High Court

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WP NO. 7703 OF 2024IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 7703 OF 2024 Smt. Shobha Ravindra ChaudhariAge : 55 years, Occu. : Assistant TeacherR/o. Panzara Housing SocietyAt Post Kusumbe, Tal & Dist. Dhule...PETITIONERVERSUS1.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, Dhule5.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 2024R/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. WakadeAGP for Respondent Nos. 1 to 4 : Ms. P. J. BharadAdvocate for Respondent Nos. 5 & 6 : Mr. Vivek DhageAdvocate for Respondent Nos. 7 to 9 : Mr. V. D. Hon, Senior Advocatei/by Mr. Ashwin V. Hon…CORAM:MANGESH S. PATIL & PRAFULLA S. KHUBALKAR, JJ.RESERVED ON:15.01.2025PRONOUNCED ON:28.01.2025JUDGMENT (MANGESH S. PATIL, J.) :.Heard. Rule. Rule made returnable forthwith.2/11 WP NO. 7703 OF 20242.Learned AGP waives service of notice for respondent nos.1 to 4, Mr. Vivek Dhage, Advocate waives service of notice forrespondent nos. 5 and 6 and Mr. V. D. Hon waives service of noticefor respondent nos. 7 to 9. At the joint request of both the sides, thematter is heard finally at the stage of admission.3.The petitioner is invoking the powers of this court underArticle 226 of the Constitution, and comes with following prayers:-A)…B)The Hon’ble High Court held and declared that theconstitution of the enquiry committee is without anyauthority void ab initio and further may kindly be quashedand set aside the proceedings of respondent No.7-AnilMahadu 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 chargesheet dated 12.03.2024 may kindly be set aside by directingrespondents not to conduct enquiry against petitioner andnot create any hindrance to petitioner while discharging theduties 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 maykindly be directed to promote the petitioner and allow herto discharge the duties as ‘Head Mistress’ of Adarsha HighSchool, Kusumbe, Tal. & Dist. Dhule without creating anyhindrance.4.Learned advocate Mr. Wakade would take us through thepapers and would submit that the petitioner was appointed by therespondent – Management, by following due process against asanctioned post way back in the year 1995. Her appointment wasduly approved by the Education Officer. Her service record has been3/11 WP NO. 7703 OF 2024unblemished and at no point of time, any adverse remark was madein the service record. He submitted that there has been a long-standing dispute in the management. Its one faction is of respondentnos. 5 and 6 and the other being that of respondent nos. 7 and 8.Successive change reports filed under Section 22 of the MaharashtraPublic Trust Act, 1950 (for brevity, ‘M.P.T. Act’), have been pendingwith the office of the Assistant Charity Commissioner, Dhule.5.Mr. Wakade would further submit that the regularheadmaster of the respondent – school retired on 30.06.2023. Thepetitioner, being the senior most teacher, requested for promotion tothe post of headmistress as per Rule 3 of the Maharashtra Employeesof Private Schools (Conditions of Services) Rules, 1981 (for brevity,‘M.E.P.S. Rules’). Ignoring the seniority, respondent no. 7 grantedpromotion to respondent no. 8, who is his wife, on 01.07.2023. Hewould submit that since the petitioner was claiming promotion to thepost, respondent no. 7 started harassing her with a maliciousintention. He initiated a disciplinary enquiry on his own. She wasserved 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 inlaw. In spite of her objection, respondent nos. 7 and 8 persisted withthe enquiry, having no authority in law. He would advert our4/11 WP NO. 7703 OF 2024attention to the reply given by the Assistant Charity Commissionerconcerned, whereby he intimated respondent nos. 7 and 8 that in thewake of the fact that several change reports have been pending withhis office, nothing could be said as to which faction was in power. Hewould submit that the faction of respondent nos. 7 and 8, is inminority 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’sgrievance, respondent no. 4 – Education Officer even directed not toproceed with the enquiry and still it has been proceeded with. Inspite of the order of this Court granting ad interim stay to thedisciplinary enquiry, respondent nos. 7 and 8 allowed it to continue.He, therefore, submitted that the disciplinary enquiry having beeninitiated mala fide, without concurrence of an approved managingcommittee and in a vindictive manner, is liable to be quashed and setaside.7.So far as the petitioner’s claim for appointment to thepost of headmistress, Mr. Wakade, learned advocate for the petitionerwould submit that in the wake of the ongoing dispute andparticularly, the request of the petitioner for appointment to the postof headmistress on the basis of seniority, respondent no. 8 tendered5/11 WP NO. 7703 OF 2024her resignation from the post of headmistress on 19.08.2023, whichhas been accepted by respondent no. 7 on 11.09.2023.8.Lastly, Mr. Wakade would advert our attention to thedecision of a division bench of this Court in the matter of SayyedYusuf Sayyed Moosa V/s. The State of Maharashtra and Ors. (WritPetition No. 9268/2017 – decided on 20-07-2018). He would submitthat in similar set of facts where there was a dispute in themanagement and the change reports were pending before the officeof the Assistant Charity Commissioner, this Court had quashed andset aside the disciplinary enquiry and had directed the change reportsto be decided.9.Mr. Dhage, learned advocate for respondent nos. 5 and6, one of the factions in the management, would support thepetitioner.10.Mr. Hon, learned senior advocate for respondent nos. 7to 9 would raise a preliminary objection regarding maintainability ofthe petition on the ground that the petitioner has already participatedin the disciplinary enquiry and is now estopped from questioning itsvires. He would also submit that in light of the decision of the fullbench 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 , thepetitioner has the alternate remedy of preferring an appeal against6/11 WP NO. 7703 OF 2024the decision in the disciplinary enquiry under Section 9 of theMaharashtra Employees of the Private Schools (Conditions ofServices) Regulation Act, 1977 (M.E.P.S. Act) and therefore, she is notentitled to invoke the powers of this Court under Article 226 of theConstitution.11.Mr. Hon would further submit that according to thePublic Trust Register (PTR), name of respondent no. 7 is appearingand it cannot be said that he is not in the power and authority as asecretary of the trust and to direct the disciplinary enquiry.12.We have considered the rival submission and perused thepapers.13.Taking up the issue regarding maintainability of the writpetition, in our considered view, merely because the petitionerreplied to the notice and even participated in the disciplinary enquiry,will not estop her from questioning its sustainability, particularly inlight of the fact that, admittedly, there has been a long-standingdispute in the management and several change reports have beenpending adjudication in the office of the Assistant CharityCommissioner. It would be a matter of authority of the trustees likerespondent no. 7, to initiate the disciplinary enquiry. Even there isnothing on record, placed by respondent nos. 7 and 8, todemonstrate that the issue regarding initiation of the disciplinary7/11 WP NO. 7703 OF 2024enquiry was ever taken to the managing committee much less dulyauthorizing and approving initiation of the enquiry. Therefore, itcannot be said that merely by participating in the enquiry, thepetitioner has waived her right to question its vires.14.As far as availability of alternate and efficacious remedyin the form of an appeal under Section 9 of the M.E.P.S Act, 1977 isconcerned, that remedy would be available to an employee if andwhen she is met with some punishment. When admittedly, thedisciplinary enquiry against the petitioner is still to reach to thatstage, 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 Courtwill have its own limitation in undertaking any scrutiny aboutsustainability of the charges, more so, when the disciplinary enquiryis still to be concluded. Precisely for this reason, in our consideredview, no objective scrutiny about sustainability of the charges can beundertaken.16.We are merely concerned with the authority ofrespondent – Management, to initiate the disciplinary enquiry,particularly in light of the fact that admittedly, there has been adispute in the management and there is nothing on the record to8/11 WP NO. 7703 OF 2024conclusively decide as to which of the factions is legally holding themanagement.17.In this regard, the communication dated 14.06.2024 ofthe office of Assistant Charity Commissioner at Dhule, addressed tothe Education Officer is material. Apart from the proceedings underSections 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 expresslymentions that in light of the pendency of numerous change reports,even the Assistant Charity Commissioner was unable to make anycomment as to which of the factions was holding the management ofthe trust. It is, therefore, evident that even the office of the CharityCommissioner is unable to inform about the authorized managingcommittee.18.Conspicuously, though the affidavit-in-reply ofrespondent nos. 7 to 9 mentions that they are controlling themanagement, it has not been mentioned as to which of the changereports filed by them have been accepted by the Assistant CharityCommissioner. Even it is conspicuously silent about the decision toinitiate the disciplinary enquiry against the petitioner was ever takento the managing committee and it resolved to initiate it. This makes itevident that even the inquiry has been initiated against the petitioner9/11 WP NO. 7703 OF 2024without taking up the agenda to the managing committee leading tosome resolution.19.Exactly in similar fact situation, when several changereports were pending with the office of the Charity Commissionerand still the disciplinary enquiry was initiated by one of the factions,in the matter of Sayyed Yusuf Sayyed Moosa (supra) a division benchof this Court quashed and set it aside on the ground that in absenceof any authorized managing committee, no such enquiry could havebeen initiated.20.Under these circumstances, when admittedly, no changereport has been accepted by the Assistant Charity Commissioner, itcannot be said that respondent nos. 7 and 8 could have initiated thedisciplinary enquiry in a lopsided manner. It is liable to be quashedand set aside.21.So far as the claim of the petitioner to the post ofheadmistress is concerned, the aforementioned reasons would applywith equal vehemence, inasmuch as, in the absence of any authorizedmanagement, even no writ of mandamus can be issued directing themanagement to consider her case for grant of promotion to the postof headmistress, being the senior most teacher.10/11 WP NO. 7703 OF 202422.In the light of above, the Writ Petition is partly allowed.23.The impugned disciplinary enquiry is quashed and setaside.24.The rival factions shall approach the Assistant CharityCommissioner and may solicit order for provisional acceptance of achange report in the light of Section 22(2) proviso. It is clarified thatthis order shall not be treated as exoneration of the petitioner fromthe charges/imputation.25.Rule is made absolute in above terms.[ PRAFULLA S. KHUBALKAR ]JUDGE[ MANGESH S. PATIL ] JUDGEjhs/-11/11