High Court · 2024

Legal Reasoning

wp-6868-2016.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 6868 OF 2016WITHCIVIL APPLICATION NO. 3649 OF 2024Shri. Devidas Bhanudas ToradmalAge: 50 years, Occu.: Service asAssistant Teacher Sudarshan Vidyalaya,Sangvi Patan, Tq. Ashti, Dist. Beed.R/o. At and post Bahiroba Wadi,Tq. Karjat, District Ahmednagar... Petitioner Versus1.The State of Maharashtra,Through its Secretary,School and Education Department,Mantralaya, Mumbai-32.2.The Deputy Director of Education,Aurangabad.3.The Education Officer (Secondary)Zilla Parishad, Beed.4.Shetkari Shikshan Prasarak Mandal,Ashti, Tq. Ashti, District Beed,Through its President.5.Sudarshan Vidyalaya, Sangvi PatanTq. Ashti, District Beed,Through its Headmaster .. Respondents…Mr. V. D. Sapkal, Senior Advocate i/b Mr. S. R. Sapkal, Advocate for thepetitioner.Mr. P. S. Patil, Additional Government Pleader for respondent Nos.1 to 3.Mr. S. S. Thombre, Advocate i/b Mr. B. T. Bodkhe, Advocate for respondentNos.4 and 5.…CORAM : MANGESH S. PATIL AND SHAILESH P BRAHME, JJ. RESERVED ON : 30 JULY 2024 PRONOUNCED ON : 08 AUGUST 2024[1] wp-6868-2016.odtJUDGMENT [Per Shailesh P. Brahme, J.] :- .Rule. Rule is made returnable forthwith. With the consent of thelitigating sides, heard finally.2.Petitioner is a teacher of the respondent No.4 private management,who is challenging order dated 18.04.2016 imposing penalty and furtherseeking direction to grant him benefits of service like seniority, backwagesand consequential benefits. The respondent management imposedpunishment of reducing the scale of the petitioner after conducting aninquiry. During pendency of this matter he attained age of superannuationon 31.05.2024.3.Due to supervening event of superannuation, Civil ApplicationNo.3649 if 2024 was filed for fixing present matter for final hearing and fora direction for forwarding the proposal of retiral benefits to the concerneddepartment. In response to the civil application, management submittedreply and disclosed that the proposal for retiral benefits was forwarded on12.04.2024 and necessary compliance has been made. In view ofsubsequent development, it is additionally prayed by the petitioner that ifthe petition succeeds, then revised proposal for retiral benefits beforwarded to the competent authority.4.Petitioner is a permanent employee of the respondent No.5 School[2] wp-6868-2016.odtrun by the respondent No.4 institution. He was appointed as AssistantTeacher from 15.06.1992 and his appointment was approved by therespondent NO.3 Education Officer. He was issued appointment orders on02.06.1993 and again on 13.06.1994. His appointments were approved.He was granted permanent approval from 01.07.1999. The respondentshave not disputed the initial appointment of the petitioner and theapprovals. Neither have they disputed that petitioner is a permanentemployee.5.It is case of the petitioner that the office bearers of the respondenthad exploited him and other employees by extracting money regularly.When the petitioner protested, he was transferred from earlier school ofMatkuli to the respondent No.5 School vide order dated 15.06.2015. Therewas issue in respect of permitting the petitioner to join the transferredplace. The petitioner and the respondents have conflicting stands in thisregard but those are not relevant for the decision of present controversy.The respondent management proposed disciplinary action against him. 6.To decide the controversy involved in this petition, we propose tonarrate the following facts leading to the disciplinary action against thepetitioner :-(i)Education Officer granted permission to suspend the petitionerby order dated 07.12.2015.[3] wp-6868-2016.odt(ii)Secretary addressed letter dated 11.12.2015 informing thedecision of the management of constitution of inquiry committee andapproval given by the Education Officer to suspend him.(iii)Secretary informed petitioner vide letter dated 08.01.2016that inquiry committee was constituted and simultaneously informedEducation Officer the members of the inquiry committee.(iv)Petitioner submitted application dated 19.01.2016 that orderof suspension was not served upon him and constitution of inquirycommittee was illegal.(v)Simultaneously, on the same date petitioner informed name ofMr. B. S. Khose as his nominee.(vi)Secretary informed petitioner vide letter dated 27.01.2016allegations levelled against him, replying his letter dated 23.12.2015.(vii)Petitioner was informed about the dates of hearing on coupleof occasions.(viii)Statement of allegation was forwarded by inquiry committeeto the petitioner on 24.02.2016.(ix)Inquiry Committee issued the Charge-sheet comprising of fivecharges to the petitioner vide letter dated 26.02.2016.(x)Inquiry report was prepared on 09.04.2016 disclosing inquiryon 11 charges, which was signed by two members and imposingpenalty of reducing the scale of the petitioner.(xi)Petitioner was informed decision of punishment of reduction ofscale by the Secretary and directed him to resume the duties as thesuspension was revoked due to conclusion of the inquiry. [4] wp-6868-2016.odt7.Learned Senior Counsel Mr. V. D. Sapkal appearing for the petitionersubmitted that the procedure contemplated under Rule 35 to 37 of theMaharashtra Employees of Private Schools (Conditions of Service) Rules,1981 (hereinafter referred to as the “Rules”) was not followed inconducting inquiry. No opportunity was extended to the petitioner. Thereis gross violation of statutory stages of the inquiry causing grave prejudiceto the petitioner. The constitution of the inquiry committee was illegal.Petitioner was not supplied with relevant papers with the charge sheet. Thesummary of the inquiry and the report was not furnished. The report of theinquiry is per se illegal as it was signed by two members only. Thecommittee had no jurisdiction to impose penalty. Entire disciplinary actionis vitiated. 8.Learned Counsel for the petitioner seeks to rely upon judgment inthe matter of Thapar Education Society and another Vs. Shyam MarotiBhasarkars and Ors., [1998 (2) ALL.M.R. 399], Vidya Vikas Mandal andAnr. Vs. Education Officer and Anr, [2007(2) All.M.R. 461] and Vijay SinghV. State of U.P. and Ors. [AIR 2012 SC 2840]. 9.As this is a matter of disciplinary action conducted by the privatemanagement, the contesting parties are respondent Nos.4 and 5, who havefiled affidavit-in-reply. It is contended by the management that petitionerwas suspended on 11.12.2015 with prior permission of Education Officer.[5] wp-6868-2016.odtThe petitioner was aware of the suspension. Due procedure of law wasfollowed in conducting inquiry. He was issued necessary communicationdisclosing constitution of the inquiry committee and was also served withthe charge-sheet. The constitution of inquiry committee was in accordancewith law. The petitioner appointed Mr. Khose as his representative. Thecharge sheet was served on the petitioner on 09.12.2015 and again wasforwarded to him.10.It is further contended that petitioner was informed the dates ofhearing. Charges were communicated again vide letter dated 27.01.2016.Petitioner and his nominee were present. Petitioner was extended fullopportunity of hearing. After considering the material, report wasprepared. Though there was material against petitioner for imposing majorpenalty, minor punishment was imposed vide order dated 18.04.2016. It islastly, contended that the petitioner has alternate remedy under Section 4-Aof the Maharashtra Employees of Private Schools (Conditions of Service)Regulation Act, 1977 (hereinafter referred to as the “Act”). 11.Learned Counsel Mr. S. S. Thombre appearing for the respondentNos.4 and 5 submitted that petition is liable to be dismissed as there is nochallenge to the inquiry report. He would further submit that minorpenalty was imposed as contemplated by Rule 29 by following procedure[6] wp-6868-2016.odtunder Rule 32 of the Rules. The petitioner was given opportunity to replythe charges. There is remedy under Section 4A of the Act.12.We have considered rival submissions of the parties. We are calledupon to adjudicate as to the validity of the punishment imposed upon thepetitioner. We have already narrated the sequence of events to disclose themanner in which the disciplinary action proceeded against him. 13.It reveals from record that the respondent management proposeddisciplinary action anticipating major penalty to be imposed upon thepetitioner. Following uncontroverted events would indicate intention toconduct full fledged disciplinary inquiry, which is necessary for imposing amajor penalty :-(a)Prior permission was secured from Education Officer on07.12.2015 to suspend petitioner and he was suspended.(b)Inquiry committee was constituted comprising of the memberscontemplated by Rule 36(2)(a).(c)Petitioner was permitted to nominate his representative on thecommittee. (d)Statement of allegations was given, followed by charge-sheet.(e)Hearing was conducted on various dates by apprising thepetitioner and his nominee to remain present.(f)Inquiry report was prepared by two members on 09.04.2016imposing penalty of reduction of pay scale.[7] wp-6868-2016.odt14.For imposing minor penalty procedure is prescribed by Rule 32 of theRules. Normally, it is common knowledge that when the misconduct or theallegations are not serious in nature, employer resorts to minor penalty. Theprocedure for its imposition is not as elaborate as that of imposition ofmajor penalty. What is expected under Rule 32 is to extend an opportunityto explain the lapses or the omissions, in writing. Considering theexplanation, further action needs to be taken. 15.Instead of resorting to the procedure contemplated by Rule 32respondent management preferred to resort to procedure of Rule 32 to 37.No specific lapse or omission or misconduct was ever conveyed to thepetitioner calling upon his explanation. There was no need to resort toconstitution of inquiry committee and issuance of statement ofallegations/charge sheet when a short procedure was contemplated forminor penalties. We are of the considered view that procedure for imposingminor penalty was not followed by the management. They resorted tocumbersome procedure that too halfheartedly and now a stand is beingtaken that only minor penalty was imposed. We cannot approve thisconduct of the management.16.Petitioner is imposed punishment of reduction of pay scale by theimpugned communication. The classification of the penalties is provided[8] wp-6868-2016.odtby Rule 31 of the Rules, which is as follows :-“31. Classification of penalties :-:- The penalties shall be classified into minor and majorpenalties as under:-(1) minor penalties:- i) reprimand, ii) warning, iii) censure iv) withholding of an increment for a period notexceeding one year,v) recovery from pay or such other amount as may bedue to him of the whole or part of any pecuniary losscaused to the institution by negligence or breach oforders.(2) major penalties:- i) reduction in rank, ii) termination of service”17.The punishment of reduction of pay scale does not figure either insub-rule (1) or sub-rule (2) of Rule 31. It is tried to be submitted that itwould fall under “withholding of an increment for a period not exceedingone year”. It is preposterous to accept this submission of learned Counselfor the respondent. There is a stark distinction in reduction of scale andwithholding of increment. The punishment imposed is ex facie illegal andliable to be quashed. [9] wp-6868-2016.odt18.Learned Senior Counsel would refer to judgment of Hon’ble SupremeCourt in the matter of Vijay Singh Vs. State of U.P. and Ors. [AIR 2012 SC2840]. In that matter, punishment of withholding of integrity certificatewas imposed upon the delinquent. Delinquent had preferred appeal beforein-house mechanism unsuccessfully. However, revisional authority did notinterfere. The delinquent was required to approach high Court whichresulted in dismissal. Thus, delinquent/appellant was before SupremeCourt raising ground that punishment awarded was without jurisdiction.19.Considering the punishments provided under the relevant rules,following findings are recorded by Hon’ble Supreme Court :-“8. Admittedly, the punishment imposed upon the Appellantis not provided for under Rule 4 of Rules 1991. Integrity of aperson can be withheld for sufficient reasons at the time offilling up the Annual Confidential Report. However, if thestatutory rules so prescribe it can also be withheld as apunishment. The order passed by the Disciplinary Authoritywithholding the integrity certificate as a punishment fordelinquency is without jurisdiction, not being provided underthe Rules 1991, since the same could not be termed aspunishment under the Rules. The rules do not empower theDisciplinary Authority to impose "any other" major or minorpunishment. It is a settled proposition of law that punishmentnot prescribed under the rules, as a result of disciplinaryproceedings cannot be awarded.9. This Court in State of U.P. and Ors. v. Madhav Prasad[10] wp-6868-2016.odtSharma (2011) 2 SCC 212, dealt with the aforesaid Rules1991 and after quoting Rule 4 thereof held as under:“16. We are not concerned about other rule. Theperusal of major and minor penalties prescribed inthe above Rule makes it clear that sanctioning leavewithout pay is not one of the punishmentsprescribed, though, and under what circumstancesleave has been sanctioned without pay is a differentaspect with which we are not concerned for thepresent. However, Rule 4 makes it clear thatsanction of leave without pay is not one of thepunishments prescribed. Disciplinary authority iscompetent to impose appropriate penalty fromthose provided in Rule 4 of the Rules which dealswith the major penalties and minor penalties.Denial of salary on the ground of "no work no pay"cannot be treated as a penalty in view of statutoryprovisions contained in Rule 4 defining thepenalties in clear terms.”(Emphasis added)10. The Authority has to act or purport to act inpursuance or execution or intended execution of the Statuteor Statutory Rules. (See: The Poona City MunicipalCorporation v. Dattatraya Nagesh Deodhar, AIR 1965 SC 555;The Municipal Corporation, Indore v. Niyamatulla (dead) byhis Legal representatives, AIR 1971 SC 97; J.N. Ganatra v.Morvi Municipality, Morvi, AIR 1996 SC 2520; and BorosilGlass Works Ltd. Employees Union v. D.D. Bambode and Ors.,AIR 2001 SC 378).11. The issue involved herein is required to be[11] wp-6868-2016.odtexamined from another angle also. Holding departmentalproceedings and recording a finding of guilt against anydelinquent and imposing the punishment for the same is aquasi-judicial function and not administrative one. (Vide:Bachhittar Singh v. State of Punjab and Anr., AIR 1963 SC395; Union of India v. H.C. Goel, AIR 1964 SC 364; Mohd.Yunus Khan v. State of U.P. and Ors., (2010) 10 SCC 539; andChairman-cum-Managing Director, Coal India Ltd. and Ors. v.Ananta Saha and Ors., (2011) 5 SCC 142).Imposing the punishment for a proved delinquency isregulated and controlled by the statutory rules.Therefore, while performing the quasi-judicial functions,the authority is not permitted to ignore the statutoryrules under which punishment is to be imposed. Thedisciplinary authority is bound to give strict adherenceto the said rules.Thus, the order of punishment being outside thepurview of the statutory rules is a nullity and cannot beenforced against the Appellant.”20.Ultimately Supreme Court allowed appeal holding that there was nojurisdiction to impose punishment. We find substance in the submission ofthe learned Senior Counsel advanced on the basis of ratio laid down ascited above. The punishment of reduction in scale has not been prescribedby either Rule 29 or 31 of the Rules in the present matter. It is notpermissible for the management to impose punishment which is notrecognized by governing statute.[12] wp-6868-2016.odt21.It transpires from record that respondent management adoptedstrange procedure for conducting disciplinary action against petitioner.Complete go by has been given by the management to the procedurecontemplated by Rule 36(1) and (2) of the Rules. No opportunity wasgiven to the petitioner to know the statement of allegations and to submitwritten explanation. The action commenced with communication dated11.12.2015 disclosing intention to constitute inquiry committee.Thereafter letter was issued on 08.01.2016 apprising the petitioner and theEducation Officer the names of the members of the inquiry committee. Thesequence contemplated by Rule 36 sub-rule (3) and (4) was not followed. 22.The statement of allegations is communicated vide communicationdated 24.02.2016, after constitution of the inquiry committee. Immediately,vide letter dated 26.02.2016 charge-sheet comprising of five charges wasconveyed. Though it is the contention of the management that charge-sheet was communicated vide letter dated 09.12.2015, even that was not astage to forward the charge-sheet. On or about 09.12.2015, the inquirycommittee was constituted. Pertinently, there is no material on record toindicate that relevant papers were ever forwarded to the petitioner to meetout the charges. The charge-sheet dated 26.02.2016 was communicated topetitioner by Inquiry Committee. The charges would be formulated bymanagement. The management should have served charge-sheet. We find[13] wp-6868-2016.odtgross violation of Rule 37(1), 37(2)(a)(b) of the Rules. There is nomaterial to indicate that due opportunity was given to the petitioner ascontemplated by Rule 37(2)(c) and there was proper compliance of Rule37(d).23.It is not made clear as to whether any oral evidence was adduced.The inquiry report has not been signed by nominee of the petitioner. Itsconclusion indicates that the signatories of the report imposed punishmentof the reduction of the scale. It is contemplated by Rule 37(6) that inquiryCommittee should complete the inquiry and communicate its findings onthe charges and its decision on the basis of these findings to themanagement for specific action to be taken against the delinquent.Thereafter the decision of the Inquiry Committee should be implementedby the management by issuing necessary orders within seven days from thedate of receipt of the decision of the Inquiry Committee. In the presentmatter, Inquiry Committee actually took the decision and imposed thepenalty, instead of making any recommendation to the management.Therefore, learned Counsel for the petitioner rightly submitted that InquiryCommittee was not having any jurisdiction to impose the penalty. There isgross violation of statutory procedure. 24.The punishment imposed vide order dated 18.04.2016 is in gross[14] wp-6868-2016.odtviolation of statutory procedure of Rule 36 and 37 of the Rules. Theprocedure adopted by the respondent management is unheard of. We haveno hesitation to hold that imposition of punishment is ex-facie illegal andarbitrary and liable to be quashed. When the law requires the things to bedone in a particular manner have to be performed in that manner only andnot otherwise. This settled principle of law has been violated. 25.Though petitioner has not specifically challenged the inquiry report,petition is directed against the imposition of penalty. The scheme of MEPSAct and Rules provides remedy to challenge penalty and not the inquiryreport. While examining validity of penalty, it is open for the writ Court tolook into the manner in which the disciplinary action is taken and alsoinquiry report. When Inquiry Report is the basis for imposition of thepenalty under challenge, there need not be a separate prayer for putting upa challenge to the Inquiry Report. Writ Court is not powerless to examineentire disciplinary action, albeit no challenge is put up to the inquiryreport.26.The case in hand is neither covered by clause (a) nor by clause (b) ofsub-section (1) of Section 4A of the Act. Respondent managementconducted inquiry and claims to have imposed minor penalty. Remedyunder Section 4A of the Act cannot be availed by the delinquent. Petitioner[15] wp-6868-2016.odthas no remedy under Section 4A of the Act. We reject this submission ofrespondent Nos.4 and 5.27.The upshot, writ petition deserves to be allowed. Hence, followingorder is passed :-ORDERI)Writ Petition is allowed.II)Orders/letters dated 18.04.2016 issued by the respondentNo.4 are quashed and set aside. Respondent Nos.4 and 5 shall awardconsequential benefits of seniority, difference of wages from18.04.2016 to 31.05.2024 (date of superannuation) to the petitioner.III)Respondent Nos.4 and 5 shall prepare revised proposal ofretiral benefits of the petitioner and forward it to the respondentNos.2 and 3 within a period of six weeks from today.IV)Rule is made absolute in above terms.V)The Civil Application is disposed of. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEnajeeb..[16]