Writ Petition No. 8093 of 2022 · Bombaybench High Court
Case Details
2025:BHC-AUG:22713 1wp-8093-22 and 5124-22IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.8093 OF 20221.The SecretaryGokul Samajik and Educational SansthaGaurgaon Tq. KallamDist. Osmanabad.2.The PresidentGokul Samajik and Educational Sanstha,Gaurgaon Tq. Kallam.…..PETITIONERSVERSUS1.Pradeep Bhairavnath ShingareAge: 43 years, Occu. Headmaster,Jaibhavani High School, Gaurgaon,Tq. Kallam, Dist. Osmanabad,R/o Khamgaon, Tq. & Dist. Osmanabad.2.The Education Officer (Secondary)Zilla Parishad, Osmanabad.…..RESPONDENTSWITHWRIT PETITION NO.5124 OF 2022Pradip s/o Bhairavnath ShingareAge: 47 years, Occu: Service,R/o: Khamgaon, Taluka and District Osmanabad.…..PETITIONERVERSUS1.The SecretaryGokul Samajik and Educational SansthaGaurgaon Tq. KallamDist. Osmanabad.
Legal Reasoning
2wp-8093-22 and 5124-222.The PresidentGokul Samajik and Educational Sanstha,Gaurgaon Tq. Kallam, Dist. Osmanabad3.The Education Officer (Secondary)Zilla Parishad, Osmanabad.…..RESPONDENTS______________________________________________________Mr. S. S. Jadhavar, Advocate for petitioner in WP.No.5124/2022 and for respondent no.1 in WP. No.8093/2022Mr. T.M. Venjane, Advocate for petitioner in WP.No.8093/2022 and for respondent nos.1 and 2 in WP.No.5124/2022.Mr. V. S. Badakh, AGP for respondent-State______________________________________________________CORAM :ROHIT W. JOSHI, J. DATED :05TH AUGUST, 2025JUDGMENT :-.Both these petitions arise out of same judgment andorder dated 07.12.2021, passed by the learned PresidingOfficer, School Tribunal, Solapur in appeal no.12 of 2017. Thepetitioner in Writ Petition No.5124 of 2022 is the originalappellant/employee and the petitioners in Writ PetitionNo.8093 of 2022 are Secretary and President of GokulSamajik and Educational Sanstha Gaurgaon, Tq. Kallam, Dist.Osmanabad. The petitioner in Writ petition No. 5124 of 2022 3wp-8093-22 and 5124-22was working on the post of head Master in a school run byGokul Samajik and Educational Sanstha Gaurgaon, namely,Jaybhavani High School. The petitioners in Writ Petition No.5124 of 2022 and 8093 of 2022 will hereinafter referred to asemployee and management respectively. 2.The employee was initially appointed on the post ofAssistant Teacher with Jaybhavani High School, Gaurgaon,run by the petitioner/management. He was subsequentlypromoted to the post of Head Master in the said school. Hisservices have been terminated by the management vide orderdated 25.04.2017 with effect from 26.04.2017. Employeechallenged the order of termination by filing appeal as perSection 9 of the Maharashtra Employees of Private Schools(Conditions of Service) Regulation Act, 1977 (hereinafterreferred to as ‘the MEPS Act’) vide appeal no.12 of 2017.3.The learned Tribunal has held that the inquiryconducted by the management was not in accordance withRules 33, 36 and 37 of the Maharashtra Employees of PrivateSchools (Conditions of Service) Rules, 1981 (hereinafterreferred to as ‘the MEPS Rules’) and has accordingly set aside 4wp-8093-22 and 5124-22the order of termination dated 25.04.2017. Having quashedthe order of termination, the learned Tribunal allowed themanagement to conduct fresh inquiry in accordance with lawdirecting that the inquiry be completed within period of sixmonths after the end of appeal period. Needless to mentionthat the judgment and order passed by School Tribunal in anappeal filed under the MEPS Act is not subject to any furtherappeal. The learned Tribunal directed that till the completionof inquiry, the employee will be treated under suspension andwill be entitled to receive subsistence allowance.4.The employee has challenged Clauses 3 and 4 of theoperative order on the ground that the learned Tribunal couldhave at best granted permission or leave to conduct freshinquiry, however, direction for conducting fresh inquiry couldnot have been issued and also on the ground that having setaside the order of termination, the learned Tribunal ought tohave passed an order of reinstatement in service in favour ofthe employee.5.Per contra, the management has also challenged thejudgment and order on the ground that the findings by the 5wp-8093-22 and 5124-22learned Tribunal that the inquiry was not conducted inaccordance with law is incorrect and as such, the order oftermination ought not to have been quashed.6.The employee has filed the petition on 06.02.2022.Notice in the said petition was issued vide order dated06.06.2022. Office note dated 29.07.2022, records thatservice on respondent nos.1 and 2, Secretary and President ofmanagement was completed before the said date. Themanagement has filed the petition on 07.05.2022. Notice inthe said petition was issued vide order dated 02.08.2022.7. Initially, on 06.08.2015, the President of managementissued statement of allegations to the employee calling uponhis explanation with respect to allegations levelled therein.Allegations are pertaining to incompetence, particularlyinability to teach his subject properly, failure to obeyinstructions and willful and deliberate dereliction of duty innot furnishing the audit report on time; insubordination andfinancial irregularity. The employee furnished his response tothe statement of allegations on 17.08.2015, denying theallegations. As regards the completion of audit, the employee 6wp-8093-22 and 5124-22came up at the stand that the management did not extendproper co-operation, which was the reason for the delay. Asregards financial irregularity, he stated that the allegation thathe was receiving House Rent Allowance (HRA), although hewas not staying at the head quarter was incorrect.8.Thereafter, the Secretary of the management issuedletter dated 24.08.2015, to the Education Officer, seekingpermission to initiate inquiry against the employee. TheEducation Officer issued letter dated 03.10.2015, stating thatthe management may proceed with inquiry in accordance withthe MEPS Rules by constituting Inquiry Committee as per thesaid Rules. It will be pertinent to state that the permission ofEducation Officer is not required for initiating inquiry againstan employee and the Education Officer has neither grantednor refused the permission vide communication dated03.10.2025. The Education Officer has merely stated that themanagement may proceed with the inquiry in accordance withthe MEPS Rules. Initially one Udaysinh Vitthalrao Raje-Nimbalkar appointed on the Inquiry Committee as StateAwardee Teacher. However, since the said State Awardee
Decision
7wp-8093-22 and 5124-22Teacher had expressed inability to work as member of theInquiry Committee, he was substituted by one GovindDattatray Bhure as member of Inquiry Committee. Theemployee appointed one Prakash Shinde as his representativeon the Inquiry Committee. The petitioner/management issuedchargesheet dated 20.08.2016. The chargesheet is issuedunder signature of Secretary of the management. Theemployee filed reply to the chargesheet on 06.09.2016. Theinquiry was conducted from 05.10.2016 till 01.04.2017. In themeanwhile, the employee was placed under suspension videorder dated 16.01.2017.9.After completion of inquiry, the two members namely;the President and State Awardee Teacher furnished reportdated 21.04.2017 recommending termination of services ofthe employee. The employee’s representative furnishedseparate report dated 24.04.2017, recommending discharge.In view of the above, the management issued terminationorder dated 25.04.2017, thereby terminating services of theemployee with effect from 26.04.2017.10.As stated above, the employee filed appeal challenging 8wp-8093-22 and 5124-22the order of termination being appeal no.12 of 2017. Perusalof memorandum of appeal will indicate that the employeeraised grounds pertaining to correctness of findings recordedin inquiry report dated 21.04.2017, furnished by the Presidentof the management and State Awardee Teacher. Apart fromthis, grounds pertaining to breach of provisions of the MEPSRules particularly Rules 36 and 37 thereof are also raised. Theemployee also contended that the inquiry was liable to bequashed since he was not paid any amount towardssubsistence allowance from the date of suspension till the dateof termination. The management filed its written statementopposing the contentions raised. 11.The learned Tribunal after hearing the parties, hasallowed the appeal vide judgment and order dated07.12.2021. The learned Tribunal has held that the decision toinitiate inquiry against an employee is required to be taken bythe management. It is held that although, it is the contentionthat decision to initiate inquiry was taken by the management,the pleadings does not suggest that the decision taken by suchmanagement. It is observed that there is no reference to the 9wp-8093-22 and 5124-22resolution passed by the management taking decision toinitiate inquiry against the employee. It is further observedthat names of members of Inquiry Committee were notcommunicated to the employee by registered post as requiredunder Rules 36(3). The learned Tribunal has also held thatthe petitioner was suspended after commencement of inquiryand did not take any decision with respect to payment ofsubsistence allowance. It is further held that the managementhad also not sought permission of the Deputy Director ofEducation before suspending the employee and also did notpay the subsistence allowance, which cause serious prejudiceto the employee. It is further observed that representative ofthe employee was not allowed to conduct cross examinationof the management’s witnesses, which resulted in breach ofprinciples of natural justice. The learned Tribunal has alsoobserved that the last date of inquiry was 01.04.2017, whichwas the date fixed for recording evidence of the employee. Itis held that thereafter, next meeting was held on 21.04.2017when inquiry report was submitted by two members viz;President and State Awardee Teacher. It is also observed thatthe explanation furnished by the employee on 05.04.2017, 10wp-8093-22 and 5124-22although sent on correct address, was returned unserved as itwas not accepted. Lastly, it is held that the material on recorddid not indicate that all the three members had applied theirmind in joint deliberation for purpose of preparing inquiryreport. It is held that the report is vitiated since there was nojoint consolidation on deliberation by all three members of theInquiry Committee. In such curcumstances, it is held that theinquiry was defective and order of termination wasaccordingly quashed and set aside. However as mentionedabove, the learned Tribunal has directed the management tohold fresh inquiry and conclude the same within period of sixmonths. It is also directed that the employee will be treated asunder suspension during the inquiry period.12.The learned Advocate for the employee Mr. Jadhavarcontends that once the order of termination was set aside, itwas incumbent for the learned Tribunal to pass order ofreinstatement in service in favour of the employee. He furthercontends that although an affidavit was filed stating that theemployee was not gainfully employed after his termination,still the learned Tribunal did not award any back wages. He 11wp-8093-22 and 5124-22further contends that the learned Tribunal could not havedirected the employer to conduct inquiry and at best leavecould be granted to conduct inquiry, if the employer sodesired.13.Per contra, Mr. Venjane, learned Advocate for themanagement argues that the learned Tribunal has erred inholding that the inquiry was vitiated. He states that theinquiry is conducted in accordance with law and further thatthe allegations against the employee are very serious innature. He contends that the learned Tribunal should havedismissed the appeal. Mr. Venjane criticizes the finding by thelearned Tribunal that the inquiry was vitiated on the groundthat name of State Awardee Teacher was not communicatedby registered post. He also criticizes the finding thatopportunity of cross examination was not give to theemployee. His contention is that employee was inviting uponcross examination to be conducted by his representative onthe Inquiry Committee, which is legally impermissible. Hefurther states that assuming that there are some technicaldefects in the inqiury, unless prejudice is established, that by 12wp-8093-22 and 5124-22itself cannot be a ground for setting aside order oftermination.14.Mr. Venjane, the learned Advocate for the managementis right in his submission that the inquiry could not be said tobe vitiated only because names of members of InquiryCommittee were not communicated to the employee byregistered post. In this regard, it needs to be stated that theemployee was made aware about the names of members ofthe managing committee and he had also appointed hisnominee/representative on the committee. As such, noprejudice is caused to the respondent only because the nameswere not communicated by registered post.15.Mr. Venjane is also correct in his submission that therepresentative of employee on the Inquiry Committee couldnot conduct cross-examination of the management’switnesses. The Inquiry Committee under the Rules is a threemember committee. In case of inquiry against a head, theInquiry Committee must comprises of the President, one StateAwardee Teacher, chosen by the President and one member tobe nominated by the head. The three member committee is 13wp-8093-22 and 5124-22constituted for the purpose of conducting inquiry. Theemployee’s nominee on the Inquiry Committee cannotfunction as defence representative. The function performed byan Inquiry Committee in a disciplinary proceeding is a quasijudicial function. The members of Inquiry Committee,irrespective of the person who has appointed them mustfunction independently as an individual performing quasijudicial function. The teacher’s nominee cannot act as hisrepresentative while functioning as member of InquiryCommittee.16.The learned Tribunal has failed to appreciate this aspectof the matter and has erred in holding that the inquiry wasvitiated because the employee’s nominee on the InquiryCommittee was not permitted to conduct cross examination ofthe management’s witnesses.17.However, the inquiry is vitiated in the present case onother grounds. Under Rule 37 of the MEPS Rules, thechargesheet has to be prepared by the management. In thepresent case the chargesheet is issued under signature of theSecretary. There is no statement in the chargesheet that it is 14wp-8093-22 and 5124-22framed by the management, likewise, no document isproduced to indicate that the chargesheet is framed by themanagement. The learned Tribunal has held that thechargesheet in the present case is not framed by themanagement and therefore inquiry gets vitiated on thisground. The finding recorded by the learned Tribunal in thisregard appears to be correct. Since, the chargesheet is notframed by the competent authority, inquiry conducted basedon such chargesheet will be vitiated. Consequently, the orderof termination will also have to be set aside.18.It must also be mentioned that three members InquiryCommittee functions as one committee, the members of thecommittee have to furnish the inquiry report together. Even if,they cannot agree on the conclusions, at least they mustdeliberate over the matter together. In the present case, theInquiry Committee has furnished two separate reports. Thereis no material on record to indicate that the employee’snominee was called for joint deliberation. There is nothing toinfer that joint deliberation was done by all three members ofthe Inquiry Committee. The inquiry report is certainly vitiated 15wp-8093-22 and 5124-22on this Count. 19.In view of the above, it must be stated that thechargesheet in the present case does not appear to be framedby the management and likewise, the members of InquiryCommittee have also not indulged in joint deliberation for thepurpose of preparing inquiry report. The inquiry proceedingsare indeed vitiated as is rightly held by the learned Tribunal.20.In view of the above, the learned Tribunal was justifiedin setting aside the order of termination. However, while theorder of termination was set aside, it was necessary to pass anorder of reinstatement. The natural consequence of settingaside order of termination will be that the employee will beentitled reinstatement in service. The learned Tribunal hasdirected the management to initiate inquiry against theemployee and has stated that the employee shall be treated asunder suspension during the pendency of the inquiry. This willindicate that the learned Tribunal was aware of the legalposition that the fresh inquiry cannot be conducted unless theemployee is initially reinstated in service. It appears that orderof reinstatement remained to be passed due to oversight. 16wp-8093-22 and 5124-2221.Mr. Jadhavar, the learned Advocate for the employeecriticizes Clause 3 of the operative order on the ground that atbest, leave could not have been granted to the management toconduct fresh inquiry, since, the inquiry was held to bevitiated. He contends that direction for holding inquiry couldnot have been issued. He further contends that the judgmentis delivered on 07.12.2021 and inquiry was directed to becompleted within a period of six months and despite this, themanagement did not initiate inquiry within the stipulatedperiod and filed the petition on 07.05.2022, after a period offive months from the date of judgment and order passed bythe learned Tribunal. He therefore contends that inquiry is notinitiated by the management till the date, although, there isno interim order passed in either petition restraining it fromdoing so.22.Mr. Venjane submits that inquiry was not conducted interms of order passed by the learned Tribunal since theemployee had challenged the said judgment and petition filedby the employee is pending.23.Although, the employee has challenged the judgment 17wp-8093-22 and 5124-22and order passed by the learned Tribunal, this Court hasmerely issued notice in the said petition. This Court has notgranted any interim relief in favour of the employeerestraining the management from conducting inquiry. It mustalso be stated that the management has entered appearance inthe matter. It has also filed a substantive petition challengingthe judgment and order passed by the learned Tribunal.Management is assailing the order on the ground that theinquiry is conducted in accordance with law. In the event,there was any confusion on the part of the management, itwas open for it to seek appropriate orders from this Court inthis regard.24.Employee is placed under suspension with effect from16.01.2017. It is not in dispute that he is out of employmenttill date. The learned Advocate for the employee submits thatsuspension allowance is also not paid to him. The learnedTribunal has also recorded finding in this regard. Although,the learned Advocate for the management states that someamount is paid towards suspension allowance, themanagement has not placed any documentary evidence on 18wp-8093-22 and 5124-22record indicating payment of the same. It needs to be heldthat employee has not received any amount either towardssalary or towards suspension allowance till the date i.e. for aperiod of eight years and seven months. At this stage, it willbe unfair and unjust to permit the management to conductinquiry against the employee. It was open for the managementto conduct inquiry against the employee in terms of judgmentdated 07.12.2021, passed by the learned School Tribunal.However, despite lapse of a period of over four years andseven months from the date of judgment, the management hasnot initiated disciplinary inquiry against the employee. In suchcircumstances, Clause 3 of the operative order of thejudgment dated 07.12.2021, will have to be quashed. Themanagement cannot be permitted to conduct inqiury againstthe employee at this stage having regard to inordinate delayfor which no worthwhile explanation is offered. This Court isalso of the opinion that serious prejudice will be caused to therespondent/employee if management is allowed to conductinquiry against him on the ground that the employee has notreceived suspension allowance. 19wp-8093-22 and 5124-2225.Although, normally when order of termination isrequired to be set aside due to any defect in the inqiury, theemployer is granted permission to chore the defect by holdinginquiry from the stage from which illegality or irregularitycreeps in the disciplinary inqiury or even by allowing toconduct de novo inquiry. However, in the case like the presentwhere the employee has not received suspension allowancefor a period of over eight and a half years and themanagement has not initiated inquiry for a period of over fourand a half years from the date of judgment passed by thelearned Tribunal, it will be unfair and unjust to allow themanagement to conduct fresh inquiry against the employee atthis stage. Clause 3 of the operative order therefore needs tobe quashed and set aside.26.Mr. Jadhavar states that the employee has made astatement in the appeal that he was not gainfully employedelsewhere after termination of services. He contends thatthere is no contrary statement by the management in itsreinstatement. He further contends that employee hasdischarged his initial burden by making averment that he was 20wp-8093-22 and 5124-22not gainfully employed elsewhere after the date oftermination. He contends that upon such statement beingmade, the burden that the employee was gainfully employedelsewhere will shift on the management. Mr. Jadhavarcontends that the management has failed to discharge the saidburden in as much as it has failed to bring any material onrecord to prove gainful employment of the employeeelsewhere. He therefore contens that on the termination beingset aside, order of back wages must follow as a matter ofcourse. 27.Per contra, Mr. Venjane contends that mere statementthat employee was not gainfully employed will not serve thepurpose. In order to discharge the initial burden, theemployee must also explain as to how he could make bothends meet while he was out of employment. He contends thatsince the order of termination is being set aside, a technicalground order of back wages should not be passed.28.Having heard the rival submissions on the point of backwages, in the considered opinion of this Court, the employeehas made a definite statement that he was not gainfully 21wp-8093-22 and 5124-22employed elsewhere after termination of his services. Themanagement has been unable to bring any contrary materialon record. However, it is also true that the employee has notexplained as to how he had survived for this long perioddespite being out of employment. In such circumstances, inthe considered opinion of this Court, ends of justice will besubserved by holding that the employee will be entitled to 75percent of amount of his salary from the date of terminationtowards back wages. The employee will be entitled to fullsalary with effect from 07.12.2021 i.e. the date of judgment ofthe learned Tribunal.29.The parties have placed on record judgment dated07.07.2025, in the matter of Bhagwan Ramrao Sarse Vs. TheChief Executive Officer, Late Atul Shikshan Prasarak MandalAnd Ors. (Writ Petition No.806 of 2025-Aurangabad Bench).In the said matter, services of an employee were terminatedand order of termination was set aside on the ground that theinquiry was defective. This Court directed that the employeewas required to be reinstated in service for the purpose offresh inquiry. It was held that the employee will be entitled to 22wp-8093-22 and 5124-22subsistence allowance pending the disciplinary inquiry. Inview of the fact that the school was admitted to grant-in-aid,this Court directed the management to forward bills of theemployee for subsistence allowance to the Education Officerwith further directions to the Education Officer to release thebills within a period of two months. Similar view is taken bythis Court in the matters of Arpan Shikshan Prasarak Sanstha& Anr Vs. The education officer (primary), amravati (writpetition no.6842 of 2015 dt.26.09.2016-nagpur db) andku. Sudarshani D/o. Damduji Thul Vs. The Presiding Officer,Nagpur (Civil Application No.1395 of 2015 in Writ PetitionNo.1347 of 2001 Dt.12.09.2017-Nagpur SB). Both these casesrely upon judgment of the Hon’ble Supreme Court in thematter of Educational Society and Ors Vs. State ofMaharashtra and Ors., reported in (2016) 3 SCC 512, whereinthe Hon’ble Supreme Court has held that in case whereservices of an employee are terminated and reinstatement isordered with back wages, normally the liability to makepayment of back wages will be on the State Exchequer if theschool is admitted to grant in aid, appointment of theemployee was duly approved and the post was not filled in by 23wp-8093-22 and 5124-22the employer management. However, the Hon’ble SupremeCourt has also stated that in certain situations, the liability tomake payment of back wages cannot be fastened on the StateExchequer. In the facts of the said case, it was held thatpayment of back wages could not be directed to be made fromState Exchequer, since Inquiry Committee was not constitutedas per rules, mandatory provisions of law were not followedand the punishment inflicted by the management was held tobe without jurisdiction.30.The learned Advocates appearing for the employee andthe employer jointly submit that in the facts of the presentcase, it will be expedient that the payment of unpaid salary isdirected to be made by the State Exchequer, since the schoolis admitted to grant in aid and the appointment of employeewas duly approved.31.Each case is required to be examined in the backdrop ofits own facts. Blanket directions for payment of back wages bythe State cannot be issued. The appropriate course to beadopted will be that the management can forward pay billswith respect to back wages of the petitioner to the Education 24wp-8093-22 and 5124-22Officer with request to release the amount of back wagespayable to him. If the pay bills are cleared, back wages can bepaid through the State Exchequer. However, if the pay billsare not cleared, the management will have to bear the burdenof payment of back wages. It will be open for the authority,competent to release the grants to take appropriate decision inthis regard. The said decision be taken having regard to thefacts of the case. In the event, the bills are not cleared, it willbe open for the management to take the recourse toappropriate legal proceeding in that regard. However, themanagement must pay the amount of back wages and salarywith effect from 07.12.2021 i.e. the date of judgment by thelearned Tribunal to the employee on or before 31.12.2025.32.In view of the above Writ Petition No. 8093 of 2022 isdismissed.33.Writ petition No.5124 of 2022 is partly allowed asunder:a)Clauses 3 and 4 of the operative order of thejudgment and order dated 07.12.2021, passed bythe learned Presiding Officer, School Tribunal 25wp-8093-22 and 5124-22Solapur in appeal no.12 of 2017 are quashed andset aside.b)The respondent nos.1 and 2, Secretary andPresident respectively, of Gokul Samajik andEducational Sanstha, Gaurgaon are directed toreinstate the petitioner, ‘Pradip BhairavnathShingare’ in service forthwith with continuity andall consequential benefits alongwith 75 percentback wages and full salary from 07.12.2021 andonwards till the date of reinstatement in service tobe paid on or before 31.12.2025.34.Civil Application, if any, stands disposed of.( ROHIT W. JOSHI, J. )Rushikesh/2025