Bombay High Court
Mamta Bahuuddeshiya Shikshan ... vs Rekha Gautam Rangari And Others on 22 February, 2023
Bench: Avinash G. Gharote
(1) 909wp1074.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 1074 OF 2023
Mamta Bahuuddeshiya Shikshan Sanstha and ors__ Vs. ___Rekha Gautam Rangari
and ors
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. S.P.Bhandarkar Advocate for petitioners
Mr. V.N.Patre, Advocate for Respondent No.1/Caveator
CORAM : AVINASH G. GHAROTE, J.
DATE : 22/02/2023
1] Heard Mr. Bhandarkar, learned counsel
for the petitioners.
2] The petition challenges the judgment of
the School Tribunal dated 09.12.2022, allowing the
appeal, setting aside termination and directing
payment of full back-wages and continuity of service
(page 672). The basic ground as is spelt out is the
vitiation of the enquiry, as the witness No.2 Neha
Kosare was not permitted to be examined. The
record of the enquiry as produced with the petition
indicates that on 21.11.2019 when the said witness
Neha Kosare was produced for examination, the
Committee refused to examine her on the ground
that she had been terminated after holding enquiry.
Surprisingly, though no examination-in-chief was
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recorded, the record indicates that she was cross-
examined on 28.11.2019 (page 468). This clearly
indicates the manner in which the enquiry has been
conducted.
3] The learned counsel for the petitioner in
order to explain the above position, seeks pass over,
considering which, list the matter at 2:30 P.M.
Later on, at 2.30 p.m.
4] Mr. Bhandarkar, learned counsel for the
petitioner submits that the witness Neha Kosare in
fact was cross-examined, which is reflected from
record at pg.468. He therefore submits that the
ground on which the termination has been set aside
holding that the enquiry has been vitiated is not
made out.
5] Mr. Patre, learned counsel for respondent
no.1 supporting the impugned judgment, points out
that the witness no.2 for the respondent no.1 was
one Rehman Mehmood Khan and when he was
sought to be examined, the Committee did not
permit him to be examined (pg.420), which
indicates the attitude of the Committee, as as result
of which the enquiry stands vitiated.
(3) 909wp1074.23
6] The respondent No.1 was appointed as a
teacher by the order dated 1.7.2000 and thereafter
has continuously worked with the petitioners. On
19.9.2018, the employees of the school made a
complaint to the Police Commissioner regarding
harassment caused by the management. On
3.10.2018 the head-mistress issued show cause
notice to respondent no.1, which was replied by
denying the charges levelled against her. Various
show cause notices were thereafter issued to the
respondent no.1 and it was decided to conduct an
enquiry against the respondent no.1, as a result of
which the statement of allegations was issued to the
respondent no.1 on 4.2.2019, to which a reply was
submitted by her on 12.2.2019. On 18.2.2019, the
petitioner no.3 issued a letter to the employees of
the school including the respondent no.1, stating
that the employees had started working against the
management, to which the respondent no.1 replied
on 19.2.2019, stating that a complaint was made to
the management as well as the Education
Department.
7] The Enquiry Committee was thereafter
constituted and the respondent no.1 had appointed
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her nominee as Shri Kamaldas Laxman Deshpande,
vide her letter dated 25.12.2019. Charge sheet was
issued on 17.3.2019. On 20.3.2019 explanation was
submitted by respondent no.1. On 8.4.2019 first
meeting was held by the Enquiry Committee and the
witnesses of management were examined. During
the course of the enquiry, the respondent no.1 had
submitted a list of 11 witnesses to be examined on
her behalf (pg.182).
8] The entire record of the enquiry as
produced on record by the petitioners indicates that
when witness no. 2 - Rehman Mehmood Khan was
sought to be examined by the respondent no.1 - the
Enquiry Committee refused to record his evidence
on the ground that he had no relation with the
school (pg.420). When the evidence of witness no. 3
Neha Ashwin Kosare was sought to be recorded, the
Enqiry Committee again refused to record her
evidence, on the ground that she was terminated
from the school and therefore, there is no necessity
for recording her evidence (page. 426). This order is
dated 21.11.2019.
9] Though it is contended that subsequently
Neha Kosare, the witness no.3, by her
(5) 909wp1074.23
communication dated 27.11.2019 (pg.472) had
submitted her written evidence (pages 473 to 478)
and is said to have been cross examined on
28.11.2019, the record does not indicate that she
was at any point of time permitted to be examined
by the respondent no.1 or her statement which was
given along with her communication dated
27.11.2019 was accepted by the Enquiry Committee
as her examination-in-chief. The endorsement on
page 472, is only in respect of receipt of the
documents annexed with the communication dated
27.11.2019 and does not amount to treating the
documents as her examination-in-chief, as there is
no endorsement in the proceedings in that regard
(pg. 468), even prior to the commencement of her
cross examination. This clearly indicates the manner
in which the enquiry has been conducted. The
respondent no.1 who was to answer the charges
under the provisions of Rule 37(2)(d)(ii) and (iii) of
the MEPS Rules, was clearly entitled to examine the
witnesses, which has been cited by her in the list of
witnesses submitted to the Enquiry Committee
(pg. 182). That opportunity however does not
appear to have been afforded to her, as is indicated
from the above position, which is gleaned from the
(6) 909wp1074.23
record of the Enquiry Committee as filed with the
petition.
10] That being the situation, the learned
School Tribunal was clearly justified in holding that
the enquiry was vitiated on account of opportunity
not having been granted to the respondent no.1 to
examine her witnesses. I therefore do not see any
reason to interfere in the impugned judgment passed
by the learned School Tribunal. The petition is
without any merits and is therefore dismissed. No
costs.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:23.02.2023 19:07
