Writ Petition No. 1551 of 2007 · Bombay High Court

4TH AUGUST, 2010 DATE OF PRONOUNCING THE JUDGMENT : 11TH AUGUST, 2010 (2) WP. 1551.2007 JUDGMENT :-

Challenge in this Petition is to judgment and order rendered by learned Presiding Officer of the School Tribunal, Aurangabad, in Appeal no. 44 of

2005. By that judgment, the School Tribunal quashed order of compulsory retirement dated 6.7.2005 and directed reinstatement of the respondent no.1 to his original post as Assistant Teacher in the petitioner's school.

The background facts giving rise to the appeal before the School Tribunal may be stated in the following way:

The respondent no.1 was working as duly appointed full time teacher in the Junior College run by the petitioners. He was appointed on 8.12.1993 as a Teacher in Vocational stream for a course "MREDA" and worked as such upto period of his compulsory retirement vide order dated 6.7.2005. There were various complaints lodged against him, for alleged offences of cheating by some of the persons, (3) WP. 1551.2007 including V.P. Kulkarni and Shri B.P. Jadhav. It was alleged that he had fabricated certain appointment letters on the letterhead of the petitioners' Education Society. He allegedly had forged signatures of the Joint Secretary of the petitioners' Education Society. It was further alleged that he had dishonestly obtained unlawful amounts from one

Dilip Shamrao Kumavat and one Smt. Alkabai Shantaram Wahul by giving false promises and by making false representation that said Dilip Kumavat and daughter of Smt. Alkabai Wahul would be given employment as Peons in the petitioners' Educational Institution. There were various crimes registered against him for the offences of cheating and forgery of documents etc. He was suspended on 16.9.2004 in contemplation of the domestic enquiry. He was subsequently served with a chargesheet along with statement of imputations of the charges, list of witnesses and other relevant documents. An enquiry committee was constituted by the petitioners. The respondent no.1 filed his written statement. The enquiry committee came to the conclusion that misconduct of the respondent no.1 was duly proved. He was served with show cause notice (4) WP. 1551.2007 along with substance of the findings recorded by the enquiry committee. The respondent no.1 gave an elaborate reply to the show cause notice. Not only that he denied the charges but alleged that he was deprived of necessary opportunity to defend himself in the domestic enquiry. He alleged that he was subjected to victimization. The petitioners, however, found that misconduct of the respondent no.1 was of serious nature and warranted his removal from the service by way of compulsory retirement. Therefore, penalty of compulsory retirement was awarded to him. He challenged legality of the enquiry procedure and penalty imposed on him by filing the Appeal. The School Tribunal allowed his Appeal vide the impugned judgment and order.

Mr. P.M. Shah, learned Senior Counsel would submit that the words "compulsory retirement" were improperly used while awarding the penalty though, in effect, the penalty of dismissal has been awarded to the respondent no.1. He would submit that the School Tribunal failed to consider the fact that all alone the respondent no.1 had properly understood the (5) WP. 1551.2007 charges levelled against him. He contended that though there was no prejudice caused to the respondent no.1, yet the School Tribunal un-necessarily came to the conclusion that the charge was vague and improper. He argued that the School Tribunal committed patent error while holding that the petitioners did not follow the procedure laid down in Rule 36(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short "The M.E.P.S. Rules"). He contended that the School Tribunal erred while interferring with the findings of the duly constituted enquiry committee. He argued that when such findings are rendered on basis of available material then, the Tribunal has no jurisdiction to interfere with the finding of guilt of the delinquent-employee. He argued further that reinstatement of the respondent no.1 with full back wages is bad in law, and, therefore, the impugned judgment and order deserve interference. He relied upon some of the authorities to which I shall refer in due course. The learned counsel for the respondent no.1, Mr. Dhage V.V. supported the impugned judgment. (6) WP. 1551.2007

Before I proceed to deal with the rival submissions, it is important to notice that the School Tribunal has recorded a categorical finding that the constitution of the enquiry committee is legal and proper. The School Tribunal further held that due procedure was adopted by the enquiry committee while conducting the domestic enquiry against the respondent no.1-delinquent. The fact that certain criminal offences were registered against the respondent no.1 on strength of allegations that he had cheated some persons, including Shri V.P. Kulkarni, B.P. Jadhav, is not in dispute. According to the respondent no.1, the charges of cheating and fabrication of the record were unfounded and false. It appears that one of such complainant, namely, Dilip Kumavat did not appear before the enquiry committe whereas another complainant viz. Smt. Alkabai Shantaram Wahul did not support her complaint. The enquiry committee found that she was won over by the respondent no.1- delinquent. There were, however, documents including copies of the F.I.R.s and versions of Shri V.P. (7) WP. 1551.2007 Kulkarni and B.P. Jadhav in support of the charges levelled against the respondent no.1. Based upon such material, available from the record, the enquiry committee rendered its finding against the respondent no.1-delinquent.

The School Tribunal came to the conclusion that procedure contemplated under Rule 36(1) of the M.E.P.S. Rules was not properly followed by the enquiry committee. The School Tribunal held that the Joint Secretary of the petitioners issued the same chargesheet on two occasions. Firstly, the respondent no.1 was served with copy of chargesheet dated 8.10.2004 but he was not called upon to file his written explanation within the period of 7 days as required under the Rules. He was again served with another copy of the chargesheet dated 2.12.2004. The Joint Secretary of the petitioners issued a letter dated 29.10.2005 to the respondent no.1- delinquent, whereby his explanation was called for. The question is whether the procedural defect could be regarded so vital as to vitiate the enquiry proceedings. The School Tribunal further held that (8) WP. 1551.2007 the chargesheet served on the respondent no.1- delinquent indicated vague charges in respect of the alleged act of cheating committed by the respondent no.1-delinquent, particularly, in relation to Shri V.P. Kulkarni and Shri B.P.Jadhav. The School Tribunal, therefore, held that due opportunity was not made available to the respondent no.1-delinquent and as such the enquiry proceedings are vitiated.

Perusal of the impugned judgment reveals that the School Tribunal proceeded on an assumption that the respondent no.1-delinquent was prejudiced in making out his defence. Nowhere, the respondent no.1-delinquent alleged that he was prejudiced due to vagueness of the charges levelled against him. It appears that along with the chargesheet there was statement of imputation which elaborately explained the alleged misconduct of the respondent no.1- delinquent. The respondent no.1-delinquent acknowledged receipt of the chargesheet and statement of imputation vide his letter dated 21.10.2004 (Exh. "H" to the Petition). In letter dated 21.10.2004, the respondent no.1-delinquent did not ventilate any (9) WP. 1551.2007 grievance about any specific nature of the charges levelled against him. The charges were well understood by him. His reply to the charges would show that he had clearly understood as to what was being alleged against him in respect of the alleged cheating and fabrication of documents.

In "Omprakash Mann Vs. Director of Education (Basic) and others (2006) 7 S.C.C. 558", the Apex Court held that where no ground was taken by the delinquent that the chargesheet was vague and he was unable to give effective reply to the charges, he would be estopped from raising such issue before the civil Court. It is further held that non-observance of principles of natural justice must be shown to have caused prejudice to the person concerned. The contention of the petitioner Omprakash Mann, in the given case, was that a copy of the enquiry report was not furnished to him, and, therefore, he was prejudiced. The Apex Court observed : "8. The second ground that no copy of the enquiry report had been furnished to the appellant thereby violating the principle of (10) WP. 1551.2007 natural justice has also no substance. On this ground the learned Judge recorded a finding that the appellant was unable to show as to how he has been prejudiced for non-furnishing of the copy of the report. We agree with the finding of the learned Judge of the High Court. " Perusal of the above observations go to show that unless serious prejudice is caused to the delinquent, mere technical errors or non-observance of the procedural formalities cannot be regarded as sufficient ground to interfere with the findings of the facts as recorded by the enquiry committee.

On careful reading of the impugned judgment, it is manifestly clear that the School Tribunal re- appreciated the entire evidence and findings of the enquiry committee likewise it was sitting in appeal over the findings. The Tribunal again re-appreciated the evidence while exercising powers of judicial review. Though, the nature of challenge before the School Tribunal is by way of appeal under section 9(2) of the M.E.P.S. Act (Conditions of Service) (11) WP. 1551.2007 Regulations Act, 1977 i.e. "The M.E.P.S. Act", yet the powers are akin to judicial review against the administrative action. The Tribunal entered into the thicket of the fact finding process. The Apex Court in "State of Tamilnadu Vs. S. Subramaniam" (1996) 7 S.C.C. 509, observed : "11. The only question is : Whether the Tribunal was right in its conclusion to appreciate the evidence and to reach its own finding that the charge has not been proved.

At this juncture, it is significant to notice that constitution of the enquiry committee was found to be proper. The Tribunal also held that the enquiry committee conducted enquiry in fair manner. Though, same communication was sent to the respondent no.1-delinquent on two occasions yet it does not mean (13) WP. 1551.2007 that he was prejudiced. For, he took the first communication as notice duly issued under Rule 36(1). He had filed his written explanation after service of the notice. Rule 36(1) reads as follows:- "36. Inquiry Committee: (1) If an employee is allegedly found to be guilty on any of the grounds specified in sub-rule (5) of rule 28 and the Management decides to hold an inquiry, it shall do so through a properly constituted Inquiry Committee. Such a committee shall conduct an inquiry only in such cases where major penalties are to be inflicted. The Chief Executive Officer authorised by the Management in this behalf (and in the case of an inquiry against the Head who is also the Chief Executive Officer, the President of the Management) shall communicate to the employee or the Head concerned by registered post acknowledgement due the allegations and demand from his a written explanation within seven days from the date of receipt of the statement of allegations. "

Perusal of the above Rule reveals that it is directory in nature. Unless there is reliable evidence to infer that the delinquent-employee has (14) WP. 1551.2007 been seriously prejudiced due to non-observance of the Rule pertaining to issuance of communication to the employee by registered postal acknowledgment calling for his written explanation within seven days, is not issued, it cannot be inferred that the charges are vitiated. The respondent no.1- delinquent, in fact, participated during course of the enquiry. There was oral evidence of Shri Bhatta Pundalik Jadhav and V.P. Kulkarni in respect of the charges regarding alleged cheating and fabrication of documents prepared by the respondent no.1-employee. The School Tribunal did not take into account the evidence of the said witnesses for the reason that the charge regarding such offence of cheating was vague. The School Tribunal observed: "On perusal of the charge No.2, framed against the appellant, it has been only mentioned therein that the management received complaints from Shri Bhatta Pundalik Jadhav and Shri Vilas Prabhakar Kulkarni alleging therein that they have been cheated by the appellant.

It is manifestly clear that the School Tribunal did not find evidence of the above two witnesses insufficient or un-creditworthy. Their versions were not considered at all due to the vagueness of the charges. As stated before, when the respondent no.1-delinquent employee himself did not raise any such plea during the enquiry proceedings, the Tribunal could not have entertained such plea at the appellate stage as has been observed in "Omprakash Mann" (supra).

Mr. V.V. Dhage pointed out that the respondent no.1-delinquent has been acquitted of the charges levelled against him by the Criminal Court in the criminal case bearing R.C.C. 177 of 2002. He has placed on record copy of the judgment of acquittal dated 27.2.2009 rendered by the learned Judicial (17) WP. 1551.2007 Magistrate, Chalisgaon. He seeks to rely on certain observations in "Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and anr. 1999 AIR SCW 1098". The Apex Court held that where the departmental proceedings and the criminal case were based on identical set of facts, acquittal of employee in criminal case can conclude the departmental proceedings. It is held that order of dismissal already passed before the decision of the criminal case was liable to be set aside in such a case. In the fact situation of the present case, not only that there is oral evidence of Shri V.P. Kulkarni and B.P. Jadhav but there are other attending circumstances including forged documents prepared on the letterhead of the petitioners and the F.I.R.s filed by other witnesses and it is difficult to say that the entire edifice of the charges is founded on same set of facts which are alleged in the criminal case (R.C.C. no. 177 of 2002). In any case, this exercise is required to be done by the enquiry committee/School Tribunal at the appropriate level before any conclusive opinion is expressed by this Court. (18) WP. 1551.2007

Mr. V.V. Dhage referred to observations in "Sukanya Apte and anr. Vs. State of Maharashtra and others 2007(4) Mh.L.J. 318". A Single Bench of this Court held that there is no provision in the M.E.P.S. Act or Rules to order compulsory retirement of the employee. It has been held that such penalty is impermissible in law. It has been observed that the Government resolution in this context cannot fill up the gap when the Rules are silent about permissibility of the penalty of compulsory retirement. There cannot be any two opinion about the legal position that the penalty of "compulsory retirement" is not provided for under the M.E.P.S. Rules. Needless to say, the petitioners committed patent error while awarding penalty of "compulsory retirement" to the respondent no.1-delinquent employee.

Though, the penalty imposed on the respondent no.1-delinquent employee is found to be outside the pale of the M.E.P.S. Rules, yet it does not mean that the respondent no.1-delinquent employee would be per-se entitled to seek reinstatement in the (19) WP. 1551.2007 service. In "Adarsh Vidya Mandir Trust and anr. V. Awadesh Narayan Komal Singh and others 2005(1) Bom.C.R. 786" a Single Bench of this Court held that when the enquiry was found to be faulty, it was not proper to direct reinstatement of the delinquent employee. Relying upon observations in "State of Punjab and others Vs. Dr. Harbhajan Singh Greasy (1996) 9 S.C.C. 322" it has been held that appropriate course is to relegate the parties before the enquiry committee or the Tribunal.

Mr. P.M. Shah referred to "Thaper Education Society and anr. Vs. Shyam Maroti Bhasarkars and others" 1997(3) Mh.L.J. 709". A Division Bench of this Court held that there was nothing wrong if the Police statements of the security guards and other witnesses were used in the domestic enquiry by the enquiry committee. He also invited my attention to "Teresa Lopes Vs. Carmelite Convent English High School and others 1996(1) Mh.L.J. 273." The fact situation in the given case stands on different footing. He referred to various other case law including "Isahr Singh V. District and Sessions Judge (20) WP. 1551.2007 and anr. 1999 AIR SCW 1109"; "Union of India and others V. Naman Singh Sekhawat 2008 AIR SCW 2813"; "Union of India and others Vs. C.M. Amrute and anr. 2005(4) Mh.L.J. 960" and "Indian Overseas Bank V. I.O.B. Staff Canteen Workers' Union and anr. AIR 2000 S.C. 1508", I do not find it necessary to discuss each of the cases for the present. The reason is that in view of "Adarsh Vidya Mandir" (Supra) proper course in the present matter is to relegate the parties to the enquiry committee with direction to issue fresh notice to the respondent no.1 regarding the proved charges, along with copy of the enquiry report and to call upon him as to why major penalty be not inflicted. It is important to mention here section 11(2)(D) empowers the School Tribunal to award lesser punishment in lieu of dismissal or removal or otherwise termination of service in an appropriate case. It is explicit from section 11(2) (E) that the School Tribunal is also empowered to give 12 months salary to an employee when it is decided not to reinstate him, by way of compensation, regard being had to loss of employment and possibility of getting or not getting a suitable (21) WP. 1551.2007 employment thereafter. Still, however, I do not think it necessary to relegate the parties to the School Tribunal for the reason that the penalty of compulsory retirement could not have been awarded to the respondent no.1-employee by the petitioners under the existing rules and the enquiry report was not furnished to him along with the first show cause notice but he was served with only the gist of the findings recorded by the enquiry committee.

In the result, the Petition is partly allowed. The parties are relegated to the enquiry committee with direction that the enquiry committee shall issue fresh notice, along with the full enquiry report, calling upon the respondent no.1-delinquent employee to explain as to why the charges be not held as proved and why any major penalty be not awarded to him. After hearing the respondent no.1-delinquent employee, the committee may take appropriate decision within the four corners of the M.E.P.S. Rules. The respondent no.1 will be entitled to receive subsistence allowance on assumption that he is deemed to have been suspended, for the period from the date (22) WP. 1551.2007 of this judgment till the procedure regarding awarding of the penalty or passing of further order, including the order of his exoneration, if any, is rendered by the petitioners. The respondent no.1 shall co-operate with the enquiry committee and shall not endeavour to delay the enquiry any more. The parties shall appear before the enquiry committee on

30.8.2010 and the further procedure shall be completed by the enquiry committee within a period of three months and de-novo order of penalty/final order may be rendered by the petitioners after consideration of the recommendations of the enquiry committee. The respondent no.1-delinquent employee shall be paid subsistence allowance w.e.f. date of this order till the final order is passed on basis of the enquiry report, as is available to a suspended employee. Rule is partly made absolute accordingly. Petition disposed of. No costs.

[V.R. KINGAONKAR, J.]