Bombay High Court
The President / Secretary Dhanvantri ... vs Sangale Raosaheb Narayan And Another on 3 May, 2024
JUDGMENT - 3 MAY 2024
2024:BHC-AUG:9425 26.WP-7482 & 12561-2022.doc
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7482 OF 2022
1. The President/Secretary
Dhanvantari Medical &
Education Foundation, Datrange
Mala, Ahmednagar.
2. Head Master
Madhyamik Ashram Shala
Davalpuri, Tq. Parner,
Ahmednagar. ...Petitioners
~ Versus ~
1 Shri. Sangale Raosaheb Narayan
Age : 47 years, Occu.: Nil,
R/o Dhavalpur, Tal. Parner,
Dist. Ahmednagar.
2 The Assistant Commissioner,
Social Welfare Ahmednagar,
Bolhegaon Phata,
Ahmednagar.
...Respondents
WITH
WRIT PETITION NO. 12561 OF 2022
Ravsaheb Narayan Sangale
Age : 48 years, Occu.: Nil,
R/o Dhavalpuri, Tal. Parner,
Dist. Ahmednagar. ...Petitioner
~ Versus ~
1 The President/Secretary
Dhanvantari Medical & Education
Foundation, Datrange Mala,
Ahmednagar.
Page 1 of 16
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
2 Head Master
Madhyamik Ashram Shala
Davalpuri, Tq. Parner,
Ahmednagar.
3 The Assistant Commissioner,
Social Welfare Ahmednagar,
Bolhegaon Phata,
Ahmednagar.
...Respondents
A PPEARANCES :
Advocate for the petitioners in WP- Mr. A. B. Gatne
7482/2022 and for Respondent No.1
and 2 in WP-12561/2022
Advocate for the Respondent No.1 in Mr. S. S. Jadhavar
WP-7482/2022 and for petitioner in
WP-12561/2022
AGP for the Respondent No.2/State Mr. Amar V. Lavte
in WP-7482/2022 and for
Respondent No.3 in WP-12561/2022
CORAM : SHAILESH P. BRAHME, J.
Date On Which The Arguments Were Heard : 22 APRIL 2024
Date On Which The Judgment Is Pronounced : 3 MAY 2024
JUDGMENT :
. Rule. Rule is made returnable forthwith. Heard litigating
sides finally at the admission stage.
2. In both the petitions, judgment and order dated
25.04.2022 passed by the Presiding Officer, School Tribunal,
Solapur in Appeal No.27/2017 is under challenge. I would
refer to the papers of Writ Petition No.7482/2022 for the
sake of convenience. It is preferred by the management
against quashment of order of termination and direction to
conduct fresh enquiry within six months by suspending
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
respondent no.1. Writ Petition No.12561/2022 is filed by the
respondent no.1/employee against direction to conduct
fresh enquiry by suspending him, instead of granting him
reinstatement with full back-wages.
3. Respondent no.1 was working as Kamathi in Ashram
School run by the petitioner since 12.06.2006. He was
permanent employee. He was found to be indulging into
misconduct, negligence and absentees. He was issued with
statement of allegations and charge-sheet vide letter dated
29.11.2016. An enquiry committee was constituted
comprising of four members. It submitted report on
10.07.2017 to the management. Respondent no.1 was
terminated by order dated 17.07.2017 with effect from
03.09.2016. Being aggrieved, respondent no.1 preferred
appeal no.27/2017 before school tribunal. It was contested
by the petitioners. By the impugned judgment and order, it
was allowed partly on 25.04.2022.
4. It is held by the School Tribunal that there was non-
compliance of provisions of Rule 36 (2)(3) of the Maharashtra
Employees of Private Schools (Conditions of Service)
Regulation, Rules of 1981 (hereinafter referred to as Rules
for the sake of brevity). It is further held that there was
breach of Rule 33 of Rules. The procedure contemplated by
Rule 37(2)(a)(ii) of the Rules was not followed. It is further
held that no sufficient opportunity was extended to cross-
examine the witnesses. The grievance of the respondent no.1
or his representatives was not considered. It has been
recorded that there was breach of Rule 37(4) (5) and (6) of
the Rules.
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
5. It is held that there was no discussion amongst the
members of the enquiry committee before submitting the
report. It is further held that there was no recommendation
for specific action to be taken against the delinquent.
Ultimately disciplinary action was found to be in utter breach
of statutory procedure. Hence, instead of reinstating
respondent no.1, matter was remitted to the disciplinary
authority to the stage from which it was vitiated.
Management is given direction to conduct fresh enquiry by
suspending the delinquent.
6. Learned Counsel for the petitioners Mr. A.B. Gatne
makes following submissions :
i. The facts recorded by the Presiding Officer in paragraph
nos.20, 21 and 22 that certain material facts were admitted,
are perverse. Management has not admitted anything.
ii. Statement of allegation was forwarded to the
respondent no.1 by covering letter dated 29.11.2016 which
was also treated to be charge-sheet. The respondent no.1
refused to accept the same. For the second time, copy of
statement of allegations was sent to the respondent no.1
which was compliance of Rule 36 (1).
iii. The respondent no.1 was given opportunity to nominate
his member. It was not availed of.
iv. Constitution of committee of more members than
requirement of law would not be an illegality. There was
sufficient compliance of Rule 36(3).
v. Respondent no.1 was supplied with 328 documents
through Mrs. Manda Baban Pol, his representative vide letter
dated 01.04.2017.
vi. Respondent no.1 was given opportunity to cross-
examine the witnesses. Only couple of witnesses were cross-
examined and remaining witnesses though offered were not
examined.
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
vii. There was due compliance of Rule 37(2)(d) and Rule
37(4)(5) and (6).
viii. It is further submitted that report of the enquiry
committee bears specific recommendation and could not be
faulted.
ix. It is further submitted that the finding recorded by the
Tribunal that there is violation of Rule 36(3), 37(2)(a)(ii)(iii),
37(4)(5) are perverse.
x. School Tribunal committed error of jurisdiction in
appreciating material pitted against delinquent.
xi. The respondent no.1 failed to aver and prove any
prejudice caused to him due to non-compliance of statutory
procedure.
7. Learned Counsel for the petitioners seeks to rely on
judgments rendered in the matter of Haryana Financial
Corporation and Another Vs. Kailash Chandra Ahuja, (2008)
9 SCC 31, and in the matter of State of Uttar Pradesh and
Others Vs. Rajit Singh, (2022)15 SCC 254.
8. Per-contra, learned Counsel Mr. S.S. Jadhavar for
respondent no.1 opposes the submissions of the learned
Counsel for the petitioners. He repells in following manners :
i. There was no decision and subjective satisfaction by the
management as contemplated by Rule 36(1).
ii. It has been rightly held by the Tribunal that there was
non compliance of Rule 36(1)(2).
iii. The constitution of the enquiry committee was illegal.
Mrs. Manda Pol was nominated as a member but she was
being treated as representative of the delinquent.
iv. There was non-compliance of Rule 36(3), 37(1), 37(2)
(a)(ii)(iii) and 37(2)(c). It is further submitted that no
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
procedure as contemplated by Rule 37(4)(5)(6) was
followed.
v. Having quashed the termination, respondent no.1
should have been reinstated instead of keeping him under
suspension and directing fresh enquiry.
vi. The operative part denying backwages and
reinstatement is patently illegal and perverse.
9. Learned AGP Mr. Amar Lavte supports impugned
judgment.
10. I have considered rival submissions of the parties and
also gone through relevant papers of the enquiry committee,
placed on record. It is settled legal position that judicial
review of disciplinary action is confined to examine
compliance of statutory procedure, adherence to principles of
natural justice and extending of opportunity of hearing. High
Court under its jurisdiction of Articles 226 and 227 cannot
embark an enquiry as to adequacy of material or to
appreciate evidence or substitute view.
11. It reveals from record that no independent statement of
allegations and the charge-sheet were served upon the
delinquent in this matter. What is forwarded by the covering
letter dated 29.11.2016 by the management to the
delinquent was treated as statement of allegations as well as
charge-sheet. The constitution of enquiry committee was of
four members. The nominee of the delinquent was not
included in it. Mrs. Manda Pol was treated to be his
representative who cross-examined the witnesses, received
the documents and acted on his behalf. Order of termination
dated 17.07.2017 was given effect from 03.09.2016. The
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
respondent no.1 was not suspended during disciplinary action
by the management. Enquiry report was signed by four
persons.
12. Compliance Of Statutory Procedure Contemplated By
Rule 36 And 37 :
. It is contemplated by Rule 36(1) that statement of
allegations should be communicated to employee by
registered post demanding written explanation within seven
days. Rule 36(2) contemplates satisfaction of the
management after receiving explanation. There is no
independent statement of allegations prepared and served by
the management upon respondent no.1. It is the case of the
management that the communication served vide letter
dated 29.11.2016 is statement of allegations as well as
charge-sheet. The stage of serving charge-sheet comes at
later point of time.
13. Postal acknowledgments are pressed into service by
petitioners to show that the statement of allegations was
refused by the petitioner. It is further contended that again
statements of allegations was independently served on
demand. A copy of resolution passed on 08.01.2017 is
pointed out to show satisfaction of the management to
conduct enquiry.
14. Neither there are pleadings, nor evidence to show that
petitioner/management after serving statement of
allegations decided to conduct enquiry. Resolution dated
08.01.2017 indicates approval for establishment of enquiry
committee. It is referrable to stage of Rule 36(4) and not
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
Rule 36(2). It refers to Resolution dated 13.11.2016, which
is not on record. On 13.11.2016, management appears to
have decided to conduct enquiry. If that is so, then there
was no point in calling upon respondent no.1 vide letter
dated 29.11.2016 to tender explanation. It was pre-decided
to conduct enquiry. A letter dated 29.11.2016 was a farce.
Learned Counsel for the respondent no.1 has rightly
submitted that there is non-compliance of Rule 36(1) and
(2) of the Rules.
15. No separate charge-sheet has been prepared by the
management and served on the respondent no.1. Obviously
the respondent no.1 had no opportunity to tender written
explanation to charge-sheet. The stand of the management
is that statements of allegations and charge-sheet were
composite. That is in utter disregard to Rule 36(1), 37(1) and
37(2)(a)(i). Serving statement of allegations, submitting
explanation to it, serving charge-sheet and then replying the
same are distinct stages which are hushed up in the present
matter. Every stage has signifance. It provides opportunity to
deliquent to plan his defence or future line of action.
16. No material is placed on record to show that
management ever tendered list of witnesses to be examined.
On the contrary, it reveals that statements of 27 witnesses
were recorded without there being any cross-examination on
12.02.2017. Later on couple of witnesses were permitted to
be cross-examined by the representative of respondent no.1.
However, it must be noted that the respondent no.1 failed to
cross-examine other witnesses.
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
17. It transpires from the record that no independent
charge-sheet was served on the respondent no.1. So also no
documentary evidence was supplied to him. This particular
requirement carries significance because it enables
delinquent to formulate his defence, to lead evidence or to
cross-examine the witnesses. A communication dated
01.04.2017 to Mrs. Manda Pol shows supply of 328 pages.
On 29.05.2017 also documents were supplied. However, the
documents appear to have been supplied subsequently and
not immediately after tendering of charge-sheet. Rule 37(2)
(a)(iii) reads as follows :
"37. Procedure of Inquiry :
(1) ......
(a) ......
(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 document 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."
18. It is relevant as to at what stage documents have been
supplied to the delinquent. Petitioners are also obliged to
demonstrate the nature of documents which are supplied. No
endeavour is made by petitioners that relevant documents
were supplied to delinquent, before recording evidence. I
have no hesitation to hold that there is non-compliance of
Rule 37(2)(a)(iii).
19. It further reveals that Mr. Bapusaheb Rupnar
participated in enquiry being member of the committee. He is
signatory to the enquiry report also. Surprisingly he acted as
a witness of the management also. His statement was
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
recorded on 12.02.2017. A member of the enquiry
committee has to be impartial and cannot act as a witness.
There is gross violation of principles of natural justice.
20. I have already recorded that there is breach of statutory
procedure contemplated by Rule 36(1), 36(2)(a) and 37(1)
as well as 37(2)(a)(iii). Resultantly, there is violation of Rule
37(2)(c) which is as follows :
"37. Procedure of Inquiry :
(1) ......
(2) ......
(c) The Inquiry Committee shall see that every reasonable opportunity is
extended to the employee for defence of his case."
21. I have no iota of doubt that there is breach of
mandatory statutory procedure as contemplated by Rule
36(1), 36(2), 37(1) and 37(2)(a)(iii). The Tribunal has rightly
recorded finding that there is breach of statutory procedure
and no interference is called for to that extent.
22. The Composition of Enquiry Committee :
. My attention is invited to the manner in which enquiry
committee was constituted. Respondent no.1 was not
intimated names of the members to be nominated by the
management. He was called upon to convey his nominee vide
letter dated 23.12.2016. It does not spell out names of
nominees of the management. By communication dated
08.01.2017, he was informed that committee comprising of
four members was constituted. The manner in which the
committee was constituted is against Rule 36(3).
23. Enquiry committee should be of three members only as
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
per Rule 36(2)(a). It is the case of the petitioner that four
members were appointed as per the instructions of Social
Welfare Officer. The nominee of respondent no.1 was not
included in it. The composition of the enquiry committee of
more than three persons is per-se violative of Rule 36(2)(a).
It is well-settled principle that if a statute provides for a thing
to be done in a particular manner then it has to be done in
that manner and in no other manner. A useful reference can
be made to the matter of Chandra Kishor Jha Vs. Mahavir
Prasad and Others, AIR 1999 SC 3558. It is preposterious to
contend that due to instructions of Social Welfare Officer,
committee of more than three members was constituted. It
has been rightly recorded by the Tribunal that composition of
the enquiry committee is bad in law.
24. It is a case of the respondent no.1 that Mrs. Manda Pol
was being nominated by him as his member to enquiry
committee. Record reveals that she conducted cross-
examination of the witnesses of the management. She was
being treated as a representative of the respondent no.1. It
is incomprehensible as to why the respondent no.1 did not
object this. He could have insisted the disciplinary authority
or the management to treat her as his nominee. The
respondent no.1 is stopped from contending that she was his
nominee. Anyway as I have held the composition of the
enquiry committee to be illegal, status of Mrs. Manda Pol
loses its relevance.
25. Learned Counsel for the petitioner vehemently urged
that the management and persons who are at the helm of
affairs of disciplinary action, had no adequate legal
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
knowledge. They were influenced by instructions of Social
Welfare Officer. They bonafide followed a procedure of
disciplinary action. Entire procedure for disciplinary action in
a private school is relegated by relevant act and rules. There
is uniform procedure prescribed for the disciplinary action
against employees of the schools covered by relevant acts.
Ignorance of law cannot be said to be an excuse. I am not
inclined to approve the submissions of learned Counsel in this
regard.
26. It is vehemently argued by Mr. A.B. Gatne that
respondent no.1 is unable to satisfy that any prejudice is
caused to him due to procedure of disciplinary action. He
relies on judgment rendered by the Supreme Court in the
matter of Haryana Financial Corporation and Another (supra).
I have carefully gone through the principles set out in
paragraph nos. 21 to 24 and 44. In that matter, the
punishment was set aside merely on the ground of non
supply of report of enquiry officer to the delinquent. After
considering various decisions on the point of principles of
natural justice, it was concluded in paragraph no.44 which is
as follows:
"44. From the aforesaid decisions, it is clear that though supply of report of Inquiry
Officer is part and parcel of natural justice and must be furnished to the delinquent-
employee, failure to do so would not automatically result in quashing or setting aside of
the order or the order being declared null and void. For that, the delinquent employee
has to show `prejudice'. Unless he is able to show that non-supply of report of the
Inquiry Officer has resulted in prejudice or miscarriage of justice, an order of
punishment cannot be held to be vitiated. And whether prejudice had been caused to the
delinquent- employee depends upon the facts and circumstances of each case and no rule
of universal application can be laid down."
27. In the present matter fact situation is different. There is
blatant violation of statutory procedure and composition of
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
the enquiry committee is also illegal. The lapses on the part
of the petitioner/ management are so fundamental that there
is no need for the respondent no.1 to make out any case for
prejudice or miscarriage of justice. The judgment is not
applicable to the present case.
28. Sustainability of Direction of Conducting Fresh Enquiry
by Suspending Delinquent :
. The Tribunal has recorded that there is breach of
statutory procedure adopted by the petitioner and the
composition of the enquiry is bad in law. After setting aside
order of termination, directions have not been issued for
reinstatement and to pay back-wages. Learned Counsel for
the petitioner relies on the judgment of the Supreme Court in
the matter of State of Uttar Pradesh and Others (supra). The
relevant paragraph no.12 and 13 are as under :
12. In the case of Chairman Life Insurance Corporation of India and Ors. Vs. A.
Masilamani, (2013) 6 SCC 530, which was also pressed into service on behalf of the
appellants before the High Court, it is observed in paragraph 16 as under:
"16. It is a settled legal proposition, that once the court sets aside an order of
punishment, on the ground that the enquiry was not properly conducted, the court
cannot reinstate the employee. It must remit the case concerned to the disciplinary
authority for it to conduct the enquiry from the point that it stood vitiated, and
conclude the same. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727], Hiran Mayee
Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293], U.P. State Spg. Co. Ltd. v.
R.S. Pandey [(2005) 8 SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30])."
13. From the impugned judgment and order passed by the High Court, it appears that
when the aforesaid submission and the aforesaid decision was pressed into service, the
High Court has not considered the same on the ground that the other officers involved in
respect of the same incident are exonerated and/or no action is taken against them.
Applying the law laid down in the case of A. Masilamani (supra) to the facts of the
case on hand, we are of the opinion that the Tribunal as well as the High Court ought
to have remanded the matter to the Disciplinary Authority to conduct the enquiry from
the stage it stood vitiated. Therefore, the order passed by the High Court in not allowing
further proceedings from the stage it stood vitiated, i.e., after the issuance of the charge
sheet, is unsustainable.
29. In the present matter, there is non-compliance of Rule
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
36(1) and 36(2) and the composition of enquiry committee
was also not in accordance with law. Therefore, it would be in
the fitness of things to grant liberty to management to
conduct enquiry afresh from the stage of Rule 36(1). The
submission of learned Counsel for the petitioners that the
matter should have been relegated to stage of Rule 37(4)
cannot be accepted.
30. It is the prerogative of the management to conduct
enquiry denovo if the earlier conducted enquiry is found to be
against the statutory procedure or against the principles of
natural justice. The petitioners in present matter shall have
liberty to conduct enquiry denovo, if they so desired. In that
case, the respondent no.1 would be treated under
suspension by issuing appropriate order to that effect.
However, disciplinary action since inception is found to be
dehors the statutory procedure. No fault as such can be
attributable to the respondent no.1/employee. In such a
scenario, when termination is quashed, the petitioners are
bound to reinstate the respondent no.1.
31. The petitioners are to be blamed for not following due
procedure of law in conducting disciplinary action against
respondent no.1. The respondent no.1 was not under
suspension till his termination. Order of termination was
passed on 17.07.2017 which is to take effect from
03.09.2016. Such back dated termination order is
unsustainable. Thus from 17.07.2017 till pronouncement of
impugned judgment and order on 25.04.2022, he was
deprived of employment. The termination was quashed due
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
to the lapses on part of the petitioners. There is no evidence
on record that employee was in gainful employment during
this period. I find that he is entitled to 75% of the back-
wages.
32. Mr. S.S. Jadhavar relies on judgment in the matter of
Vijaysingh s/o Bhaidas Patil Vs. Dhanorkar Adhunik Gram,
2015(6) Bom.C.R.292, to buttress that not permitting
delinquent to cross- examine the witnesses would vitiate
enquiry. However, in that matter, copies of depositions were
demanded but not supply, before conducting cross-
examination. Such is not the case in the present matter. On
the contrary, in the present matter delinquent failed to
conduct cross-examination of the witnesses. The ratio cannot
be made applicable to the present matter.
33. Further reliance is placed on judgment in the matter of
Bhagwanrao Vishwanath Vyawhare & Anr. Vs. Sunita
Gopinath Palve & Anr., 2007(6) Bom.C.R. 275. In that matter,
disciplinary action was held to be vitiated resulting in
direction of reinstatement with full back-wages. It was
recorded that there were malafides in conducting enquiry
against delinquent and liberty to conduct enquiry denovo was
refused. The facts of the case in hand are different. The ratio
cannot be made applicable to the present case.
34. A sequitur of discussion is that the Presiding Officer of
the School Tribunal has rightly recorded that the termination
is bad in law but I propose to modify impugned judgment
and order by passing following order :
JUDGMENT - 3 MAY 2024
26.WP-7482 & 12561-2022.doc
ORDER
(a) Order of termination dated 17.07.2017 is quashed and
set aside.
(b) Petitioners/Management shall reinstate the respondent
no.1 and shall pay 75% of the back-wages to him.
(c) Petitioners/Management shall be at liberty to conduct
enquiry denovo from stage of Rule 36(1) of the Rules
and to conclude the same within a period of four
months from today.
(d) If petitioners/Management decide to conduct denovo
enquiry, then they shall pass order of suspension and
shall pay subsistence allowance to respondent no.1
which shall be condition precedent for conducting
further enquiry.
(e) The petitioners/Management shall take decision of
conducting denovo enquiry within a period of three
weeks failing which they shall be bound by directions of
reinstatement and back-wages.
35. Both the petitions are disposed of. Rule is discharged
accordingly.
SHAILESH P. BRAHME
JUDGE
NAJEEB//
