Bombay High Court
Shobha Ravindra Chaudhari vs The State Of Maharashtra Through Its ... on 28 January, 2025
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2025:BHC-AUG:2241-DB
WP NO. 7703 OF 2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7703 OF 2024
Smt. Shobha Ravindra Chaudhari
Age : 55 years, Occu. : Assistant Teacher
R/o. Panzara Housing Society
At Post Kusumbe, Tal & Dist. Dhule. ..PETITIONER
VERSUS
1. The State of Maharashtra,
Through it's Principal Secretary,
Sports and Education Department,
Mantralaya, Mumbai-32.
2. The Director of Education,
Secondary and Higher Secondary Division,
Maharashtra State, Pune.
3. The Deputy Director of Education,
Nashik Division, Nashik.
4. The Education Officer (Secondary),
Zilla Parishad, Dhule
5. Social and Cultural Association,
Kusumbe, Tal. & Dist. Dhule.
Through it's President.
(Shri. Suresh Mahadu Chaudhari,
Age : 60 years, Occu. : President,
R/o. Galli No. 3, Jain Galli,
Kusumbe, Tal. & dist. Dhule.)
6. Social and Cultural Association,
Kusumbe, Tal. & Dist. Dhule.
Through it's Secretary.
(Shri. Ravindra Mahadu Chaudhari,
Age : 62 years, Occu.: Secretary,
1/11
WP NO. 7703 OF 2024
R/o. Panzara Housing Society,
At Post Kusumbe, Tal. & Dist. Dhule.)
7. Social and Cultural Association,
Kusumbe, Tal. & Dist. Dhule.
Through it's President.
(Shri. Anil Mahadu Chaudhari,
Age : 51 years, Occu.: Service (Librarian),
R/o. N.N.C. Senior College,
Kusumbe, Tal. & Dist. Dhule.)
8. Social and Cultural Association,
Kusumbe, Tal. & Dist. Dhule.
Through it's Secretary
(Smt. Dipikatai Anil Mahadu Chaudhari,
Age : 41 years, Occu.: Service,
R/o. Adarsh High School & Junior College,
Kusumbe, Tal. & Dist. Dhule.)
9. Adarsh High School and Junior College,
Kusumbe, Tal. & Dist. Dhule.
Through it's In-Charge H.M./Head Master. ..RESPONDENTS
...
Advocate for Petitioner : Mr. Ramesh I. Wakade
AGP for Respondent Nos. 1 to 4 : Ms. P. J. Bharad
Advocate for Respondent Nos. 5 & 6 : Mr. Vivek Dhage
Advocate for Respondent Nos. 7 to 9 : Mr. V. D. Hon, Senior Advocate
i/by Mr. Ashwin V. Hon
...
CORAM : MANGESH S. PATIL &
PRAFULLA S. KHUBALKAR, JJ.
RESERVED ON : 15.01.2025
PRONOUNCED ON : 28.01.2025
JUDGMENT (MANGESH S. PATIL, J.) :
. Heard. Rule. Rule made returnable forthwith.
WP NO. 7703 OF 2024
2. Learned AGP waives service of notice for respondent nos.
1 to 4, Mr. Vivek Dhage, Advocate waives service of notice for
respondent nos. 5 and 6 and Mr. V. D. Hon waives service of notice
for respondent nos. 7 to 9. At the joint request of both the sides, the
matter is heard finally at the stage of admission.
3. The petitioner is invoking the powers of this court under
Article 226 of the Constitution, and comes with following prayers:-
A) ...
B) The Hon'ble High Court held and declared that the
constitution of the enquiry committee is without any
authority void ab initio and further may kindly be quashed
and set aside the proceedings of respondent No.7-Anil
Mahadu Chaudhari as enquiry initiated against petitioner.
C) By issuing writ of mandamus, or any other appropriate writ,
order or directions in the like nature, the impugned charge
sheet dated 12.03.2024 may kindly be set aside by directing
respondents not to conduct enquiry against petitioner and
not create any hindrance to petitioner while discharging the
duties as Assistant Teacher in respondent No. 9-School.
D) By issuing writ of mandamus, or any other appropriate writ,
order or directions in the like nature, the respondents may
kindly be directed to promote the petitioner and allow her
to discharge the duties as 'Head Mistress' of Adarsha High
School, Kusumbe, Tal. & Dist. Dhule without creating any
hindrance.
4. Learned advocate Mr. Wakade would take us through the
papers and would submit that the petitioner was appointed by the
respondent - Management, by following due process against a
sanctioned post way back in the year 1995. Her appointment was
duly approved by the Education Officer. Her service record has been
WP NO. 7703 OF 2024
unblemished and at no point of time, any adverse remark was made
in the service record. He submitted that there has been a long-
standing dispute in the management. Its one faction is of respondent
nos. 5 and 6 and the other being that of respondent nos. 7 and 8.
Successive change reports filed under Section 22 of the Maharashtra
Public Trust Act, 1950 (for brevity, 'M.P.T. Act'), have been pending
with the office of the Assistant Charity Commissioner, Dhule.
5. Mr. Wakade would further submit that the regular
headmaster of the respondent - school retired on 30.06.2023. The
petitioner, being the senior most teacher, requested for promotion to
the post of headmistress as per Rule 3 of the Maharashtra Employees
of Private Schools (Conditions of Services) Rules, 1981 (for brevity,
'M.E.P.S. Rules'). Ignoring the seniority, respondent no. 7 granted
promotion to respondent no. 8, who is his wife, on 01.07.2023. He
would submit that since the petitioner was claiming promotion to the
post, respondent no. 7 started harassing her with a malicious
intention. He initiated a disciplinary enquiry on his own. She was
served with a charge-sheet. She promptly replied to the charges.
Since the enquiry was initiated mala fide while there has been a long-
standing dispute in the management, the enquiry is not sustainable in
law. In spite of her objection, respondent nos. 7 and 8 persisted with
the enquiry, having no authority in law. He would advert our
WP NO. 7703 OF 2024
attention to the reply given by the Assistant Charity Commissioner
concerned, whereby he intimated respondent nos. 7 and 8 that in the
wake of the fact that several change reports have been pending with
his office, nothing could be said as to which faction was in power. He
would submit that the faction of respondent nos. 7 and 8, is in
minority and still, unilaterally, they have set up a disciplinary enquiry,
having no power and concurrence of the managing committee.
6. Mr. Wakade would also submit that on petitioner's
grievance, respondent no. 4 - Education Officer even directed not to
proceed with the enquiry and still it has been proceeded with. In
spite of the order of this Court granting ad interim stay to the
disciplinary enquiry, respondent nos. 7 and 8 allowed it to continue.
He, therefore, submitted that the disciplinary enquiry having been
initiated mala fide, without concurrence of an approved managing
committee and in a vindictive manner, is liable to be quashed and set
aside.
7. So far as the petitioner's claim for appointment to the
post of headmistress, Mr. Wakade, learned advocate for the petitioner
would submit that in the wake of the ongoing dispute and
particularly, the request of the petitioner for appointment to the post
of headmistress on the basis of seniority, respondent no. 8 tendered
WP NO. 7703 OF 2024
her resignation from the post of headmistress on 19.08.2023, which
has been accepted by respondent no. 7 on 11.09.2023.
8. Lastly, Mr. Wakade would advert our attention to the
decision of a division bench of this Court in the matter of Sayyed
Yusuf Sayyed Moosa V/s. The State of Maharashtra and Ors. (Writ
Petition No. 9268/2017 - decided on 20-07-2018). He would submit
that in similar set of facts where there was a dispute in the
management and the change reports were pending before the office
of the Assistant Charity Commissioner, this Court had quashed and
set aside the disciplinary enquiry and had directed the change reports
to be decided.
9. Mr. Dhage, learned advocate for respondent nos. 5 and
6, one of the factions in the management, would support the
petitioner.
10. Mr. Hon, learned senior advocate for respondent nos. 7
to 9 would raise a preliminary objection regarding maintainability of
the petition on the ground that the petitioner has already participated
in the disciplinary enquiry and is now estopped from questioning its
vires. He would also submit that in light of the decision of the full
bench of this Court in the matter of Namdeo S/o. Vishnu Sase V/s.
State of Maharashtra and Others; 2023 (2) Mh.L.J. 598 , the
petitioner has the alternate remedy of preferring an appeal against
WP NO. 7703 OF 2024
the decision in the disciplinary enquiry under Section 9 of the
Maharashtra Employees of the Private Schools (Conditions of
Services) Regulation Act, 1977 (M.E.P.S. Act) and therefore, she is not
entitled to invoke the powers of this Court under Article 226 of the
Constitution.
11. Mr. Hon would further submit that according to the
Public Trust Register (PTR), name of respondent no. 7 is appearing
and it cannot be said that he is not in the power and authority as a
secretary of the trust and to direct the disciplinary enquiry.
12. We have considered the rival submission and perused the
papers.
13. Taking up the issue regarding maintainability of the writ
petition, in our considered view, merely because the petitioner
replied to the notice and even participated in the disciplinary enquiry,
will not estop her from questioning its sustainability, particularly in
light of the fact that, admittedly, there has been a long-standing
dispute in the management and several change reports have been
pending adjudication in the office of the Assistant Charity
Commissioner. It would be a matter of authority of the trustees like
respondent no. 7, to initiate the disciplinary enquiry. Even there is
nothing on record, placed by respondent nos. 7 and 8, to
demonstrate that the issue regarding initiation of the disciplinary
WP NO. 7703 OF 2024
enquiry was ever taken to the managing committee much less duly
authorizing and approving initiation of the enquiry. Therefore, it
cannot be said that merely by participating in the enquiry, the
petitioner has waived her right to question its vires.
14. As far as availability of alternate and efficacious remedy
in the form of an appeal under Section 9 of the M.E.P.S Act, 1977 is
concerned, that remedy would be available to an employee if and
when she is met with some punishment. When admittedly, the
disciplinary enquiry against the petitioner is still to reach to that
stage, she cannot prefer an appeal under that provision. Therefore,
even this line of submission of Mr. Hon is not legally sustainable.
15. As regards the merits are concerned, obviously this Court
will have its own limitation in undertaking any scrutiny about
sustainability of the charges, more so, when the disciplinary enquiry
is still to be concluded. Precisely for this reason, in our considered
view, no objective scrutiny about sustainability of the charges can be
undertaken.
16. We are merely concerned with the authority of
respondent - Management, to initiate the disciplinary enquiry,
particularly in light of the fact that admittedly, there has been a
dispute in the management and there is nothing on the record to
WP NO. 7703 OF 2024
conclusively decide as to which of the factions is legally holding the
management.
17. In this regard, the communication dated 14.06.2024 of
the office of Assistant Charity Commissioner at Dhule, addressed to
the Education Officer is material. Apart from the proceedings under
Sections 41-A and 51 of the M.P.T. Act, as many as eleven (11)
change reports right from the years 2012-2017 filed by either side,
have been pending adjudication. This communication expressly
mentions that in light of the pendency of numerous change reports,
even the Assistant Charity Commissioner was unable to make any
comment as to which of the factions was holding the management of
the trust. It is, therefore, evident that even the office of the Charity
Commissioner is unable to inform about the authorized managing
committee.
18. Conspicuously, though the affidavit-in-reply of
respondent nos. 7 to 9 mentions that they are controlling the
management, it has not been mentioned as to which of the change
reports filed by them have been accepted by the Assistant Charity
Commissioner. Even it is conspicuously silent about the decision to
initiate the disciplinary enquiry against the petitioner was ever taken
to the managing committee and it resolved to initiate it. This makes it
evident that even the inquiry has been initiated against the petitioner
WP NO. 7703 OF 2024
without taking up the agenda to the managing committee leading to
some resolution.
19. Exactly in similar fact situation, when several change
reports were pending with the office of the Charity Commissioner
and still the disciplinary enquiry was initiated by one of the factions,
in the matter of Sayyed Yusuf Sayyed Moosa (supra) a division bench
of this Court quashed and set it aside on the ground that in absence
of any authorized managing committee, no such enquiry could have
been initiated.
20. Under these circumstances, when admittedly, no change
report has been accepted by the Assistant Charity Commissioner, it
cannot be said that respondent nos. 7 and 8 could have initiated the
disciplinary enquiry in a lopsided manner. It is liable to be quashed
and set aside.
21. So far as the claim of the petitioner to the post of
headmistress is concerned, the aforementioned reasons would apply
with equal vehemence, inasmuch as, in the absence of any authorized
management, even no writ of mandamus can be issued directing the
management to consider her case for grant of promotion to the post
of headmistress, being the senior most teacher.
WP NO. 7703 OF 2024
22. In the light of above, the Writ Petition is partly allowed.
23. The impugned disciplinary enquiry is quashed and set
aside.
24. The rival factions shall approach the Assistant Charity
Commissioner and may solicit order for provisional acceptance of a
change report in the light of Section 22(2) proviso. It is clarified that
this order shall not be treated as exoneration of the petitioner from
the charges/imputation.
25. Rule is made absolute in above terms.
[ PRAFULLA S. KHUBALKAR ] [ MANGESH S. PATIL ]
JUDGE JUDGE
jhs/-
