees in facing the enquiry and the stigma which goes with
it, also is a factor which has to be borne in mind, while directing de
novo enquiry from any stage, as doing so, would continue the same,
which would be in the teeth of the fact that in spite of availing
opportunity twice earlier, the management has failed in its attempts
to bring home the charges, tested on the anvil of fairness of the
enquiry on the parameters of the rules which governs it. The
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opportunity afforded to the management earlier by permitting
conducting of fresh enquiry, was an opportunity which should have
been availed of by the management by strictly adhering to the rules
and the principles of fairness. That having not been done, the
management cannot be granted repeated opportunities to again
conduct enquiry, from whatever stage, since the purpose of
conducting a fresh enquiry, from whatever stage cannot be for the
reason of pre-decided intention to terminate an employee, which can
be inferred from the very request made for a fresh enquiry from the
stage of Rule 36 (2) of the MEPS Rules. The management in this
case, as indicated above, twice had the opportunity, however, they
have failed to make proper utilization of the same, in view of which,
in the facts and circumstances of the present case, whatever charges
are framed, they cannot come to the aid of the management for the
purpose of seeking an enquiry afresh, from whatever stage.
32. The direction in the impugned judgments for conduct of
the enquiry from the stage of constitution of the Enquiry Committee
as per Rule 36(2) of the MEPS Rules therefore cannot be sustained
and is hereby quashed and set-aside. Writ Petition Nos.7698/2019;
7700/2019 and 7699/2019 by the employees are therefore partly
allowed. The employees/petitioners in these petitions are directed to
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be reinstated in services, with continuity of services. Insofar as back
wages are concerned, since the management has failed to prove the
charges levelled against the employees, in spite of two opportunities,
the termination will have to be held as illegal and therefore in view
of what has been held in Deepali Gundu Surwase Vs. Kranti Junior
Adhyapak Mahavidyalaya (D.Ed.) and others (2013) 10 SCC 324
considered in Gowramma C. (Dead) By Legal Representatives Vs.
Manager (Personnel), Hindustan Aeronautical Limited and another
(2022) 11 SCC 794 and the fact that the employees in their memo of
appeal before the learned School Tribunal have specifically averred
that they were not gainfully employed and such an averment also
finds place in their petitions, would be entitled to back wages.
However, considering that for the above duration they have not
rendered services, the scales will have to be balanced and the back
wages payable to the employees would thus be 50%.
33. Rule is made absolute in the above terms. Considering
the circumstances, there shall be no order as to costs.
(AVINASH G. GHAROTE, J.)
Wadkar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 30/08/2023 17:42:58
