Bombay High Court
Rayat Shikshan Sanstha Through ... vs Gajanan Krishna Swami And Anr on 14 December, 2023
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2023:BHC-AS:38284
Neeta Sawant 1/9 FC- 904-WP-6764-2018.docx
14 December 2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6764 OF 2018
1. Rayat Shikshan Sanstha ...Petitioner
V/s.
1. Gajanan Krishna Swami ...Respondent
_________
Mr. Milind Deshmukh, for the Petitioner.
Mr. S.A. Rajeshirke, for Respondent No.1.
Mr. C.D. Mali, AGP for Respondent No.2.
__________
CORAM : SANDEEP V. MARNE, J.
DATED : 14 DECEMBER 2023.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of
the learned Counsel for the parties, Petition is taken up for final disposal.
2. By the present petition, the Petitioner-Management
challenges the Judgment and order dated 27 March 2018, passed by the
Presiding Officer School Tribunal, Kolhapur in Appeal No. 7 of 2015.
The School Tribunal has allowed the Appeal partly and has set aside the
termination Order dated 23 January 2015 and has remanded enquiry for
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being conducted afresh from the stage where the illegalities had crept in.
The Management is directed to reinstate the Respondent-employee
notionally during the course of fresh inquiry and he is directed to be
kept under suspension with further directions to pay subsistence
allowance.
3. Briefly stated, the facts of the case are that Petitioner No.1 is
a Society registered under the provisions of the Societies Registration
Act, 1860 and also a Trust registered under the provisions of
Maharashtra Public Trust Act, 1950. It runs several High Schools and
Colleges. Shri. Shivaji High School, Tulas, Taluka-Vengurla, District-
Sindhudurg is one of the Schools run and managed by Petitioner-Trust.
Respondent No.1 came to be appointed in Petitioner No.2-School on 31
August 1998. A complaint was made against the Respondent-Employee
of misbehavior with a girl student in the 10 Standard. After service of the
statement of allegations, the Management decided to conduct the
enquiry and constituted Enquiry Committee consisting of Convener and
State Awardee Teacher. The Respondent-Employee nominated his
Defense Nominee on the Enquiry Committee. After conducting the
Enquiry, a Report was submitted by the Enquiry Committee by majority
of 2 : 1, by which the charges levelled against the Respondent-Employee
were held to be proved. Based on the recommendations of the Enquiry
Committee, the Management proceeded to terminate the services of the
Respondent-Employee by Order dated 23 January 2015. The
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Respondent approached the School Tribunal, Kolhapur, by filing Appeal
No.07 of 2015. The School Tribunal has proceeded to partly allow the
Appeal filed by the Respondent-Employee and has set aside the
termination Order dated 23 January 2015. The enquiry has been
remanded for being conducted afresh from the stage of commission of
illegalities. The Management is directed to reinstate the Respondent in
service on notional basis with further directions to keep him under
suspension and to pay subsistence allowance till the conclusion of the
Enquiry. The Petitioner-Management is aggrieved by Tribunal's
decision dated 27 March 2018 and has filed the present petition.
4. Mr. Deshmukh, the learned counsel would appear on behalf
of the Petitioners and submit that the solitary ground on the basis of
which the Tribunal has partly decided to allow the Appeal, is failure on
the part of the Defence Nominee of the Respondent-Employee to sign
the Enquiry Report. He would take me through the Enquiry Report to
demonstrate that Shri. Subhash Dnyanoba Jadhav has signed on each
page of the Enquiry Report, except the conclusion portion under the
heading 'Decision'. Mr. Deshmukh would submit that serious charge of
misbehaviour with a girl student studying in the School has been proved
against the Respondent-Employee and therefore the Tribunal ought not
to have set aside the termination order based on technicalities. He would
submit that the enquiry was conducted after affording full opportunity
of defence to the Respondent-employee and therefore the order passed
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by the School Tribunal setting aside termination order cannot be
sustained. He would pray for setting aside the order passed by the
School Tribunal.
5. Per-contra, Mr. Rajeshirke the learned counsel appearing for
Respondent No.1 would oppose the petition and support the Order
passed by the Tribunal. He would submit that the order passed by the
Tribunal merely envisages remand of the enquiry and that no prejudice
would be caused if the enquiry is conducted afresh by grant of
opportunity of defence to the respondent. He would therefore submit
that this Court would not interfere in the order of remand passed by the
School Tribunal. Mr. Rajeshirke, would justify the order of remand of
the School Tribunal by inviting my attention to the report of the
Enquiry Committee. According to him, the entire report of the Enquiry
Committee was prepared at the behest of the Management and
Respondent No.1's Defense Nominee was called upon to sign the same.
That he rightly did not sign the same. Shri. Balasaheb Pandurang
Dombale was not given an opportunity to submit a separate report with
reasons for not agreeing with the findings of the other two members of
the Enquiry Committee. The Tribunal has rightly held that an
opportunity needs to be given to the Defense Nominee to record his
reasons for disagreement with the findings of the other members of the
Enquiry Committee.
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6. Mr. Rajeshirke, would further submit that the constitution of
the Enquiry Committee, was illegal in that in addition to the Convener,
State Awardee Teacher and Defence Nominee, Shri. Subhash Dnyanoba
Jadhav participated in the Enquiry proceedings as the representative of
the Management. He would further submit that the report of the
Enquiry Committee is however not signed by Shri. Subhash Dnyanoba
Jadhav, who admittedly acted as a part of the enquiry. He would submit
that since the constitution of the Enquiry Committee itself is illegal, the
order of remand passed by the Tribunal need not be disturbed. He
would pray for dismissal of their petition.
7. I have also heard Mr. Mali, the learned AGP for State.
8. I have considered the submissions canvassed by the learned
counsel appearing for the parties. The Respondent-employee
undoubtedly faced serious allegation. In the enquiry, two charges were
levelled against him. In the first charge, it was alleged that on 26
November 2013 when a girl student studying in the 10th Standard had
visited the school for extra classes, Respondent No.1 caller her in the 8 th
standard classroom and misbehaved with her. In the second charge, it
was alleged that reputation of the School- Management was maligned on
account of publication of news in the newspapers about misbehavior by
Respondent No.1 with a girl student of the School.
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9. Perusal of the order passed by the School Tribunal would
indicate that a specific finding has been recorded in para-26 of the
judgment that the Enquiry Committee was properly constituted.
Therefore, the contention sought to be raised now that four members
acted as a part of the Enquiry Committee or that the constitution of the
Enquiry Committee was erroneous, is totally misleading. Mr. Subhash
Dnyanoba Jadhav has acted merely as a Presenting Officer on behalf of
the Management, and he was not part of the Enquiry Committee. He
has not participated in the decision-making process and is not a
signatory to the Enquiry Committee Report. Therefore, the contention
about improper constitution of Enquiry Committee deserves no
consideration and is therefore rejected outrightly.
10. The solitary ground based on which the School Tribunal has
proceeded to set aside the termination order is failure on the part of the
Defence Nominee of Respondent No.1 to sign the report of the Enquiry
Committee. In this regard, the relevant findings recorded by the School
Tribunal in para-26 of its Order read this :
26. Thus inquiry committee was properly constituted and the Appellant
submitted the name of his representative but Appellant was not properly
represented as Appellant's representative failed to submit his report.
Representative of Appellant has not submitted his report assenting or
dissenting. Very purpose of 3 members committee is frustrated. The
Appellant contended that convenor Shri. Rajendra Shankarrao Salunkhe
and Shri.R.B.Darekar awardee teacher acted as prosecutors and judge in
inquiry committee of the appellant. Thus when allegation of bias was
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made report of report of representative of Appellant becomes very
important. One chance must be given to representative of Appellant why
he hasn't signed report or submitted his separate report. Every member is
independent, hence he must be informed that his separate verdict may be
accept, however it must be given on same date. It is not clear whether
such information was given to him or not ? It is not clear when he signed
other pages of report why he didn't sign final verdict.
10. Perusal of the report of the Enquiry Committee would
indicate that the Defence Nominee, Balasaheb Pandurang Dombale has
signed on each page of the Enquiry Committee Report, except the last
page under the heading 'Decision'. Furthermore, after discussing each
Article of charge, the Enquiry Committee has recorded opinion of each
of the Members of the Committee about that charge. In respect of
Charge No.1, the Convenor, as well as the State Awardee Teacher agreed
with the finding that Charge No.1 was proved. The Defence Nominee
did not agree with the said conclusion and there is a specific statement to
that effect with regard to the finding on Charge No.1, which is signed by
the Defence Nominee. Similarly, is the case in respect of Charge No.2
where the Defence Nominee has put his signature below the finding that
he did not agree with the finding of proof of Charge No.2. It is
therefore cannot be contended, by any stretch of imagination, that the
Enquiry Committee Report is prepared at the behest of the Management
or that the Defense Nominee was merely asked to sign the same. The
report on the other hand, clearly indicates that the discussion has taken
place between the three members before transcribing the Report and the
disagreement by the Defence Nominee is to both the Articles of Charge
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has specifically been incorporated in the Enquiry Committee Report and
the signature of the Defence Nominee about his disagreement is
specifically obtained thereon.
11. After observing that the Defence Nominee did not agree
with the finding of proof of both the Articles of Charge, the other two
Members proceeded to declare the Report by majority of 2 : 1. In fact,
there is an endorsement at the foot of the Report that Balasaheb
Pandurang Dombale (Defence Nominee) was requested to sign the
report and to record his specific finding/opinion and that he refused to
do so and left the Enquiry Committee Meeting at 3:20 p.m. In my view,
such an action on the part of the Defence nominee would noy inure to
the benefit of Respondent-employee. The Defense Nominee had
already disagreed with the findings of proof with regard to both the
Articles of Charge. If he desired to record any reasons for his
disagreement, he was free to do so and was infact called upon to do so.
He however, refused to record his independent reasons and opinion and
chose to abruptly leave the Enquiry Committee Meeting. For such action
of the Defence Nominee, the Respondent-Employee cannot be rewarded
by setting aside the penalty order. Thus, the finding recorded by the
School Tribunal about the irregularity of the enquiry on account of
failure of Shri. Subhash Dnayanoba Jadhav to sign the last page of the
Report are totally perverse and unsustainable.
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12. There is sufficient evidence on record to hold both the
articles of charge to be proved against Respondent No.1. Serious charge
of misbehavior with a girl student in the School has been proved against
Respondent No.1. The School Tribunal should have been little more
sensitive about the nature of allegations found to be proved against
Respondent No.1-Employee and ought to have avoided hyper technical
approach while deciding the Appeal filed by Respondent No.1. There is
sufficient evidence on record to prove the charges. The penalty imposed
on Respondent No.1 is commensurate with the misconduct alleged.
There was thus no valid reason for the Tribunal to interfere in the order
of termination of Respondent No.1.
13. The School Tribunal's order is this indefensible and liable to be set
aside. The petition accordingly succeeds. The Judgment and Order
dated 27 March 2018, passed by the Presiding Officer, School Tribunal,
Kolhapur, is set aside. The Writ Petition is accordingly allowed. Rule is
made absolute. There shall be no order as to costs.
SANDEEP V. MARNE, J.
