High Court
Facts
1903-wp-9260-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABADWRIT PETITION NO. 9260 OF 20241.Jivan Shikshan Prasarak Mandal,Beed Through President Govind Narayan Sarode Age. 65 years, Occ. Retired R/o. Adarsh Nagar Beed, District Beed.2. Late Bhai Udhavrao PatilMadhyamik Vidyalaya, Pimpalgaon Tq Dist Beed Through Head Master...PetitionersVERSUS1.Suresh Bhagwan PatoleAge. 47 years, Occ. Nil R/o. Sambhajinagar Nagar Road, Beed, District Beed2. The Education Officer (Secondary)Zilla Parishad, Beed...Respondents...Advocate for the Petitioners : Mr. Kamlakar SuryawanshiAGP for Respondent/State : Mr. Rajdeep D. RautAdvocate for Respondent No.1 : Mr. N.L. Jadhav…CORAM :ROHIT W. JOSHI, J.DATE :19th AUGUST, 2025ORAL JUDGMENT :1.Rule. Rule made returnable forthwith. Heard finally with theconsent of parties.2.The petitioner no.1 is educational institution and a public trustregistered under the Maharashtra Public Trusts Act, 1950. It runspetitioner no.2 school. The petitioners are aggrieved by judgment and 2903-wp-9260-2024.odtorder dated 09.07.2024 passed by the learned Presiding Officer, Laturin Appeal No.20 of 2023 filed by respondent no.1 challenging the orderof termination of his service dated 07.09.2021. The learned SchoolTribunal has quashed and set aside the order of termination dated07.09.2021 and directed the petitioners to reinstate respondent no.1 inservice on the post of Assistant Teacher with continuity and full back-wages. 3.Learned advocate for petitioners states that respondent no.1 wasworking as a LIC Agent and therefore, he was never attending theschool. He states that in view of aforesaid, the charge sheet wasframed against respondent no.1 in accordance with the provisions ofthe Maharashtra Employees of Private Schools (Conditions of Service)Regulation Act, 1977 (‘M.E.PS. Act’ for short) and the MaharashtraEmployees of Private Schools (Conditions of Service) Regulation Rules,1981 (‘M.E.P.S. Rules’ for short). He contends that apart from willfulabsenteeism, three other charges with respect to misbehavior were alsolevelled against respondent no.1. Learned advocate for petitionersstates that after holding inquiry, service of respondent came to beterminated vide order dated 07.09.2021. Learned advocate contendsthat petitioners after being served with the notice by the learnedTribunal, appeared before the Tribunal. He submits that sinceEducation Officer was not served for inordinately long period, the 3903-wp-9260-2024.odtmatter was posted from time to time for taking appropriate steps foreffecting service on the Education Officer. He refers to the order sheetdated 20.06.2024 and points out that initially, the matter wasadjourned for filing say i.e. reply to the appeal. However, subsequentlythe order sheet shows that the appeal was posted for final arguments.The next date in the matter is mentioned as 08.07.2024. Learnedadvocate for petitioners states that the matter was not on board on08.07.2024 and judgment was passed by the learned Tribunal on09.07.2024. 4.Per contra, learned advocate for respondent no.1 statesthat despite having entered appearance in the matter in November2023, the petitioners did not file written statement in the appeal. Sincethe petitioners did not contest the appeal, the learned Tribunal hasdecided the appeal on the basis of terms in the memorandum of appealand other material on record. He contends that the management hasnot conducted any inquiry in the matter and has created false record toshow that the inquiry was conducted. He justifies the order passed bythe learned Tribunal stating that since inquiry was not conducted, theonly conclusion could be that the termination order had to be set asideand reinstatement was necessary to be ordered. He thereafter justifiesthe direction for payment of back-wages pointing out that the affidavitof respondent no.1 was filed on record before the learned Tribunal
Legal Reasoning
7903-wp-9260-2024.odtand entered appearance in the month of November 2023, they havechosen not to contest the appeal. The only explanation offered is thatEducation Officer was not served and the matter was being adjournedfrom time to time for the purpose of only the respondent to take stepsfor effecting service on the Education Officer. In the considered opinionof this Court, that cannot be a ground for not filing written statement inthe appeal.11.Normally, in case where inquiry is found to be defective, liberty isgranted to the management to conduct fresh inquiry from the stage atwhich the defect creeps in the inquiry. However in present case, thestatement of allegations itself was not issued. The inquiry was initiatedin September 2016 by issuing charge sheet i.e. almost before a periodeight years from now. The respondent/management was also lethargicin contesting the appeal on merit. In such circumstances, it is notdeemed appropriate to grant leave to the management to conduct freshinquiry. The judgment passed by the learned Tribunal with respect toreinstatement in service along with continuity and all consequentialbenefits is therefore maintained. 12.As regards the back-wages, it is well settled that on terminationbeing set aside, an employee is entitled for relief of reinstatement withfull back-wages. However, if it is established that the employee wasworking elsewhere, the relief of back-wages can be denied or the 8903-wp-9260-2024.odtpercentage of back-wages can be determined based on the incomederived by the employee while working elsewhere after termination ofservice. It is also well settled that the burden of proving that theemployee was gainfully employed elsewhere is on the management.The employee, as has been held by the Hon’ble Apex Court in the caseof Deepali Gundu Surwase vs Kranti Junior Adhyapak & Ors reportedin (2013) 10 SCC 324 is only required to file an affidavit stating thathe was not gainfully employed after termination of his services whilethe appeal was pending. In the facts of present case, respondent hasfiled such affidavit. Perusal of affidavit will demonstrate thatrespondent no.1 has made omnibus statements that he was notgainfully employed elsewhere from 07.09.2021 i.e. the date oftermination of service and thereafter. It will be pertinent to reiteratethat in the inquiry in respect of subsistence allowance which wasconducted by Education Officer pursuant to the direction issued by thisCourt, it was found that respondent no.1 was working as LIC Agent.The respondent no.1 in his affidavit ought to have stated somethingabout his working as LIC Agent. Perusal of affidavit filed by respondentno.1 will demonstrate that the same is completely silent with respect tohis working as LIC Agent. Learned advocate for respondent no.1 hadduring course of hearing admitted that report of Education Officer isnot challenged by him in order to claim subsistence allowance for the 9903-wp-9260-2024.odtperiod upto 23.06.2018. 13.In view of aforesaid, in the considered opinion of this Court, itwill be appropriate in the interest of justice that the matter is remandedback to the learned School Tribunal for deciding the issue with respectto payment of back-wages afresh. 14.The petition is therefore partly allowed. The judgment and orderdated 09.07.2024 passed by the Presiding Officer, School Tribunal,Latur in Appeal No.20 of 2023 is maintained to the extent the order oftermination dated 07.09.2021 is quashed and also with respect todirections to reinstate respondent no.1 in service on the post ofAssistant Teacher in Late Bhai Udhavrao Patil Madhyamik Vidyalaya,Pimpalgaon along with continuity in service and other consequentialbenefits. However, the direction for payment of back-wages is quashed.The matter is remanded back to the learned Tribunal to decide the issueof back-wages afresh. 15.The parties shall appear before the learned Tribunal on15.09.2025. Parties to note that separate notice for appearance will notbe issued. The learned Tribunal is requested to decide the issue ofback-wages, as early as possible and in any case before 31.12.2025.The petitioners shall be at liberty to file written statement with respectto prayer for back-wages. Both parties will also be entitled to leadevidence in this regard, if they so desire. The respondent/management 10903-wp-9260-2024.odtwill not seek unnecessary adjournments in the matter.16.The learned Tribunal shall consider as to whether liability ofback-wages, if awarded, can be fastened on the State Exchequer. Therespondent no.3/Education Officer shall cause appearance in thematter in order to advance submissions in this regard. 17.Learned AGP to communicate this order to respondentno.3/Education Officer.18.Rule is made partly absolute in above terms.[ROHIT W. JOSHI J.]Mujaheed//
Arguments
4903-wp-9260-2024.odtstating that he was not gainfully employed ever since the date of histermination. He contends that no material to the contrary was placedon record by the management and the management also did not fileany counter affidavit to dispute the contention in the said affidavit.5.With respect of inquiry, learned advocate for petitioners statesthat respondent no.1 was all the while working as a LIC Agent. He hasdrawn attention of this Court to judgment dated 10.01.2019 passed bythe Division Bench of this Court in Writ Petition no.1305 of 2018. Thesubject matter of the said petition was with respect to the payment ofsubsistence allowance to him from 26.08.2016 till 23.06.2018. Thesaid petition was disposed of directing the Education Officer to considerthe documents relied by both parties and take a decision as to whetherpetitioner would be entitled to claim subsistence allowance for the saidperiod. It will be pertinent to mention that the claim of petitioner forsubsistence allowance was denied on the ground that he was workingas LIC Agent at the relevant time and was also not present at theheadquarter. The Education Officer has given a report vide coveringletter dated 05.07.2021 stating that at the relevant time, respondentno.1 was working as a LIC Agent and was also not present at theheadquarter. 6.The applicant/respondent had approached the learned Tribunalwith specific contention that his services are terminated without 5903-wp-9260-2024.odtholding any inquiry. The petitioner/management and the headmasterof the school although arrayed as respondents in the matter did notchoose to controvert the allegations by filing written statement. Thereis nothing to suggest that the charge sheet is served upon therespondent/teacher. 7.Although the petitioner i.e. management and headmaster did notfile written statement in the appeal, a copy of alleged charge-sheet isfiled along with the present petition. Perusal of documents produced onrecord by the petitioner/management will demonstrate that the chargesheet was framed without issuing any statement of allegations torespondent no.1. A detailed procedure for conducting inquiry isprescribed under the M.E.P.S. Rules. Rule 36 provides that in casewhere the management decides to hold inquiry against a teacher, itshall authorize the Chief Executive Officer to communicate thestatement of allegations to the teacher concerned and demand awritten explanation from him with respect to said allegations within aperiod seven days from the date of receipt of statement of allegations.The statement of allegations are required to be sent by registered postacknowledgment due. Rule 36 (2) provides that in case the ChiefExecutive Officer is not satisfied with the reply, if any, he shall place thesame before the management which in turn shall take a decision asnecessary inquiry shall be conducted or not. Thus in view of Rule 36 6903-wp-9260-2024.odt(1)(2), the first step towards initiation of inquiry is to issue thestatement allegations. The management can initiate inquiry against theteacher only if the Chief Executive Officer is not satisfied with the replyfurnished by the teacher and place it before the management. This isthe first safeguard provided to the teacher under statutory rules. 8.In the case at hand, admittedly statement of allegations has notbeen issued. It appears from the record that management directlyissued charge sheet dated 10.09.2016. The charge sheet placed onrecord in the present petition does not indicate that any statement ofallegations was issued to respondent no.1. The petition is alsoabsolutely silent in that regard. Since statement of allegations which isthe 1st step in Departmental Enquiry is not issued, the entire inquiry isvitiated. Likewise, perusal of the alleged charge sheet also does notdemonstrate that any documents were attached with the same. 9.Thus issuance of charge-sheet is not proved; assuming that it wasissued, it is without issuing statement of allegations, which is amandatory prerequisite and alleged charge-sheet was also notaccompanied with any document or list of witnesses. The so-calledenquiry even if conducted is therefore completely vitiated. 10.So far as the relief for reinstatement with continuity of service isgranted by the learned Tribunal in favour of respondent no.1, it needsto be mentioned that although the petitioners were served in the matter